The South Australian Employment Tribunal (SAET) Full Bench has overturned a high-profile work health and safety conviction against a towing company, providing important legal clarity on how regulators must prove specific safety breaches. In the long-running matter of SafeWork SA v Dial A Tow Australia Pty Ltd, the PCBU had initially been found guilty of a Category 2 breach under the State Work Health and Safety Act 2012 (SA) and handed a $600,000 fine following the 2018 death of a worker. The worker was killed in the crush zone between a modified tow truck’s retracting tilt tray and the vehicle’s headboard.
The original prosecution by SafeWork SA centered on the allegation that the employer failed to install a specific control measure: an electronic pressure sensor designed to stop the tray from moving if a person entered the high-risk area.
On appeal, SAET Deputy President Judges Margaret Kelly and Tony Rossi, along with Auxiliary Deputy President Jodie Carrel, quashed the conviction and acquitted the company. The Full Bench ruled that while the employer should have done more to identify the risk, the regulator failed to prove beyond reasonable doubt that the suggested pressure-sensing device was a scientifically effective or reliable solution for this specific truck design.
In complex transport, logistics, and heavy machinery operations, business leaders frequently navigate overlapping safety duties with equipment manufacturers. Many organizations assume that if a specialized engineering firm designs, manufactures, and supplies a piece of plant, the purchasing business is entirely insulated from investigating potential design flaws. Conversely, a common misconception is that the regulator only needs to identify any hypothetical safety step after an incident to secure a criminal conviction.
This landmark appeal ruling refines both assumptions, clarifying the exact legal boundary between a business’s duty to investigate risks and the regulator’s burden to prove that a specific proposed solution is actually workable.
The Investigation Finding
- Foreseeable Hazard: The company’s deep industry experience meant it should have identified the visible mechanical crush zone.
- Design Conflict: Toolboxes were placed inside the tray layout, inviting workers into a blind spot during remote operations.
- Duty to Inquire: The business had an active obligation to seek qualified expert opinions to address the known operational risk.
The Appellate Rule
- Specific Charge Failure: Convictions cannot rest on hypothetical control measures that lack clear technical validation.
- Unproven Effectiveness: SafeWork SA failed to prove that a pressure sensor was reliable or standard for this truck type.
- Acquittal Sustained: The prosecution did not provide engineering data on stopping speeds, making the charge non-defensible.
Industry expertise and the duty to investigate
The fatal incident occurred on a tilt tray designed and modified by a specialized engineering firm, which had placed toolboxes in a layout that required workers to step into the high-risk crush zone. The employer argued that it was entitled to rely completely on the expertise of the manufacturer and that it was not legally required to take every possible safety step imaginable.
The SAET Full Bench partly rejected this view, delivering a strong reminder to experienced industry operators. The judges found that given the company’s extensive industry tenure, it knew or should have known that the modified truck featured a hazardous crush zone. A clear, foreseeable risk was that one worker could operate the tilt tray via remote control without realizing a colleague had stepped into the blind spot to access the toolboxes.
The court established that the business had an obligation to seek qualified expert advice to address these visible design concerns, rather than passively relying on the manufacturer’s silence.
The burden of proving effective controls
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Despite finding that the employer should have investigated the risk, the Full Bench determined these failings were insufficient for a finding of guilt on the specific charge laid. To secure a conviction under Section 19, the prosecution must prove that a proposed control measure was reasonably practicable and effective at the time of the omission.
The court highlighted several critical gaps in the prosecution’s technical evidence:
- No Manufacturer Endorsement: The specialized designer and manufacturer had never recommended or utilized a pressure-sensitive device on this model, even during subsequent safety modifications.
- Absence of Expert Validation: No engineering expert or manufacturer provided evidence that a pressure sensor would be a reliable or effective way to detect a human body and prevent injury in this specific environment.
- Missing Technical Data: The prosecution provided no data showing how quickly the mechanical tray would actually come to a stop once a sensor detected an object, leaving it unproven whether the device would have prevented the fatal trauma.
Navigating shared plant responsibilities
| Compliance Dimension | Legacy Administrative Assumption | Post-Appeal Judicial Standard |
| Risk Identification | Total reliance on a specialized manufacturer’s design satisfies the business’s duty. | Experienced operators must independently identify obvious physical hazards and seek expert views. |
| Control Practicability | Any hypothetical safety device identified post-incident can be used to establish a breach. | The regulator must prove the specified control was effective, reliable, and technically viable. |
| Expert Engineering | Modifying equipment without reviewing the human-factors layout of the workspace. | Structural risks, such as toolboxes placed inside crush zones, require formal hazard reviews. |
This judgment provides general guidance for safety practitioners managing heavy plant and shared manufacturer relationships. While the ruling confirms that prosecutors must meet a high standard of technical proof regarding specific control measures, it underscores that long-term industry experience creates a higher expectation to spot obvious mechanical hazards.
Organizations should regularly review their heavy assets, ensure that high-risk zones are subject to formal hazard assessments, and seek qualified engineering opinions when commercial modifications introduce visible physical risks to the workforce.
Source material & reference context
- Case Reference: Dial A Tow Australia Pty Ltd v SafeWork SA.
- Statutory Intersect: Work Health and Safety Act 2012 (SA), Section 18 (Scope of reasonably practicable controls) and Section 19 (Primary duty of care).
