Supreme Court overturns six out of eight charges against Cleanaway over South Eastern Freeway crash

The company behind a truck which crashed at the bottom of the South Eastern Freeway, killing two people, has had a legal win after six of their eight safety convictions were overturned.

A landmark prosecution against the owners of a truck which crashed at the bottom of the South Eastern Freeway, killing two people, has largely been overturned by the Supreme Court.

The decision means the company has gone from facing a maximum fine of $12m to $3m.

Cleanaway was convicted after a trial in the Adelaide Magistrates Court of eight counts of breaching work health and safety protocols over the August, 2014 crash.

On appeal to the Supreme Court, Garry Livermore QC, for Cleanaway, put forward multiple grounds of appeal including that trial magistrate Simon Smart gave too much weight to expert evidence.

In his judgment handed down on Thursday, Chief Justice Chris Kourakis rejected all the grounds of appeal initially filed by Cleanaway.

However, he said that an issue which arose during the appeal hearing would lead him to dismiss six of the eight charges against the company.

Chief Justice Kourakis said the charges were too similar to each other to be able to be distinguished at law.

He said that breach of the work health and safety act was the general failure “to eliminate or minimise the risk” of danger to employees, rather than charging individual opportunities which were then missed.

The crash invoving trucks and cars at the bottom of the South Eastern freeway which left two people dead. Picture: Roger Wyman

Darren Michael Hicks who was behind the wheel of the Cleanaway truck which crashed at the bottom of the South Eastern Freeway in 2014. Criminal charges against him for his role in the crash were dropped.

The scene of the fatal accident at the base of the South Eastern freeway in 2014, Picture: Tait Schmaal.

“There is not a separate offence for each reasonably practicable measure which might have in some degree, eliminated or minimised that risk,” he held.

“It must be remembered that reasonable precautionary measures to safeguard against a risk may overlap and that some secondary safeguards are put in place lest the primary precaution

fails.”

The ruling left Cleanaway still facing two primary charges – one of failing to protect their workers and another of failing to protect other people out of the company.

The maximum fine for each charge is $1.5m for a company.

The charges were centred around a failure to provide a safe system of work by allowing new driver Darren Michael Hicks to get behind the wheel of the truck without proper training.

Hallett Cove man Tom Spiess, who was killed in a horrific runaway truck smash on the South Eastern Freeway at the Glen Osmond/Cross Rd intersection . Picture: Supplied by family.

Jacqui Byrne was killed in the truck crash at the bottom of the South Eastern Freeway in 2014.

On August 18, 2014, a Cleanaway truck driven by Mr Hicks slammed into cars at the bottom of the freeway, at 151km/h.

Jacqui Byrne, 41, and Tom Spiess, 56, were killed, Mr Hicks’ right leg was almost severed and Louise Compton suffered spine, head, brain, lung, torso and psychiatric injuries.

Both Mr Hicks and Cleanaway were charged with criminal offences but, in August 2017, the case against the company was dropped following the tendering of expert evidence.

Comcare, the federal workplace safety watchdog, pressed on with a prosecution, taking Cleanaway to trial in the Adelaide Magistrates Court.

The sentencing of the company has been adjourned while the appeal was pending.