Appeal against a conviction under ss 19 and 32 of the Work Health and Safety Act 2012 upon remitter by the Court of Appeal - the Trial Deputy President Magistrate found a charge of a contravention of both s 19 and s 32 of the Work Health and Safety Act 2012 proven - this appeal upon remitter is by way of review and has concerned primarily whether the installation of a pressure-sensitive device or devices was a reasonably practicable measure for the appellant to have implemented in order to minimise the risk of a crushing injury between the headboard of a tow truck and a retracting tray to its resting position - HELD - errors were made by the Trial Deputy President Magistrate requiring a review of the evidence by the Full Bench - HELD - the warning signs provided by the designer and manufacturer of the tilt tray mechanism, AHRNS, were insufficient for the appellant, given its knowledge and experience in working with tow trucks, to discharge its obligation in accordance with s 19(1) of the Work Health and Safety Act 2014 to ensure, insofar as is reasonably practicable, the health and safety of its employees - HELD - the relevance of the recommendations of the third party subcontractor AHRNS was to be considered in context including it having provided the tilt mechanism without an engineering solution to an identified crush hazard and the specific measure of the introduction of a pressure-sensitive device which the respondent accepted upon appeal was the sole basis of the finding of guilty by the Deputy President Magistrate - HELD - the evidence gave rise to a reasonable doubt as to whether, had the appellant sought the opinion of an independent safety expert, the installation of a pressure-sensitive device or a series of pressure-sensitive devices would have been recommended - HELD - the finding of guilt is to be set aside and to be substituted with a verdict of acquittal.

Appeal from a decision of Deputy President Magistrate Cole [2022] SAET 36 and upon remittal by the Court of Appeal [2024] SASCA 151

Campbell v Dial A Tow Australia Pty Ltd [2022] SAET 36

Dial A Tow Australia Pty Ltd v Campbell [2024] SASCA 151

Campbell v Dial A Tow Australia Pty Ltd (ACN 084 260 775) and AHRNS Handling Equipment Pty Ltd (ACN 052 455 339) [2022] SAET 124

Dial A Tow Australia Pty Ltd v Campell [2023] SAET 49

Chugg v Pacific Dunlop Ltd [1990] HCA 41; (1990) 170 CLR 249

Kirk v Industrial Court (NSW) [2010] HCA 1; (2010) 239 CLR 531

Baiada Poultry Pty Ltd v The Queen [2012] HCA 14; (2012) 246 CLR 92

CSR Ltd v Stevenson (1995) 184 LSJS 204

Softwood Holdings v Stevenson (1996) 188 LSJS 482

Dinko Tuna Farmers Pty Ltd v Markos [2007] SASC 166

Reilly v Devcon [2008] WASCA 84; (2008) 36 WAR 492

Chief Executive, Attorney-General's Department (Department of Treasury and Finance) v South Australian Salaried Medical Officers Association [2025] SAET 16

Chief Executive, Attorney-General's Department v South Australian Salaried Medical Officers Association [2025] SAET 102

Lee v Lee [2019] HCA 28; (2019) 266 CLR 129

Fox v Percy [2003] HCA 22; (2003) 214 CLR 118

Robinson Helicopter Co Inc v McDermott (2016) 90 ALJR 679; 331 ALR 550; [2016] HCA 22

Kakavas v Crown Melbourne Ltd (2013) 250 CLR 392; [2013] HCA 25

Thorne v Kennedy (2017) 263 CLR 85; [2017] HCA 49

Warren v Coombes (1979) 142 CLR 531; [1979] HCA 9

Coulton v Holcombe (1986) 162 CLR 1; [1986] HCA 33

University of Wollongong v Metwally (No2) [1985] HCA 28; (1985) 59 ALJR 481

Makita (Australia) Pty Ltd v Sprowles [2001] NSWCA 305; (2001) 52 NSWLR 705

Dasreef Pty Ltd v Hawchar [2011] HCA 21

R v Hillier [2007] HCA 13; (2007) 228 CLR 618

Chamberlin v R (No2) [1984] HCA 7; (1984) 153 CLR 521

Wood v R [2012] NSWCCA 21

MFA v R [2002] HCA 53; (2002) 213 CLR 606

MWJ v R (2005) 222 ALR 436; [2005] HCA 74

R v Birks (1990) 19 NSWLR 677

R v Manunta [1989] SASC 1628; (1989) 54 SASR 17

1. The appellant Dial A Tow Australia Pty Ltd (DAT) provides tow truck services as a business in South Australia. On 14 March 2018 one of its employees, Mr Lee Ravlich, was crushed as the tray to a tow truck was returning to its resting position abutting the headboard and attached toolboxes (the incident). Mr Ravlich died from the injuries sustained.
2. DAT was charged with a contravention of s 19(1)(a) and s 32 of the Work Health and Safety Act 2012 (SA) (the WHS Act). Sub-section 19(1)(a) requires a person conducting a business or undertaking to ensure, so far as is reasonably practicable, the health and safety of workers engaged, or caused to be engaged, by the person while the workers are at work in the business or undertaking. Section 32 relates to the penalties that may be imposed upon a conviction.
3. On 24 March 2022 Cole DPM found DAT guilty of one count of breaching s 19 and s 32 of the WHS Act. His Honour found DAT had failed to ensure the health and safety at work of Mr Ravlich.[1]
4. The matter comes before this Full Bench of the Tribunal upon remitter by the Court of Appeal for the reasons given in Dial A Tow Australia Pty Ltd v Campbell.[2] The direction of the Court of Appeal is that the remitter be for hearing and determination by the Full Bench in accordance with its reasons.[3]
5. An appeal to a Full Bench is conducted in accordance with s 67 of the South Australian Employment Tribunal Act 2014 (SA) (the SAET Act). It provides, relevantly:

(3) An appeal under this section will be by way of rehearing.

(4) The Full Bench conducting the appeal may draw inferences of fact from evidence or other material before the Tribunal and may, as it thinks fit, allow further evidence or material to be presented to it.

(5) The Full Bench conducting the appeal may -

(a) affirm the decision appealed against; or

(b) vary the decision appealed against; or

(c) set aside the decision appealed against and, if it thinks fit, return the matter to the Tribunal for reconsideration in accordance with any directions that the Full Bench considers appropriate.

1. Unlike the appeal to a Full Bench, the consideration of the Court of Appeal was limited to a question of law.[4] The essential factual background for its consideration was set out by the majority, is not in dispute, and it is convenient to set it out here:

Background

1. DAT operates a tow truck business providing roadside, trade, accident, and general towing services. In providing those services it leases tilt tray tow trucks.
2. The truck the subject of this appeal differed from traditional tilt tray tow trucks and trucks otherwise leased by DAT. It was manufactured by AHRNS Handling Equipment Ltd (AHRNS) in November of 2016. At the time of Mr Ravlich's death, it had been leased by the applicant for approximately six weeks.
3. The distinctive feature of the truck pertained to the position of its tilt tray relative to its vertical headboard. Most tilt tray tow trucks have a vertical headboard fixed to the end of the tilt tray, adjacent to the truck's cabin. Toolboxes are fixed to the tray behind the headboard. When the tilt tray is moved, the headboard and toolboxes move with the tray as a single unit.
4. The truck the subject of the charge featured a different design. The vertical headboard was not fixed to the tilt tray. It was fixed behind the cabin of the truck. The toolboxes were then attached to each side of the headboard, facing towards the tray. This allowed the tilt tray to move away from the fixed headboard and toolboxes, leaving the toolboxes in place.
5. This difference in design had an advantage in that it facilitated tow truck deliveries to areas with limited overhead space. Mobility of the tilt tray independently from the truck's other apparatus ameliorated the risk of the headboard striking something overhead and enabled the tilt tray to reach a height sufficient for loading or unloading its carriage.
6. The design also carried a significant disadvantage. This was that tilting the tray necessarily created space between the tray and the headboard, from where the toolbox was accessible. At any time while the tray was returning to its position adjacent to the truck's cabin, that space constituted a crush zone.
7. At the time of Mr Ravlich's death, this design was relatively new. Four signs were placed within the crush zone. Those signs warned of danger, a crush zone, a direction to keep clear, and a direction to keep clear while the engine runs.
8. On 14 March 2018, another employee of DAT was operating the truck with Mr Ravlich to deliver a van to premises in Dry Creek. DAT had employed Mr Ravlich for eight days. Mr Ravlich was undergoing training. After the workers had unloaded the van from the tilt tray, it was necessary to retract the tray. The other employee took responsibility for this. This employee was standing away from, but near to, the truck. He held a remote control that moved the tray. Mr Ravlich was returning tools to the toolbox on the passenger side of the truck. He had to enter the crush zone to do so.
9. Mr Ravlich went behind the other employee and out of his sight. The employee used the remote control to angle the tilt tray downwards and horizontally towards the truck's cabin. He was watching the truck. He was unaware that Mr Ravlich was in the crush zone. Mr Ravlich was crushed between the moving tilt tray and the headboard.[5]

1. In the appeal to this Full Bench there was a focus upon other facts and findings related to the charge. They will be addressed in some detail later in these reasons.

