‘Reasonably practicable’ in the context of an Australian workplace fatality prosecution

What’s reasonably practicable?

Some extracts from a legal appeal concerning a workplace fatality prosecution, with a focus on the interpretation of ‘reasonably practicable’.

The prosecution related to a tow truck tilt tray which had been modified so that the headboard no longer tilted with the tray, but remained in place.

Some toolboxes were then placed on each side of the headboard. An operator was crushed between the tray and headboard.

The appeal notes:

· “This difference in design had an advantage in that it facilitated tow truck

· deliveries to areas with limited overhead space … [but also] carried a significant disadvantage”

· By leaving a space, a crush zone was now created – and by fitting toolboxes, they created a reason for people to be in that area

· Signs were placed within the crush zone warning of danger

· An expert engineer opined that “warning signage was an insufficient safety control, and that engineering controls were needed to detect anyone in the crush zone as the tray was returned”

· “He considered that such a device would require ‘virtually zero ongoing maintenance’ but recommended that a daily inspection be done”, and would have been a relatively low cost of 2.5 – 5k (low given the overall cost of the truck design)

· Another expert engineer “agreed that a pressure sensitive device would diminish the crush risk but was concerned that it needed to be a failsafe device if it was to be relied upon”, and that this should be the tilt tray designer and not the user

· The designer/installer of the modified tilt tray created a risk assessment and “identified the hazard of a person becoming trapped between the tray and the truck chassis during operation. It identified the consequence as a fatality”, and was rated as unlikely, with an overall medium risk

· The recommend measures were procedures, signage and guarding

· The user’s risk assessment (who’s worker was killed) didn’t identify crush risk in their risk assessment, but amended their risk assessment after the fatality but “required only training and instructions as a remedy. It did not require an engineering control

· This tilt tray was a new design and “invited workers into the crush zone, and which then placed workers with their back to the tray when it was being returned”

· The user did not discharge their legal duties and “ought reasonably to have known about engineering ways of eliminating or minimising the risk, by engaging suitably qualified and experienced personnel to provide advice and assistance”

· Even if the pressure sensitive device had to be checked daily, tow trucks have multiple daily checks and “…one more daily test would not be onerous or impracticable”

· “The question relates not to what is reasonably practicable as an abstract proposition but what is reasonably practicable for the employer within the relevant industry”

· “What was done after the event may nonetheless shed light on what was, or should have been, reasonably practicable”

· This isn’t to suggest that PCBUs owe all the duties, like with contractors, since more onerous principle contractor duties “would be likely to prompt aggressive responses from the contractors”

· Rather, the “criteria of reason suggest that it would be more practicable for the householders to rely on the contractors to ensure safety”

· And “To hold otherwise would demonstrate an extreme harshness in the legislation. Very often those who engage independent contractors know much less about safety than the independent contractors do”

· “the words “state of knowledge about … the risk … and means of removing or mitigating the risk …” encompass not only what is known concerning those matters, but also who might ordinarily be expected to have that knowledge”

· “it does not ask in the abstract whether a pressure sensitive device was reasonably practicable. The focus is on what was reasonably practicable for [the user]”

DIAL A TOW AUSTRALIA PTY LTD v CAMPBELL [2024] SASCA 151