In early 2022, Adelaide based towing company Dial A Tow Australia Pty Ltd (Dial A Tow) was found guilty by the South Australian Employment Tribunal of breaches of South Australia’s Work Health and Safety Act 2012 (SA) that led to the 2018 death of an employee in the “crush zone” between a modified tow truck’s retracting tilt tray and the vehicle’s headboard.

The manufacturer of the tilt tray, AHRNS Handling Equipment Pty Ltd (AHRNS), was also charged following the SafeWork SA investigation into the death of the worker, and pleaded guilty following the withdrawal of some of the particulars of the alleged contraventions.

Dial A Tow pleaded not guilty and has persisted to have the original finding overturned. Last month a South Australian Employment Tribunal full bench found the failings of Dial A Tow were “insufficient for a finding of guilt to the specific charge laid“.

The tilt tray was designed, manufactured and supplied by AHRNS, and featured toolboxes that “invited” workers into the high-risk area. One of SafeWork SA’s main allegations against Dial A Tow was that it failed to ensure the crush zone was fitted with a pressure sensor that prevented the tilt tray from moving if any person or object was within the zone.

In September 2022, Dial A Tow was handed a then record penalty for a South Australian work health and safety case of $600,000, while AHRNS was fined $350,000.

Dial A Tow appealed against its conviction. Its appeal was initially dismissed in mid-2023, but subsequently upheld by a Court of Appeal majority, which found the previous ruling against Dial A Tow didn’t provide adequate reasons, and remitted the matter to a South Australian Employment Tribunal full bench.

Before the full bench, Dial A Tow argued that a defendant in a work health and safety prosecution was not required to take every possible step that could be taken, and that the identification of a step that might have had a positive impact on safety did not, without more, demonstrate a breach of the relevant duty.

Dial A Tow also argued that SafeWork SA’s specified control measure – installing a pressure sensor – fell within the province of AHRNS as the specialised designer and manufacturer of the tilt tray. Further, it contended there was no evidence that a pressure sensor would have been identified as a suitable control had it sought further expert advice on the tilt tray’s unique crush zone. The full bench heard that after the fatality, AHRNS made SafeWork SA-approved alterations to the tilt tray’s design that did not involve a pressure-sensing system.

The full bench went on to determine whether Dial A Tow had ensured, so far as was reasonably practicable, the health and safety of the deceased worker and others by relying on the expertise of AHRNS in the design, manufacture, supply and installation of the tray. They found that given Dial A Tow had extensive industry experience, it knew or should have known that its AHRNS-modified tow truck featured crush zones that created the risk of serious injury and death.

One obvious risk, which was illustrated by the fatal incident, was that one person could operate the tilt tray from its remote control without realising that another person was in the crush zone to, for instance, access the toolboxes, the full bench found. “[Dial A Tow] should have sought suitably qualified expert opinion as to a means by which those concerns could be addressed in order to comply with its legal obligation to eliminate or minimise the risk of injury presented, which included fatal injury,” they said.

However, the full bench concluded these findings weren’t sufficient for a guilty verdict, before ruling that SafeWork SA failed to prove beyond reasonable doubt that Dial A Tow would have been advised to install a pressure sensor had it sought an expert opinion. “The evidence has persuaded us to find AHRNS was suitably qualified to design, manufacture, supply, and install, further modifications to the tow truck and tray involved in the incident and at no time did it recommend the installation of a pressure-sensitive device,” they said. “No designer or manufacturer gave evidence that the installation of a pressure-sensitive device in a modified tow truck of the type involved in the incident would be an effective and reliable means of detecting someone in the crush zones and preventing injury.”

“There was no evidence of how quickly the tray would come to a stop once the body is detected. There was no expert evidence of how quickly the tray, in those circumstances, would need to come to a halt, to prevent injury to a person in the crush zone.“

The full bench set aside Dial A Tow’s conviction and acquitted the company.

While it was a lengthy fight, Dial A Tow has succeeded in setting aside the conviction and penalty. The intricacies of work health and safety investigations and prosecutions can be complex, and expert, knowledgeable, advice and representations from the very outset can assist in reducing the risk of prosecution or further action by a regulator if and when an incident does occur.

This article was written by Chris Morey, Special Counsel, and reviewed by Clare Raimondo, Partner.