The statutory provisions relating to the prosecution

1. Section 19 of the WHS Act sets out the primary duty of care that is owed by a person conducting a business or undertaking to workers engaged. Sub-section 19(1)(a) provides, relevantly:

(1) A person conducting a business or undertaking must ensure, so far as is reasonably practicable, the health and safety of -

(a) workers engaged, or caused to be engaged by the person;

while the workers are at work in the business or undertaking.

1. Section 18 defines what is meant by "reasonably practicable" in relation to a duty to ensure health and safety. It provides:

18 - What is reasonably practicable in ensuring health and safety

reasonably practicable, in relation to a duty to ensure health and safety, means that which is, or was at a particular time, reasonably able to be done in relation to ensuring health and safety, taking into account and weighing up all relevant matters including -

(a) the likelihood of the hazard or the risk concerned occurring; and

(b) the degree of harm that might result from the hazard or the risk; and

(c) what the person concerned knows, or ought reasonably to know, about -

(ii) ways of eliminating or minimising the risk; and

(d) the availability and suitability of ways to eliminate or minimise the risk; and

(e) after assessing the extent of the risk and the available ways of eliminating or minimising the risk, the cost associated with available ways of eliminating or minimising the risk, including whether the cost is grossly disproportionate to the risk.

1. Section 17 addresses the content of a duty imposed on a person to ensure health and safety. It provides:

(1) A duty imposed on a person to ensure health and safety requires the person -

(a) to eliminate risks to health and safety, so far as is reasonably practicable; and

(b) if it is not reasonably practicable to eliminate risks to health and safety, to minimise those risks so far as is reasonably practicable.

(2) A person must comply with subsection (1) to the extent to which the person has the capacity to influence and control the matter or would have that capacity but for an agreement or arrangement purporting to limit or remove that capacity.

1. Division 5 of the WHS Act addresses offences and penalties. Section 32 of the WHS Act is within Division 5 and creates an offence where there is a failure to comply with a health and safety duty. It provides:

32 - Failure to comply with health and safety duty - Category 2

(b) the person has a health and safety duty; and

(c) the person fails to comply with that duty; and

(d) the failure exposes an individual to a risk of death or serious injury or illness.

(a) in the case of an offence committed by an individual (other than as a person conducting a business or undertaking or as an officer of a person conducting a business or undertaking) - $150 000;

(b) in the case of an offence committed by an individual as a person conducting a business or undertaking or as an officer of a person conducting a business or undertaking - $300 000;

(c) in the case of an offence committed by a body corporate - $1 500 000.

1. In laying the Information and Summons against DAT, for contravention of ss 19 and 32 of the WHS Act, the informant and respondent to the appeal, Martyn Campbell as nominated officer of SafeWork SA (the informant), set out the following particulars of the charge:

1.6 The defendant failed to ensure so far as was reasonably practicable the health and safety of the worker in that it failed to take one or more of the following reasonably practicable measures to eliminate (or alternatively minimise if not reasonably practicable to eliminate) the risks to the health and safety of the worker:

1. adopting an engineering measure that stopped the tray top from moving once it reached the proximity of the headboard and required the operator to return the tray top to its resting position manually in a position adjacent to the crush zone; or
2. adopting an engineering measure incorporating pressure sensors on the inside edges of the crush zone that would operate to stop the movement of the tray top if there was a person or other hazard within the crush zone.
3. ... ;
4. removing the storage areas from the crush zone and installing them at a location that did not pose a risk to workers.[6]

1. Following a plea of not guilty to the charge laid, a trial commenced before Cole DPM on 20 July 2021. It continued over three days concluding on 10 December 2021. Reasons for judgment were published on 24 March 2022. Cole DPM found the charge, in respect of particular 1.6.b. proven beyond reasonable doubt. As observed by the Court of Appeal, his Honour's reasons were relatively brief. He found, relevantly:

In my view, the installation of a pressure sensitive device is a reasonably practicable measure that could and should have been implemented. The cost of a retrofit installation is not grossly disproportionate to the risk, as provided by s 18 of the WHS Act.[7]

1. After the incident, a Prohibition Notice was issued by the informant and served upon DAT.[8] It required revised control measures to eliminate or minimise the risk of workers becoming trapped to be implemented before the tow truck could be used again. In his reasons, Cole DPM set out the steps that were then undertaken by DAT. He stated:

The tow truck was returned to AHRNS who trialled various modifications over several months. Modifications were not approved by SafeWork SA for the purpose of the Prohibition Notice being removed until such time as a modification was installed which allowed the tilt tray to be returned to its resting position by use of the remote control only until the leading edge was about 60cm from the headboard. At that point, the operator was required to stand at the side of the truck near the headboard and to return the tray by using one hand to press a button switch affixed to the side of the tow truck, and using the other hand to operate either the remote control or another button switch which was placed nearby also on the side of the tow truck. That measure did not require the operator to enter the crush zone, but rather to stand next to and outside the crush zone. A video was tendered showing the modification in operation.[9] (footnotes omitted)

1. Cole DPM addressed expert evidence that had been presented by the parties. The informant relied upon evidence of Mr Peter Kroon, a safety engineer. He noted that at the time of the incident warning signage had been erected which warned of the risk posed by a crush zone. His opinion was that the signage was insufficient and that engineering controls were needed to detect anyone in the crush zone as the tray was returned.[10]
2. Cole DPM understood the effect of Mr Kroon's evidence to be that what was required was a pressure sensitive device to be placed either across the back of the headboard, down the leading edge of the tray, down the side of the adjacent step or a combination thereof. Although Mr Kroon referred to almost no maintenance being required, he recommended that a daily inspection involving testing of the operation of the pressure sensitive device be done. Mr Kroon briefly referred to how generally a pressure sensitive device would operate. He stated that if a person were in the crush zone and came into contact with the rubbers of the device then the tilt tray would stop moving.[11]
3. Mr Kroon gave evidence as to the costs associated with the supply and installation of a pressure sensitive device. He provided a quotation of $2,576 for the cost of manufacture and estimated a cost of a couple of thousand dollars for a retrofit. He did not say if that related to installation to the headboard, down the leading edge of the tray, down the side of the adjacent step, or a combination thereof.
4. Mr Kroon expressed the opinion that if DAT were not in a position to undertake the works itself then, upon identification of the risk of injury, it should have engaged someone else to have done it.
5. Cole DPM referred to the evidence of Mr John Hickey, a health and safety engineer who gave evidence as part of the case for DAT. Mr Hickey accepted that a pressure sensitive device was readily available and that its operation could be checked daily. He also agreed that a pressure sensitive device would diminish the crush risk where the incident occurred but that other crush risk areas would remain. He also expressed concern that if it were to be relied upon then it needed to be a fail safe device. He disagreed with Mr Kroon as to the party, at least ordinarily, having the responsibility to have identified the risk and to have addressed it. He expressed the opinion that it was the responsibility of the designer and manufacturer of the tow truck to identify and install a pressure sensitive device, if that were to be the appropriate measure, not the end user. However, Mr Hickey also accepted that the manufacturer may not be aware of all aspects of how an end user may use a product as manufactured and that it was necessary for the end user to do its own risk assessment. He also accepted that, if necessary, the end user should obtain expert advice and expert assistance.
6. Cole DPM addressed the measures undertaken by AHRNS prior to the incident. He noted that AHRNS, in a risk assessment for the tilt tray, identified the hazard of a person becoming trapped between the tray and the truck chassis during operation. That included the possibility of a fatality but it assessed the likelihood of that occurring to be highly unlikely and that the overall risk was medium. It recommended a safe work procedure, warning signs and guarding the area together with an emergency stop to halt the movement of the tray. In these circumstances Cole DPM found that DAT knew there was a risk of injury and found its reliance upon signage and instructions provided was insufficient to discharge its legal duty. He found that DAT ought reasonably to have known that engineering solutions were available to either eliminate or minimise the risk and that suitably qualified personnel should have been retained to provide advice and assistance. Upon finding the installation of a pressure sensitive device was a reasonably practicable measure that could and should have been implemented, he found the charge proved beyond a reasonable doubt.

