Waste company Cleanaway faces maximum $12 million fine after guilty verdict for SE Freeway smash

Almost seven years after the horror South Eastern Freeway smash, a waste company has been found guilty of workplace safety breaches – and faces a possible $12m fine.

The Cleanaway truck at the bottom of the South East Freeway following the crash in 2014. Picture: Roger Wyman.

A waste company inadequately trained a driver before giving him control of a 8000L truck, resulting in one of the worst road crashes in SA history, a court has ruled.

On Monday, almost seven years after the horror 2014 South Eastern Freeway smash that killed two people, Cleanaway was found guilty of eight workplace safety offences.

The company now faces one of the highest maximum penalties ever handed down by an SA court – a $12 million fine – and has already flagged an appeal against the decision.

The highest penalty imposed, to date, upon a company following a Federal prosecution is $650,000 – also against Cleanaway, over a still explosion at Wingfield in 2017.

In his written judgment, Magistrate Simon Smart found Cleanaway could have assess driver Darren Michael Hicks’ competence before the crash, but failed to do so.

He said there was “clear evidence” the company could have, but did not, prevent him from driving the vehicle until he was assessed as qualified to and capable of doing so.

“By failing to take that step, Cleanaway failed to minimise the risk (which) could be fairly described as ‘extreme’,” he said.

“(In its own documents), the company specifically acknowledged that the risk, although unlikely, was considered to have ‘major’ consequences.

“It failed to minimise the possibility of death or serious injury as a result of a vehicular collision.”

Jacqui Byrne.

Tom Spiess.

On August 18, 2014, a Cleanaway truck slammed into cars at the bottom of the freeway, at 151km/h, while new employee Darren Michael Hicks was behind the wheel.

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.

At that time, Cleanaway successfully argued it had no knowledge the brakes were faulty – because it outsourced maintenance to another company, Adelaide Heavy Diesel.

That evidence asserted Cleanaway did not know the truck’s brakes were faulty because its maintenance company, Adelaide Heavy Diesel, had not made it aware of the problem.

Despite those claims, Comcare – the Federal agency overseeing workplace safety – pressed on with a case of its own.

It accused Cleanaway of eight workplace standards breaches that, they alleged, related directly to the crash.

Darren Michael Hicks. Picture: AAP/David Mariuz.

In December 2018, the death by dangerous driving case against Mr Hicks was dropped when he flagged his intent to give evidence in the Federal case against Cleanaway.

Adelaide Heavy Diesel, meanwhile, filed court papers asserting it warned Cleanaway about the truck’s defects 25 days before the fatal crash.

The company asserted it had recommended, to Cleanaway, the truck should “not be driven” until the brakes were serviced.

In December 2019, Mr Hicks – who had been granted immunity from further prosecution – took the stand against Cleanaway.

He told the court he had never driven a manual truck before the day of the crash and had been trained, by Cleanaway, in vehicles with automatic transmission.

Mr Hicks said he was also not advised as to how to safely travel down the Freeway and maintain an appropriate speed using the vehicle’s gears and exhaust brakes.

He said that, when the truck picked up speed, he was “standing” on the brakes to try and slow it down – with no success.

In his judgment on Monday, Mr Smart said he was satisfied beyond reasonable doubt that Cleanaway was aware of the risks posed by unqualified drivers.

He was also satisfied it was aware of the risks posed by the South East Freeway, that it knew how to minimise those risks and had the capability to do so.

“The cost (of minimising the risks) was not grossly disproportionate to the magnitude of the risks,” he said.

“There was a genuine possibility of risk – as evidenced by the incident itself – and the danger of harm that might have resulted was extreme.”

He dismissed Cleanaway’s challenges to the wording of Federal law, saying their interpretation was “not only not available, but illogical”.

A spokesman for Comcare said the department would not comment on the court’s decision while a possible appeal was on foot.

Cleanaway has 21 days to file its appeal.