Competency and supervision, guilty verdict returned in landmark WHS prosecution over road accident
Key Takeaways
• A national employer was convicted after failing to adequately assess a new driver's competency.
• The court found that competency assessments and appropriate supervision could have reduced the risk.
• The case highlights why organisations must verify competence before assigning high-risk work.
• The lessons apply well beyond transport to construction, manufacturing, utilities and other high-risk industries.
A national employer was found guilty of eight WHS charges, relating to its failure to adequately check the competencies of a new hire, who later caused a road accident resulting in two deaths.
South Australian Magistrate Simon Smart found Cleanaway Operations Pty Ltd (formerly Transpacific Industries Pty Ltd) breached its duty of care when it failed properly assess driver Darren Hicks’s competency to drive the manual road tanker or control it on the downhill parts of the route he had to travel. Hicks had only recently obtained an unrestricted heavy vehicle licence and been employed by Cleanaway for just five days, Magistrate Smart found.
The magistrate said the company should have been alert to the associated risks, but had failed to take any “obvious, rudimentary and necessary“ safety measures before assigning him his task on that day.
In August 2014, Hicks lost control of the tanker truck he was driving and it reached speeds of more than 150km/h before colliding with three cars at the intersection of the South Eastern Freeway and Cross Road in Adelaide. Two people died from their injuries and two others were seriously injured, including Hicks.
As reported by OHS Alert in August 2016, national WHS regulator Comcare charged Cleanaway with eight breaches of the Commonwealth WHS Act. Each charge, made under section 32, carried a maximum penalty of $1.5 million. Comcare alleged Cleanaway breached its duty of care in failing to provide Hicks with adequate training and supervision, including on “safely negotiating the freeway’s steep descent from the Adelaide Hills, using arrester beds and driving a heavy vehicle with a manual gearbox“.
The employer pleaded not guilty but Magistrate Smart found this week that each charge was made out.
Between obtaining his heavy vehicle licence and the day of the incident Hicks had not driven a heavy vehicle with a manual transmission, the Magistrate found.
Cleanaway had only assessed the driver in driving an automatic truck but assigned him a manual truck on the day of the accident. Hicks did not recall having been asked by anyone at Cleanaway if he had driven this type of vehicle before or being provided training on how to drive it, the court heard.
Magistrate Smart said it was beyond reasonable doubt that Cleanaway recognised the importance of undertaking competency-based driver assessments to reduce safety risk. It employed trainers and provided extra vehicles for this purpose.
But it failed to maintain a system of work that prevented Hicks from driving without proper supervision until his competency in relation to all the vehicles he was required to drive was determined, he said.
“An assessment by [Cleanaway] itself of the competence of the driver Hicks to perform the identified task would have given [Cleanaway] direct knowledge of his level of competence to undertake those tasks,” Magistrate Smart said.
A proper check of his competencies would have provided Cleanaway with the knowledge to only assign him tasks of which he was capable, thus minimising the risk of a crash, he said.
Key Lessons for Employers
This landmark prosecution reinforces several important lessons for organisations managing workplace health and safety. Effective competency management extends beyond meeting compliance requirements—it's about ensuring workers have the knowledge, skills and support to perform their roles safely.
1. Verify Competency, Not Just Qualifications
Holding a licence or formal qualification does not necessarily demonstrate that a worker is competent to perform a specific task. Employers should assess both theoretical knowledge and practical capability before assigning high-risk work, particularly when workers are using unfamiliar equipment or operating in new environments.
2. Match Workers to the Task
Competency is task-specific. A worker who is experienced operating one type of equipment may require additional training or assessment before safely operating another. Consider the complexity of the task, workplace conditions and the worker's previous experience when allocating responsibilities.
3. Provide Appropriate Supervision
New employees, contractors and workers undertaking unfamiliar tasks should receive appropriate supervision until they have demonstrated their ability to work safely and independently. Ongoing supervision also provides opportunities to identify risks and reinforce safe work practices.
4. Document Competency Assessments
Maintaining clear records of competency assessments, training and supervision is an essential part of demonstrating due diligence. Accurate documentation helps verify that workers have been assessed appropriately and provides evidence of compliance should an incident occur.
5. Review Your Induction Process
A comprehensive induction should do more than introduce workplace policies. It should ensure workers understand site-specific hazards, safe work procedures, emergency processes and the expectations of their role before commencing work.
Competency Assessment Checklist
Use this checklist to help ensure workers are appropriately assessed before undertaking high-risk tasks:
- Verify licences, certifications and relevant qualifications.
- Assess practical competency through observation or demonstration.
- Confirm the worker has experience with the specific equipment or task.
- Identify any additional training or supervision requirements.
- Record competency assessments and supporting evidence.
- Ensure the worker understands site-specific hazards and procedures.
- Provide ongoing supervision where appropriate, particularly for new starters.
- Reassess competency following role changes, extended absences or the introduction of new equipment or processes.
By implementing a structured competency assessment process, organisations can reduce workplace risk, strengthen their safety culture and better fulfil their obligations under Australian Work Health and Safety legislation.
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