1. Whilst DAT appealed the finding of guilt to a Full Bench, the matter proceeded with submissions as to the sentence to be imposed. At the time, a Deputy President of the Tribunal, who was a magistrate, could not impose a monetary penalty in excess of $300,000.[12] As DAT is a body corporate and the maximum penalty that could have been imposed pursuant to s 32 of the WHS Act was $1,500,000, Rossi DPJ presided over the sentencing process. For the reasons given in Campbell v Dial A Tow Australia Pty Ltd (ACN 084 260 775) and AHRNS Handling Equipment Pty Ltd (ACN 052 455 339)[13] a monetary penalty of $600,000 was imposed.[14]
2. There was no appeal from the amount of the penalty imposed.

1. The notice of appeal from the conviction order of Cole DPM advanced three grounds:

Ground 1: The learned magistrate erred in law and in fact in concluding that it was established beyond a reasonable doubt by the evidence that the measure at 1.6(b) of the summons was a reasonably practicable measure, within the meaning of s 18 of the Work Health and Safety Act 2012 (SA), that the Appellant could and should have implemented.

Ground 2: The learned magistrate erred in law and in fact in concluding that it was established by evidence beyond a reasonable doubt that the Appellant had contravened s 19(1) of the Work Health and Safety Act 2012 (SA), by not implementing an engineering design feature identified at 1.6(b) of the summons.

Ground 3: The learned magistrate erred in law by failing to give adequate reasons for his decision.

1. Eleven particulars were advanced in support of the three grounds of appeal. They provided:

Particulars to Grounds 1, 2 and 3

1. The evidence was insufficient to discharge the prosecution's burden of proof.
2. The plant was designed and manufactured by expert contractors and it was not proved that the Appellant did not reasonably rely on them.
3. There was no or insufficient evidence led by the prosecution as to the terms of the contract between the manufacturer (Ahrns) and the Appellant.
4. There was no or insufficient evidence led by the prosecution as to communications between the manufacturer (Ahrns) and the Appellant regarding crushing risk.
5. The manufacturer (Ahrns) communicated to the Appellant, by its risk assessment that it was aware of and had considered the crushing risk.
6. According to the unrejected expert evidence led by the Appellant, if modifications were to be considered, the appropriate expert to modify the design was the manufacturer/designer (Ahrns).
7. There was no finding and no or insufficient evidence to establish beyond a reasonable doubt or at all that the measure identified at 1.6 of the summons would have been identified or recommended to the Appellant by the manufacturer) or another expert contacted by the Appellant). In the absence of such advice it could not have been reasonably practicable for the Appellant to design or install that modification.
8. Even after the incident the subject of the charge, the expert designer/manufacturer (Ahrns) did not come up with a satisfactory solution for a period of nine months and did not recommend the measure identified at 1.6 of the summons.
9. The evidence led by the prosecution as to the cost of retrofitting the design measure was insufficient to prove the charge to the requisite standard.
10. The learned magistrate failed to undertake an analysis of the risks and costs involved in a system identified which may require checking every time before retrieval of a vehicle.
11. The Appellant may provide further particulars prior to the hearing of the appeal.

1. The finding of guilt by Cole DPM was upheld by a majority of the first Full Bench.[15] Calligeros DPJ agreed with Cole DPM that the modified tow truck created a new risk associated with the crush zone which DAT should have identified.[16] He also agreed that DAT either knew or ought to have known of the existence of the crush zone and that it failed to engage others to find and implement safety controls to manage that risk. An element of the argument of DAT before the first Full Bench was that AHRNS had made four unsuccessful attempts to devise an engineering measure to convince SafeWork SA to lift the Prohibition Notice and that at no time had it suggested that an appropriate safety measure was the use of a pressure sensitive device. DAT submitted that was relevant to a consideration of whether it was reasonably practicable for DAT to have installed a pressure sensitive device. His Honour held those matters did not preclude the findings made by Cole DPM. He explained:

Any measure proposed not only had to minimise the crushing risk, it had to be suitable to DAT from an operational viewpoint. For that reason, the failed attempts to lift the Prohibition Notice, and the exchanges between DAT, [AHRNS] and SafeWork SA in that regard, are not probative of whether a pressure sensitive device is a suitable engineering measure to use. Other factors were in play between the three parties. There may have been multiple reasons why AHRNS did not suggest some measures, and DAT and SafeWork SA did not accept other measures.[17]

1. In addressing the response of DAT to the risk posed by the crushing zone, Calligeros DPJ had regard to the following:
   1. The tow truck had been inspected and approved for road worthiness in November 2016 but had not been used by DAT until early 2018. The reason for the delay had not been explained.[18]
   2. The impracticability of the pressure sensitive device, raised by DAT, was not put to Mr Kroon in cross-examination in circumstances where Mr Hickey's evidence did not suggest that there was an applicable industry standard.[19]
   3. The evidence indicated that neither DAT nor Mr Kroon had previously encountered the crushing risk created by the fixed headboard and the moving tray.
   4. It was not necessary to be satisfied that pressure sensors were an industry standard for dealing with the crushing risk. Further, DAT should have identified the crushing risk and spoken to AHRNS about it before it used the tow truck where, in the unusual circumstances, it was not surprising that there may not be an industry standard at the time.[20]
   5. Reference was made to the judgment in Chugg v Pacific Dunlop Ltd (Chugg)[21] that in some cases the mere identification of the cause of a perceptible risk may, as a matter of common sense, also constitute identification of a means of removing that risk, thereby giving rise to a strong inference that an employer failed to provide "so far as is reasonably practicable" a safe workplace.
   6. In this case the risk was "so obvious or perceptible" and the lack of action by DAT in response to that risk gave rise to the inference that DAT had failed to comply with a health and safety duty under s 32 of the WHS Act.
   7. The evidence of Mr Kroon established that a pressure sensitive device was a reasonably practicable measure to minimise the crushing risk beyond a reasonable doubt.[22]
2. Calligeros DPJ concluded that the appeal should be dismissed.
3. Crawley DPJ agreed substantially with the reasons given by Calligeros DPJ. He added:

Had DAT sought the view of an engineer, as it ought reasonably to have done, the evidence establishes an engineering solution would have been suggested and as the Deputy President found, ought to have been implemented. The Court heard from two engineers both of whom discussed the idea of a pressure sensor.[23]

1. Gilchrist DPJ delivered a dissenting judgment. He considered that there were some findings of Cole DPM which were not proved. He referred firstly to the finding that the design of the truck was new. He considered the evidence only established that it was new to DAT. His Honour observed that that the design had been around since 2 November 2016 and that photographic evidence had been presented to the Tribunal of another truck with another operator's branding being used. Secondly, the evidence did not permit a finding that DAT was in possession of AHRNS's risk assessment report before 14 March 2018. Thirdly, Cole DPM made a finding that DAT had issued informal instructions that persons keep clear of the moving tray without identifying the evidence that could enable that finding to be made. He went on to observe that if that finding had been based upon what Mr Ravlich's work colleague had told Mr Ravlich about standing clear, that was insufficient for a finding that DAT had apprised itself of the risk.
2. Gilchrist DPJ considered the above-mentioned findings to have been critical to the conclusion that DAT ought reasonably to have known about the potential for eliminating or minimising the risk associated with the crush zone by engaging a suitably qualified person to provide advice and assistance. The resultant decision was thereby affected by error.[24]
3. Having satisfied himself that there was demonstrable and appealable error, Gilchrist DPJ then undertook a review of the evidence to ascertain whether the charge, as laid, had been proven beyond reasonable doubt. His findings and consideration may be summarised as follows:
   1. The concession on appeal by DAT that it should have appreciated the crush zone posed a risk of injury was noted.
   2. The relevant risk was not only of injury but of possibly catastrophic injury. In those circumstances DAT ought to have assessed the risk independently and should have appreciated that amelioration of the risk required more than just the signs that AHRNS had placed in and around the crush zone. DAT should have explored an engineering solution.[25]
   3. A tension existed between the opinion of Mr Kroon of the effectiveness of a pressure sensitive device and the evidence before the Tribunal that AHRNS "did not suggest it or something similar". It was noted that AHRNS had suggested a different photoelectric device.
   4. Whilst the evidence proved beyond reasonable doubt that a pressure sensitive device was readily available at the time and was relatively inexpensive, it was striking in such circumstances that none of AHRNS's recommendations, even after the event and in circumstances of a fatal accident and a Prohibition Notice, included the installation of a pressure sensitive device.[26]
   5. There was a "provisional aspect" to Mr Kroon's opinion related to the pressure sensitive device being a reasonably practicable engineering solution. Mr Kroon referred to the need to undertake drawing updates and field investigation of the equipment, investigation of how the device was to be integrated, and revising and updating the design accordingly. Reference was made to the evidence of the tow truck being a "complicated piece of plant". It was concluded that modification of such plant would require preliminary designs, trial implementations, reassessment, and if necessary further design and trial implementation, before a considered decision could be made as to whether the proposed measure was workable and reasonably practicable to implement.[27]

1. There was no evidence led at trial from either a designer or a manufacturer of tow trucks that the installation of a pressure sensor on the truck or something similar was workable and cost-effective and would have, in practise, ameliorated the risk. It was observed that, indeed, the only evidence from a manufacturer of tow trucks was from AHRNS which had advanced various proposals but none included the installation of a pressure sensitive device.
2. After considering these factors, Gilchrist DPJ concluded that he was left with a reasonable doubt as to whether the installation of a pressure sensitive device on the truck was a workable and cost-effective solution.

