Truck Driver Killed by Oncoming Truck

Weekly WHS Article 20th June 2024

What happened? 

A large, refrigerated transport business has just been convicted and fined $800,000 in a NSW court following an incident in 2021 where one of their truck drivers was struck by an oncoming vehicle resulting in the person’s death. This happened at nighttime during a vehicle changeover close to a disused service station for heavy vehicles in rural New South Wales.

The service station at this location used to be used as a changeover point for heavy vehicles travelling between Sydney and Brisbane to undertake uncoupling and coupling of truck trailers until it closed in May 2016. Following the closure drivers began using the road adjacent to the old service station to conduct changeover activities. This road was a 370-meter stretch of single lane road without lighting but with a speed limit of 100kph. 

The transportation company was aware of this practice and continued to direct drivers to conduct changeovers at the site for years after the service station had closed. 

On the night of the incident, a total of 11 heavy vehicles were parked on the shoulders of the road. The driver, who was not wearing high visibility clothing, walked out into the northbound lane of the road during the changeover process and was struck by a truck travelling at approximately 75km per hour. The driver died at the scene.

Legal obligations

Per Clause 32 of the NSW WHS Regulation 2017, it is the responsibility of the business to manage WHS risks. This is in conjunction with Section 19 of the WHS Act which states that the primary duty of care responsibility for the safety and wellbeing of the people under the employ of a business rests with the business in the first place. 

Section 27 of the WHS Act further charges directors, CEOs, secretaries and other top-tier management people who fit the definition of “officer” under the Corporations Act 2001 with duties that ensure proof of this primary duty of care by the business. 

Charge

In the WHS Act there are three categories of penalties for breaches with Category 1 being the most serious (wilful and flagrant acts) and Category 3 being the least serious. These are described in Sections 31-33 of the WHS Act.

The Court found the transport company guilty of a Category 2 offence under Section 32 of the Act:  

A person commits a category 2 offence if—

(a) the person has a health and safety duty; and

(b) the person fails to comply with that duty; and

(c) the failure exposes an individual to a risk of death or serious injury or illness.

Reasoning:

The court found that: 

• a risk assessment in relation to the task of conducting changeovers and its location had not been completed by the transportation company.
  

• the risk of being struck by mobile plant or vehicular traffic on the road was known to the company as it had been previously raised by workers.
  

• the transport company failed to develop, implement, and enforce a site-specific safe system of work for the task of conducting changeovers at changeover locations in proximity to vehicular traffic.
  

• the company did not provide workers with any training on the hazard of working near mobile plant and vehicular traffic when conducting changeovers, or the control measures to be implemented to eliminate or minimise the risk of being struck by mobile plant or vehicular traffic.
  

• the transport company did not provide workers with adequate high visibility clothing and did not enforce the requirement for workers to wear adequate high visibility clothing at changeover locations.
  

Anyone not directly involved in the case would not be able to comment as to how and why the accident happened, other than point out an obvious omission: no hi-vis. Clause 46 of the WHS Regulation specifically requires the supply of Personal Protective Equipment where needed and this includes clothing to enhance visibility. If a person is provided with this clothing and chooses not to wear it - deliberately or through oversight, there is an onus on that person as per Clause 46 in addition to their general duty as a worker to take reasonable care of their own health and safety as per Section 28 of the WHS Act “Duty of Workers.” However…. 

In this case, the transport company was accused of not providing training on the hazards associated with these changeover practices but had not even assessed the risks in the first place and thus did not put anything together to train anyone on.

The maximum penalties for a Category 2 offence where a Director, CEO, or other officer a business is being charged is almost $400,000 as of 2024.

In the heat of the moment it may be “easy to forget” but at the same time it is just as “easy to fix” too. It starts with those at the top. Courtenell offers training to company directors, secretaries, and CEOs in WHS law. This training is for the people at the top that make the hard decisions. It’s easy to get some education on WHS law and become a better manager for it. That way people don’t get struck by oncoming trucks and killed. 

For any assistance in WHS matters, please call Stephen Georgulis or Kevin Gaskell on 02 9552 2066, or via email, Stephen.g@courtenell.com.au or kevin.g@courtenell.com.au

For more information on WHS training or WHS compliance services, or if you would like help to make your WHS management system even more robust, please feel free to contact us at train@courtenell.com.au or phone us on 02 9552 2066

20th June 2024

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