1. In its appeal to the Court of Appeal, DAT advanced four questions of law:
   1. Was the ultimate conclusion available on the facts as found and undisputed?
   2. Did the majority judges provide adequate reasons for their decision?
   3. Did the majority judges err by failing to address the correct question posed by s 19 of the WHS Act?
   4. Was the was the applicant denied procedural fairness?
2. Before addressing those questions, the majority (Livesey P and Bleby JA) made some observations relevant to the remitter:

1. The framing of the charge is critical. The burden lies upon the prosecution to prove beyond reasonable doubt that it was reasonably practicable for the defendant to undertake the particular measure identified in the charge.[28]

1. It was necessary in this case for the informant to prove, beyond reasonable doubt, that it was reasonably practicable for DAT to have adopted an engineering measure incorporating pressure sensors as set out in paragraph 1.6.b. of the Information and Summons.

1. It is not sufficient for the informant to identify this as a step that could possibly have been taken. The majority followed a passage from the judgment of the High Court in Baiada Poultry Pty Ltd v The Queen:[29]

The steps that are to be taken in performance of the duty are those that are reasonably practicable for the employer to take to achieve the identified end of providing and maintaining a safe working environment. Their demonstration that a step could have been taken and that, if taken, it might have had some effect on the safety of a working environment does not, without more, demonstrate that an employer has broken the duty imposed by s 21(1). The question remains whether the employer has so far as is reasonably practicable provided and maintained a safe working environment.[30]

1. It followed that the relevant question is not what is reasonably practicable as an abstract proposition but what is reasonably practicable for the employer within the relevant industry. That question must be determined having regard to what was reasonably practicable in prospect, before the alleged breach.[31]

1. In some circumstances the employment of independent contractors may be the only reasonably practicable way of ensuring and maintaining a safe working environment but that is not an absolute concept. An employer may have specialist skills or a role in its industry requiring, nonetheless, an understanding of safety risks and the need to undertake measures in respect of them. That may give rise to a duty to ascertain exactly what those measures might compromise if the employer does not know exactly.[32]
2. The observations of the majority follow earlier judgments of the Full Court that had held, in relation to the cognate s 19(1) of the former Occupational Health Safety and Welfare Act 1986 (SA), an element to be proved by the prosecutor is that there was or were one or more measures that the defendant did not take which, if taken, would have eliminated or reduced the risk to the health and safety of the worker and, further, that such measure or measures was or were reasonably practicable at the time stipulated in the particulars and the circumstances revealed by the evidence.[33]
3. In addressing what may be "reasonably practicable" the state of knowledge of the employer is an objective question.[34]
4. In addressing the first question of law raised, the majority made some observations in relation to the evidence at trial. Those observations are to be understood in context. The appeal to the Court of Appeal was limited to a question of law. There was no ability to review the evidence. The majority stated:

The other way of approaching this question of law is to focus on the proposition that DAT must establish on this appeal. This is that on the facts as found and undisputed, it was not open for the Tribunal to have found that the installation of a pressure sensitive device was a reasonably practicable measure for DAT to have implemented.[35] (emphasis added)

1. The majority was careful to ensure that the Court did not make findings itself by way of inference or to proceed on the basis of conclusions which may have been open but not necessarily warranted. The majority found that it was open for the majority of the Full Bench, upon the uncontested evidence, to have convicted DAT on the basis that it had failed to adopt a reasonably practicable measure, being the implementation of a pressure sensitive device in the crush zone.[36] However, the majority also found that it was open to Gilchrist DPJ to have a doubt based upon the significance that he accorded to the evidence about AHRNS's actions after the accident.
2. The majority stated there were important factual questions for assessment by the trier of fact that did not admit of only one answer.[37]
3. The next question of law addressed by the majority was whether the majority judges of the Full Bench erred by failing to address the correct question posed by s 19 of the WHS Act. The majority observed that the question focuses upon the incidence of the charge which was that the engineering solution raised was a reasonable and practicable measure for DAT to have adopted, not just that it was, in the abstract, a reasonable and practicable measure.
4. The majority disagreed with the reliance by Calligeros DPJ upon the judgment in Chugg in the manner that he did. The majority did not think it could be said that the obviousness of the risk also constituted identification of the charged means of removing the risk. Nevertheless, the majority was satisfied that Calligeros and Crawley DPJJ did, overall, approach the question by considering whether a pressure sensor was a reasonable and practicable measure for DAT to have implemented.[38] In addressing this question of law the majority referred to the submission of DAT of the weight to be attached to the post-accident history with AHRNS in evaluating whether the evidence proved the proposed measure was suitable to DAT from an operational viewpoint. The majority again observed that its jurisdiction did not enable it to review matters of fact.[39]
5. The final question of law addressed by the majority was whether Calligeros and Crawley DPJJ provided adequate reasons for their decision. The first particular of this question raised, was that there had been a failure to address or adequately address the contention that the prosecution had failed to prove that it was reasonably practicable for DAT to implement the particular engineering measure that was the subject of the charge. The majority observed the conclusion by Calligeros DPJ that the absence of an industry standard was not surprising, did not address DAT's contention that in the absence of an industry standard there was no evidence that the particularised measure would have been recommended.
6. The majority was satisfied Calligeros DPJ treated DAT's submission as being that the post-accident history showed that it was not reasonably practicable for an expert engaged by DAT to have contemplated a pressure sensitive device. The majority held that Calligeros DPJ erred in doing so. DAT's contention concerned what was reasonably practicable for DAT to have implemented. Further, their Honours found that by dismissing the post-accident history as not probative of that issue at all, Calligeros DPJ erred in failing to address DAT's contention, and the evidence supporting it.[40]
7. The majority referred to the statement of Crawley DPJ that had DAT sought the views of an engineer then an engineering solution would have been suggested. It was held that did not address DAT's contention that the evidence of the history showed that a pressure sensitive solution would not have been suggested by such an engineer, or that the evidence at least raised a reasonable doubt as to the reasonable practicality for DAT to have implemented a pressure sensor.[41]
8. The majority concluded that the reasons for decision of Calligeros and Crawley DPJJ were inadequate on an issue that was of importance to the determination of the appeal against conviction. It was that finding that resulted in the remitter to the Full Bench.[42]
9. In addressing the adequacy of reasons the majority was again careful not to deal with assessments of fact.[43]
10. In allowing the appeal on that ground the majority did not need to address whether there had been a denial of procedural fairness.
11. The dissent related to the conclusion of the majority that the reasons for decision of Calligeros and Crawley DPJJ on an issue of importance to the determination of the appeal against conviction were inadequate. S Doyle JA considered the reasons to be legally adequate and he would have dismissed the appeal.

The submissions of the parties to this Full Bench

1. DAT referred to the elements of the offence created by s 32 of the WHS Act and submitted that each element must be proved beyond a reasonable doubt. The burden to be discharged by the prosecution turns on how it frames the charge and it must prove that it was reasonably practicable for the defendant to undertake the particular measure that is the subject of the charge. Moreover, that is to be considered at the time of the incident and not with the benefit of hindsight.
2. DAT submitted that a defendant is not required to take every possible step that could be taken and that the mere identification of a step that may have had some effect on safety of a working environment does not, without more, demonstrate a breach of the relevant duty.
3. Where the identified measure involves the application of specialised expertise, DAT contended particular issues arise and, in this case, the expert knowledge required for the identification and application of the specified measure fell within the province of a specialised designer and manufacturer.
4. DAT identified the true question as what was reasonably practicable for DAT to do in the circumstances. It emphasised that the question is not answered by merely considering whether the specified engineering device was, in the abstract, a reasonably practicable engineering measure.
5. DAT submitted that upon a proper understanding of the reasons of the Court of Appeal, the charge could only be sustained if we conclude that there is no reasonable doubt that the particular charged measure would have been amongst those recommended to DAT, upon reasonable enquiry prior to the incident. It was contended that it would be insufficient to conclude that the charged solution was an available one to a hypothetical expert.
6. The absence of an industry standard is relevant to the evaluation and DAT noted it was common ground that there was no such industry standard relied upon by the informant.
7. Reference was made to the limited nature of the appeal considered by the Court of Appeal. It was noted that the matter was remitted to the Full Bench because the Court of Appeal found that the majority judges of the Full Bench had failed to address an important part of the evidence. It was noted by DAT that evidence related to the solutions suggested and undertaken by AHRNS post-accident.
8. DAT drew attention to aspects of the reasons of the Court of Appeal. Firstly, it submitted the Court of Appeal disagreed with the approach of Calligeros DPJ as to the significance of the absence of an industry standard and that it remains a factor to be taken into account in determining whether the charge, as laid, has been proven beyond a reasonable doubt. Next, it was contended that it was necessary for the informant to prove beyond a reasonable doubt that the particularised measure would have been recommended to DAT.
9. DAT submitted that Cole DPM made at least the same errors of law as the majority of the Full Bench as found by the Court of Appeal. It was contended that the reasons at first instance did not address the significance of the post-accident evidence or the contention that in the absence of an industry standard there was a reasonable doubt that the particularised measure would have been recommended.

1. The informant submitted that the expert evidence led at trial was sufficient to prove beyond a reasonable doubt that a pressure sensitive device was available, was suitable and that the cost was not disproportionate for DAT to have adopted, and that it would have reduced the risk of a person being crushed.
2. In addressing the nature of the appeal to the Full Bench, the informant noted that it remains necessary to demonstrate error before the finding of guilt can be set aside.
3. The informant observed that the only ground of appeal upon which the DAT succeeded in the Court of Appeal was the failure to give adequate reasons. The informant observed that the judgment of the Court of Appeal confirmed that the evidence of Mr Kroon was capable of proving beyond a reasonable doubt that the installation of a pressure sensitive device was a reasonably practicable measure for DAT to adopt.
4. In addressing Mr Kroon's evidence as to the availability and suitability of a pressure-sensitive device, the informant referred to reg 5 of the Work Health and Safety Regulations 2012 (the regulations), which defines what is required for a presence-sensing safeguarding system, reg 189, which imposes duties on designers of plant that use guarding as a control measure, and reg 222 which imposes obligations in prescribed circumstances. They were referred to as being the regulatory context which explained and underpinned Mr Kroon's opinions that an engineering control that detected the presence of a person in the crush zone ought to have been adopted as a "key way" to minimise the risk.
5. The informant accepted that the majority judges of the Court of Appeal also concluded that it had been open to Gilchrist DPJ to have a doubt as a result of giving more weight to the actions of AHRNS after the incident than he did to the expert evidence of Mr Kroon. The informant observed however that the majority added that AHRNS had manufactured the modifications to the tow truck and identified the crushing risk but had not identified the requirement of an engineering solution to address that risk.
6. The informant referred to Gilchrist DPJ having taken into account concerns in relation to Mr Kroon's evidence of costings where the Court of Appeal did not accept the submission of DAT that Mr Kroon's opinion was without value for want of unproved assumptions in relation to the cost of retrofitting. The majority of the Court of Appeal referred to Mr Kroon's evidence as an estimate based on his expert knowledge and the majority observed that he was not cross-examined on that evidence.
7. The informant submitted that, from the Court of Appeal's reasons, the correct question is whether a pressure sensitive device was a reasonable and practicable measure for DAT to have implemented. The informant submitted that was the question addressed by the first Full Bench.
8. Ultimately, the informant submitted that for this Full Bench to comply with the requirement to determine the appeal in accordance with the reasons of the Court of Appeal, the following three matters must be borne in mind:

a) The relevant question is whether a pressure sensitive device was a reasonable and practicable measure for [DAT] to have implemented, not whether it was a reasonable and practicable measure in the abstract; > > b) The existence of the crush zone was not sufficient to have suggested as a matter of common sense the particularised solution of a pressure sensitive device; and > > c) The post-accident history was not irrelevant to the question of reasonable practicability.[44]

The legal principles applicable to an appeal by way of rehearing

1. The legal principles relating to an appeal pursuant to s 67 of the SAET Act has been the subject of recent consideration by two Full Benches of this Tribunal.[45] The two Full Bench decisions refer to the judgment of the High Court in Lee v Lee.[46] The following passage from that judgment of the High Court was referred to by the first Full Bench and by the Court of Appeal in this matter:

A court of appeal is bound to conduct a "real review" of the evidence given at first instance and of the judge's reasons for judgment to determine whether the trial judge has erred in fact or law.[47] Appellate restraint with respect to interference with a trial judge's findings unless they are "glaringly improbable" or "contrary to compelling inferences"[48] is as to factual findings which are likely to have been affected by impressions about the credibility and reliability of witnesses formed by the trial judge as a result of seeing and hearing them give their evidence. It includes findings of secondary facts which are based on a combination of these impressions and other inferences from primary facts.[49] Thereafter, "in general an appellate court is in as good a position as the trial judge to decide on the proper inference to be drawn from facts which are undisputed or which, having been disputed, are established by the findings of the trial judge".[50] (footnotes included).

1. Upon remitter to this Full Bench neither party contended Cole DPM made demeanour-based findings of fact. On that basis DAT submitted we are in as good as position as the trial Deputy President to make findings of fact. As observed by the Full Bench in Chief Executive, Attorney-General's Department v South Australia Salaried Medical Officers Association, the trial judge enjoys other advantages. Cole DPM had the advantage of seeing and hearing the evidence as it unfolded, in full and in sequence. There were also opportunities in the trial which enabled reflection in the course of the trial. In addition, the appeal is by way of review, not a hearing de novo. We have been mindful of these matters as we have reviewed the evidence and the reasons of Cole DPM.
2. Whilst we are to consider the grounds and particulars of appeal as set out in paragraphs 23 and 24 of these reasons, we are required to do so in the light of the findings and reasons of the Court of Appeal. Our review of the evidence is for the limited purpose of determining whether the informant has proven beyond a reasonable doubt it was reasonably practicable for DAT to undertake the particular measure identified in 1.6.b. of the Information and Summons. DAT appropriately conceded it could no longer maintain that upon the facts as found and undisputed there could not be a finding of the charge having been proven beyond a reasonable doubt. Put another way, we are not to conduct a review of the evidence to determine if the evidence could have proven different particulars of the charge. The informant is bound by and the Tribunal is restricted to the charge as framed and presented.

The application of legal principles, findings and analysis

1. DAT objected to the Full Bench considering the submissions relating to the application of reg 5, reg 189, and reg 222 of the WHS Regulations. The submission was raised, for the first time, before this Full Bench. A submission that could have been raised at trial will not be permitted to be raised for the first time upon appeal unless exceptional circumstances are demonstrated.[51] There is nothing in the evidence of Mr Kroon to indicate he had regard to those regulations in formulating his opinions. Had the matter been raised at trial then, subject to the manner in which the regulations may have been relied upon, further evidence may have been adduced by DAT from Mr Hickey. The informant did not raise the regulations as a question of law but at a means of supporting the opinions expressed by Mr Kroon. Exceptional circumstances have not been demonstrated and the regulations are not appropriately raised for the first time upon appeal.
2. We accept the submission of the informant that an appellate court, in circumstances of an appeal by way of rehearing, may only exercise powers conferred to set aside the primary decision, where the appellant demonstrates that the primary decision is the result of error. In some cases it is only through the process of a review of the evidence that such error may be revealed. In other cases, error may be demonstrated without a detailed analysis of the evidence.
3. In this case, the statements made by Cole DPM indicate that the question asked and addressed was whether, on all the evidence, it was reasonably practicable, in the abstract, for a pressure sensitive device to have been introduced into the crush zone. The reasons do not disclose a consideration of the necessity for the informant to have proven, beyond reasonable doubt that at the time of the incident, by reference to what was objectively known, it was reasonably practicable for DAT, in its relevant industry, to have adopted an engineering measure incorporating pressure sensors in the manner described in 1.6.b. of the Information and Summons. His Honour did not adequately address the significance of AHRNS not having recommended such a device. With respect, his Honour did not adequately address the evidence of the history of the attempts to find a suitable measure after the incident.
4. We respectfully agree with some aspects of the observations of Gilchrist DPJ in the first Full Bench decision in relation to other findings made by Cole DPM. Whilst the modified tow truck utilised at the time of the incident was new to DAT, the evidence did not prove when the design was first created or the extent to which it may have been utilised by others before the incident. As observed by Gilchrist DPJ, the evidence included a photograph of a tow truck with the logo "All Suburbs Towing".[52] In the "Background" section of the reasons for judgment of the majority of the Court of Appeal there is a reference to the design having been, at the time of the incident, "relatively new".[53] The majority did not say that Judge Gilchrist's finding was not open to him. The reference is consistent with the majority referring to the tow truck being new relative to DAT.
5. We also agree with Gilchrist DPJ that the finding by Cole DPM that DAT was in possession of the AHRNS risk assessment report before the incident was not open because there was no evidence that DAT had been in possession of it before the incident. As we will explain below, for a number of months after the incident AHRNS explored and reported upon means of addressing the risk posed by the crush zone.
6. Having found that significant errors of fact and law were made at first instance, it is necessary for us to review the evidence that was presented at trial and to reach our own conclusion as to whether the charge by reference to 1.6.b. of the Information and Summons has been proven beyond a reasonable doubt.
7. Earlier in these reasons we set out the background as contained in the reasons of the majority of the Court of Appeal. Putting to one side reference to the design of the modified tray and headboard being "relatively new", the reported facts were not in dispute. We will only refer to them again where necessary. What follows is to be understood in the context of those facts.
8. As referred to earlier in these reasons, shortly after the incident the informant served upon DAT a Prohibition Notice relating to the use of the tow truck. The notice was issued by Inspector Hutchinson. In the notice, Inspector Hutchinson provides a date and time of 27 April 2018 at 13:20. She stated that she reasonably believed at the time that an activity may occur at the workplace of DAT that will involve a serious risk to the health and safety of a person emanating from an imminent exposure to a hazard and that the activity would be likely to be contravening a provision of the WHS Act. As to the basis of the belief she stated that as a result of the investigations into the incident, and in an inspection of the vehicle involved, she observed an ongoing risk of health and safety to other workers becoming trapped. She provided DAT with the following direction:

I direct the person with control over the following activity to stop the activity of: using the Izuzu (sic) Tilt Tray truck ATT 376. Vehicle may be driven from Staker Hydraulics... direct to AHRNS or... the tilt tray is not to be operated at any time until an inspector is satisfied that the matter that gives rise to the risk have been (sic) remedied.

1. DAT complied with the direction given. It arranged for the tow truck to be taken to AHRNS and AHRNS was requested to advise as to the means by which the crush risk could be further addressed and to the satisfaction of SafeWork SA. The evidence presented of what transpired from that point, was fragmented. It does demonstrate that a number of options were raised with SafeWork SA by AHRNS to further address the crush hazard.
2. By at least 16 March 2018 SafeWork SA had retained the services of Mr Peter Kroon.[54] At 3:58pm on 3 May 2018 Mr Clinton Ahrns from AHRNS forwarded an email transmission to Ms Hutchinson which attached some photographs demonstrating a proposed engineering solution incorporating the use of photoelectric sensors. He stated:

Sarah, photos of the changed made (sic) to the Dial A Tow truck. Fixed position guard rails sit just inside the outside of the tray. These are fitted with photoelectric sensors that when the light beam is broke (sic) will stop the tilt tray operation. The remote operation for any function also activates a beeper.

1. The technical aspects of the proposed engineering solution were not provided to the Tribunal.
2. Mr Kroon wrote to Ms Hutchinson by email at 4:53pm that day. We draw the inference that Ms Hutchinson provided the information and documentation received from Mr Ahrns to Mr Kroon for his consideration. Mr Kroon did not support the measure proposed by AHRNS. He stated:

There appears to still be a credible crush zone not addressed by this modification. The inclusion of the PE is a nice touch to reduce the chance of being in the area and not being detected as it will detect a person leaning on the rail. As the solution does not fully remove the crush point I would not suggest it minimised (sic) the risk and thus addressed their obligations.

1. Mr Kroon raised further works that may need to be undertaken to other operating systems of the tow truck. He referred to both hydraulic and pneumatic systems. He stated:

There would need to be modifications made to the hydraulics and pneumatic systems to enable the photoelectric sensors to be implemented correctly. These changes are also required for the emergency stop to be considered adequate.

1. At 5:17pm on 3 May 2018 Ms Hutchinson replied to Mr Kroon stating that that she shared Mr Kroon's concerns.
2. Ultimately, a different engineering solution was proposed by AHRNS and approved by SafeWork SA. That engineering solution was expressed by the parties in an agreed statement of facts in the following way:

The Engineering Solution

17. After the incident on 14 March 2028, the truck was taken to the premises of [AHRNS].

18. [AHRNS] made changes to the truck so as to reduce or eliminate the risk posed by the crush zone by:

1. Installing a system that stopped the tilt-tray once it was within 30cm of the headboard when being returned to its resting position;
2. Adding a system that required the tilt-tray operator to stand adjacent to the crush zone and press two buttons manually which were situated on the side of the headboard next to the crush zone in order to bring the tilt-tray to its final resting position;
3. Adding a hazard sign next to the crush zone warning the operator to ensure the crush zone was clear before returning the tilt-tray to its final resting position.

1. This engineering solution formed part of the particulars of the charge against DAT. One of the reasonably practicable measures pleaded in the Information and Summons at 1.6.a. stated:
   1. Adopting an engineering measure that stopped the tray top from moving once it reached the proximity of the headboard and required the operator to return the tray top to its resting position manually in a position adjacent to the crush zone.
2. In his opening address to Cole DPM, counsel for the informant referred to the engineering measure ultimately adopted by DAT as being the measure referred to in 1.6.a. of the Information and Summons.[55]
3. Cole DPM did not find the charge proven by reference to that engineering measure. His Honour referred to AHRNS having taken "many months" to design and complete that system and that the informant had not presented evidence of the cost involved.[56] It did not form a part of the informant's case in in the appeal by way of review to the first Full Bench. As Gilchrist DPJ stated in his reasons:

In connection with this appeal SafeWork SA accepts that [Cole DPM] was not satisfied that the case, based upon DAT's failure to adopt an engineering measure that required the operator to return the tray top to its resting position manually in a position adjacent to the crush zone and its failure to remove the storage areas from the crush zone and relocate them elsewhere, had been made out. As no notice of cross-contention was lodged at by [the informant] these matters do not require further consideration.[57]

1. Before addressing in more detail the evidence presented to Cole DPM, it is convenient to make some observations in relation to the photographs of the tow truck that were tendered in evidence. They showed toolboxes affixed to the headboard on either side and, in the middle, a tow bar. Because of the placement of the toolboxes, the tray did not have a straight edge leading to the headboard. Only the centre portion abutted the headboard. Either side was then recessed in order to abut the toolboxes when retracted towards the headboard. The photographs showed a winch in the centre near the headboard and upon the side, under the tray, a panel containing a number of levers, buttons and switches. The photographs are consistent with complex machinery involving electrical, pneumatic and hydraulic components. These features are relevant to an understanding of the evidence that was given by the engineering experts.
2. Mr Ravlich's co-worker at the time of the incident, Mr Trevor Horne, gave evidence. He referred to the winch together with the hooks and straps that were used to secure a vehicle being loaded onto the tray. He did not provide evidence relevant to the technical operation of the moving tray.
3. From the evidence, at least five inspectors of SafeWork SA were involved in the investigation of the incident. There are references to Inspectors Alison McCallum, Hayley Millwood, Sarah Hutchinson, Grant Ireland and David Rynes. Through Ms McCallum, two risk assessments of DAT were tendered. The first was dated 19 May 2017 which predated the incident.[58] The second was dated 24 April 2018 and had been prepared after the incident.[59] The second risk assessment referred to a hydraulic mechanism associated with the moving tray.
4. As noted earlier in these reasons, Mr Rynes inspected the tow truck involved in the incident with Mr Kroon on 16 March 2018. Mr Rynes referred to that inspection as having been brief and it being associated with the remote control. He stated that the inspection did not involve the operation of the tow truck. He then gave evidence that, four days later on 20 March 2018, he inspected the tow truck again but on this occasion it was with Mr Andrew O'Regan from Sage Automation. When asked the purpose of that visit Mr Rynes stated:

WITNESS: The purpose of the visit was for me to be able to provide access to the tow truck for the purposes of Mr O'Regan to undertake a more detailed examination and testing of the tow truck.[60]

1. Upon being asked, in general terms, the nature of the tests performed by Mr O'Regan, Mr Rynes stated:

WITNESS: Again, Mr O'Regan was focused on primarily the control systems for the tilt tray of the truck with the modifications that had been informed to us that had occurred. So they were to do with the sender/receiver for the remote-control unit. The remote control itself and the function of the controls mounted at the rear of the tray.[61]

1. Later in his evidence Mr Rynes returned to the nature of the tests performed by Mr O'Regan. He explained that at least some of the tests were directed to ascertaining whether there was any interference in the signal between the remote control and the receiver that operated the tray.[62]
2. We draw the inference that, at least at that time, the expertise of Mr O'Regan was considered by SafeWork SA to be better suited than that of Mr Kroon to undertake the tests performed by Mr O'Regan. The results of the tests performed by Mr O'Regan were not conveyed to the Tribunal. The evidence does not disclose if the results were conveyed to Mr Kroon. No evidence was received either orally or in written form from Mr O'Regan. Whether the results of the tests performed by Mr O'Regan had relevance to the reasonable practicability of the installation of a pressure sensitive device, in the circumstances of DAT, was not addressed in the evidence presented at trial.
3. Mr Rynes then gave evidence of subsequent attendances upon AHRNS and discussions that took place as to possible modifications to address matters identified in the inspection undertaken by Mr Rynes and Mr O'Regan. Mr Rynes gave evidence that, apart from being an inspector, he is also a Chief Advisor Engineer with SafeWork SA. He referred to that role as involving the giving of high level technical advice to the agency both within the inspectorate as well as external stakeholders.[63] Mr Rynes' qualifications as an engineer were not proven. Details of his skills, training and experience were not proven.
4. In relation to his attendances at AHRNS after the incident, Mr Rynes referred to his role as being an observer and also the provision of his "expert opinion as an engineer".
5. Mr Rynes attended upon AHRNS on two separate dates. On the second date he attended twice in the same day. He referred to his observations at the time of the first visit. The modifications made at that time included a physical bar and the mounting of optical sensors. There were concerns expressed by Mr Rynes as to the effectiveness of those measures to shut down the operation of the tray related to the robustness of the optical sensors and whether the steps that were added to the tray were now in such a close proximity to an intrusion bar that a sheer point could be created. At the time of the second day of visits he observed the changes to the return speed of the tray when 60cm from the headboard and the installation of a physical two hand control. No concerns were raised by Mr Rynes in his evidence as to what he observed on the second day of visits. Mr Rynes was not asked and did not give evidence about either the effectiveness or the practicability of the installation of a pressure sensitive device.
6. In her oral evidence in cross-examination Ms Hutchinson referred to the Prohibition Notice that she served upon AHRNS. She agreed that the reason for her direction was an acceptance that AHRNS are "specialists in tilt slide trays and the design engineering and manufacture".[64] Ms Hutchinson gave some evidence of stages of modifications that were recommended and undertaken by AHRNS before the final modifications which persuaded SafeWork SA to remove the Prohibition Notice. The process involved officers of SafeWork SA relying upon the expertise of AHRNS in relation to the design manufacture and installation of modifications that could be made and the officers of SafeWork SA would then consider whether they were satisfied that the works undertaken satisfactorily addressed the crush risk. Her evidence indicates that there were five visits and reviews of modifications undertaken by AHRNS before the Prohibition Notice was removed on 30 November 2018.[65] After establishing that the Prohibition Notice had been removed on 30 November 2018, the following exchange took place in cross-examination:

MR MANOS: You were satisfied that day that adequate measures had been made in relation to reducing the risks and hazards and you removed the prohibition notice.

WITNESS: That's correct.[66]

1. Ms Hutchinson agreed that it took five visits and around eight months for the removal of the Prohibition Notice.
2. Mr Kroon was the main expert relied upon by the informant at trial. In his oral evidence he referred to himself as a safety engineer who specialises in safety and systems engineering. His curriculum vitae was tendered in evidence. It refers to nearly 30 years of experience working in a variety of industrial controls and automation sectors. It states that Mr Kroon has worked in all stages of project delivery and has a good understanding of what is required to deliver a successful project on time and on budget. His academic qualifications are not clearly identified. It refers to "TUV Functional Safety Expert #248/15" and "TUV Functional Safety Engineer #334/06". Whether Mr Kroon has completed a certificate, diploma or degree in a tertiary institution is not identified. He refers to professional associations including being a member of the International Council on systems engineering and that he is a member of the Australian Safety Critical Systems Association and of the Systems Engineering Society of Australia. Mr Kroon also refers to being a member of various standards committees. In this context, it remained for the expert evidence to explain how Mr Kroon's field of "specialist knowledge" in which he is an expert by reason of his "training, study or experience" and on which the opinion is "wholly or substantially based", applies to the facts assumed or observed so as to produce the opinion propounded.[67] There was no challenge at trial to the admissibility of the expert opinion given by Mr Kroon but these matters remain relevant to the weight to be attached to the opinion evidence given.
3. In his evidence Mr Kroon referred to a report that he prepared for the informant dated February 2020. The report was not tendered. He was asked about his inspection of the tow truck that was involved in the incident. He referred to it having a "unique or not a conventional arrangement". He was referring to the tray not being affixed to the headboard. The most significant concern identified by Mr Kroon related to the placement of the toolboxes mounted to the headboard. He observed this identified a crush risk to someone standing in front of the toolbox as the tray is being returned to the headboard. An aspect of the concern was that the person would be likely to be facing the toolbox and with their back to the retracting tray.
4. Mr Kroon was asked if he had any concern with an operator being able to use a remote control to operate the moving tray. Mr Kroon expressed a concern that the use of a remote control would not maintain a close proximity to a significant crush point.
5. Mr Kroon stated that when undertaking a risk assessment there is a need to be pragmatic in relation to the risks to be managed and as to how to effectively control those risks. He identified mobile machinery as being "a particularly challenging field for this topic".
6. The measures that had been implemented prior to the incident, including the use of warning signs, were considered to be inadequate by Mr Kroon. Firstly, he was not satisfied that, in the context of where the signs had been placed, they would have necessarily been noticed. Secondly, he viewed warning signs as a measure of reinforcement and not the primary means of ensuring safety.
7. He concluded that the key way of managing the risk associated with the crush zone would be to use an engineering control that would detect the presence of a person in the crush zone as the tray is closing. He did not solely refer to a pressure-sensitive device. He stated:

Now, that's whether it would be a pressure-sensitive device, so in the event that someone is getting caught in that area, it would be detected and the machine would automatically stop, or an opto-electronic device, which would then actually be able to, via the use of a laser or light beams, actually identify that someone is in the area and inhibit operation of the machine.[68]

1. Following that answer, counsel for the informant asked questions directed specifically to the option of a pressure-sensitive device. Mr Kroon referred to the need to engage with the operators of the plant. We understood Mr Kroon to be referring to the need to have an understanding of the particular circumstances associated with the use of the plant in order to achieve the best outcome. In relation to the placement of the pressure-sensitive pads, Mr Kroon referred to options including across the headboard and on the sides. Reference was also made to installing the pressure-sensitive pads down the sides of steps and across the tray. Mr Kroon referred to moving cables, hydraulics, and actuators which, as we understood his evidence, would need to be considered in the design, manufacture, and installation of any pressure-sensitive plate system that may be implemented. In addressing how the system would work, Mr Kroon stated:

WITNESS: So the way a pressure-sensitive device works is it's a formable piece of rubber and what happens is when it gets pushed or something pushes into that rubber there's elements within the rubber that come into contact with each other and that sense a signal to a monitoring unit and then the monitoring unit would be able to turn off the hydraulics and there would be options on how you could inhibit the hydraulics but essentially it would stop the hydraulic energy getting to the actuators which would mean that the tray would be held in position.[69]

1. Whilst Mr Kroon referred to the tray in his answer, a reading of his evidence as a whole indicates that his answer was primarily in the abstract. When specific questions were asked such as the pressure required for the circuit to be activated, Mr Kroon replied that there were different sensor densities, a matter to be addressed in the design processes.
2. Whilst Mr Kroon did not expect a need for ongoing maintenance of the device, he did expect a daily inspection reigime whereby, as part of the pre-start for the truck, an operator would push against the rubbers on each side to make sure that the system reacted to their activation.
3. Mr Kroon was then specifically asked in relation to the option of an optical-electronic device. He referred to the device as emitting a light beam which is sent and then received. If broken, it detects something in the area. He referred to some practical difficulties including the possibility of a build up of dirt and grime which could affect the operation of the lens.
4. Mr Kroon then addressed the costs associated with the option of a pressure-sensitive device. His evidence was that, if included as part of the initial truck supply, then his estimate was $2,576.45. He stated that as a retrofit activity, a design would be required. He estimated another couple of thousand dollars.
5. It is not clear from the evidence of Mr Kroon where the formable pieces of rubber would be mounted for the purposes of the quotation that was given. The detail may have been addressed in a report, which he appears to have referred to when providing his oral evidence as to the quotation. However, as already noted, that report was not tendered in evidence. When addressing the different possible positions, Mr Kroon identified some issues. To the extent it could be mounted to the fixed headboard, he observed that it would be easier to install because of the absence of moving cables. However, in the alternate positions, he stated that there would be increased complexity of installation. He referred to such complexity associated with mounting the rubber across the tray and potentially down the side of the step. Initially he referred to only "a convenience and cost of installation downside", but then he referred to the probability of issues developing with cables continuously being bent and flexed. He stated:

WITNESS: So down the step and across the tray. The downside to doing that - it's only a convenience and cost of install downside, is the fact that you would then have cabling in the moving tray section so it would only - it would obviously be more complicated to install and at some point you would probably expect that there may be issues with the cables continuously being bent and flexed, but the advantage of that is it doesn't matter where the tray encounters someone. It would inhibit the operation of the tray.[70]

1. The informant called Mr Stuart Croser, a qualified civil engineer and member of Engineers Australia. He is a recognised engineering signatory for the National Heavy Vehicle Regulator. That body administers heavy vehicles for participating jurisdictions in Australia including South Australia. The effect is that he is an approved examiner in circumstances of modifications undertaken to heavy vehicles. On 2 November 2016, after the modifications related to the incident, Mr Croser performed an inspection of the vehicle that was involved. However, Mr Croser gave evidence that the certification process did not incorporate how the modifications undertaken operated. His certification was restricted to whether the vehicle is structurally sound and can carry the payload it is designed for. Any risk associated with the crush zone did not form part of his evaluation.
2. Mr John Hickey gave expert evidence and was called by DAT. His academic qualifications are a Certificate in Mechanical Engineering and a Diploma of Applied Science. He gave oral evidence of his training and experience. Mr Hickey prepared an expert report dated 7 December 2021. The report, together with this curriculum vitae as an attachment to the report, were received in evidence as an exhibit. The report was commissioned by the solicitors acting for DAT. There is no evidence as to whether a copy of the report was released to the informant, or his solicitors, prior to the trial.
3. It is convenient to address aspects of the report of Mr Hickey first. As a result of the non-straight edge of the tray as it returns to the headboard and the affixed tool boxes on either side, there were a number of locations that needed to be addressed. He referred to crush zones other than between the returning tray and a tool box. Secondly, he expressed the opinion that the severity of the crush risk at each and every location and the total quantum of the risk inherent in the use of the tilt tray tow truck was unlikely to have been reduced by the installation of a pressure-sensitive device. Thirdly, the relevant process when considering an engineering solution is to initially raise a concept, then undertake an engineering design which transforms the concept into a technical design, and then whether the design is capable of being manufactured is to be addressed. He added that the process usually requires drawings and specifications as to materials and components and includes early decisions about the individual functions that are necessary to achieve the aims of the concept. He stated that the design process requires decisions to be made as to how certain functions are to be achieved and/or monitored, whether structurally, mechanically, electrically, electronically, magnetically, hydraulically, or pneumatically. He referred to the designer needing to consider the manufacturing process at the design stage. Mr Hickey also referred to other matters needing to be addressed such as design life and what would be required to maintain the process in an effective manner. He stated that the extent to which the process requires regular testing and the vulnerability of components to deterioration or replacement is also to be considered. Mr Hickey addressed issues that may arise at the manufacturing stage. He referred to the possibility of the manufacturer identifying issues that may not have been considered by the designer who did not have the same understanding of issues that may arise in the manufacturing process.
4. Mr Hickey referred to the specialised knowledge and expertise of AHRNS in the design, manufacture, installation, and supply of the tilt tray, the tow truck, and the power and control systems associated with the tow truck that was involved in the incident, and as we understand his report, more generally in relation to tow trucks. In all the circumstances, Mr Hickey expressed the opinion that DAT had acted in a reasonably practicable manner in relying upon that expertise as it used the tow truck at the time of the incident.
5. In the letter commissioning his report, Mr Hickey was asked whether the use of a pressure sensitive device mounted on the tray would have inhibited movement when pressure was detected. He initially stated that if such a pressure-sensitive device had been installed before the incident then it may have reduced the risk of Mr Ravlich having been crushed between the leading edge of the moving tray and the fixed headboard. Mr Hickey added that the crush risk associated with other crush zones inherent in the design would have remained. Mr Hickey considered the other crush zones to have generally given rise to a greater crush risk. In addition, Mr Hickey expressed concern that it would have been both difficult and expensive to maintain the pressure-sensitive device within its calibration and reliable operating parameters and that unless the device was tested rigorously and perhaps before each use of the tow truck, it could have provided a false sense of security and safety for operators of that equipment. He referred to the towing industry operating in testing circumstances and operational conditions and that plant and equipment is required to be robust enough to operate in such circumstances.
6. Mr Hickey referred to and addressed risk-control measures proposed by Mr Kroon in a report that he referred to dated October 2019 and a second report referred to as dated February 2020. The first report of Mr Kroon appears to have been at least 50 pages and the second report appears to have been at least 41 pages. Neither report of Mr Kroon was received in evidence. That has resulted in some difficulty in understanding aspects of the opinion of Mr Hickey. In addition, there were aspects of the evidence of Mr Kroon that were relatively brief and that may have been in the context of the two reports that Mr Kroon had prepared. In his report, Mr Hickey also addressed the measures undertaken by AHRNS after the incident including the measure ultimately approved by SafeWork SA. Mr Hickey noted that the use of a pressure-sensitive device had not been proposed by AHRNS notwithstanding its expertise. In relation to the measure that was approved, Mr Hickey expressed a concern that an operator who may be standing immediately adjacent to the crush zone operating controls be at risk due to the proximity to the crush zone.
7. In his oral evidence, Mr Hickey reiterated his concern that a pressure-sensitive device would have been difficult and/or expensive to keep within its calibration and reliable parameters unless tested rigorously and regularly. He referred to a possible need for that to be undertaken between each and every retrieval operation. He stated that otherwise, an operator would be under a false sense of security. He referred to potential failures of the rubber failing to detect a person, or failing to activate the hydraulics to prevent the crush zone rising upon the person.
8. Mr Hickey expressed the opinion that designers and manufacturers are obliged to factor into those processes risks to safety in the manner in which the end user intends to operate. Where risks are unable to be eliminated, in his view, the designer and manufacturer are obliged to notify the end user of the residual risks.
9. In addressing the opto-electronic device, Mr Hickey considered that the same issues arose as with the pressure-sensitive device.
10. In cross-examination, Mr Hickey accepted that a manufacturer may not know everything about the use to which the end user proposes to put the piece of equipment and that, in such circumstances, the end user should perform their own risk assessment. He accepted that, if necessary, the end user should obtain expert advice. As for the source of that advice, Mr Hickey referred to the people who originally designed the truck.
11. After a series of questions related to the tool boxes affixed on either side of the headboard, Mr Hickey was asked by counsel for the informant whether he agreed, "generally", that the pressure-sensitive device would have reduced the risk arising from "this" crush zone. It is not clear as to whether counsel was referring to the crush zone between the returning tray and the headboard, the returning tray and the tool box, or both. Counsel was aware of Mr Hickey's view that there were a number of crush zones associated with the operation of the returning tray and Mr Hickey agreed with one such crush zone, as an example, was being crushed beneath the tray top as it was coming down. Mr Hickey gave further evidence in relation to the other measures raised to address the risk associated with the crush zone including the method ultimately approved by SafeWork SA but it is not necessary to address that evidence.
12. Before addressing the differences in expert opinion and the submissions of the parties, we remind ourselves of the following:
    1. The onus remains at all times upon the informant to prove its case beyond a reasonable doubt.
    2. It is necessary to weigh and consider the totality of the evidence.[71] When this is done, one piece of evidence may resolve a doubt as to another.[72] In another case, doubts about each piece of evidence may be reinforced rather that resolved.[73]
    3. The principles related to the application of the rule in Browne v Dunn[74] in criminal cases. DAT was not required to prove anything. To the extent an issue is raised of counsel for DAT not having put to Mr Kroon aspects of the opinions expressed by Mr Hickey, the rule in Browne v Dunn, to the extent it may have application in this case, it is to be applied to achieve the object of the rule and that is to achieve fairness. We would have expected the report of Mr Hickey to have been discovered and produced to the informant prior to trial. If it was not, leave could have been sought to recall Mr Kroon and counsel for the informant could have raised any further matter at that time.
    4. If we conclude there is a doubt, it is only where advantage in seeing and hearing the evidence is capable of resolving a doubt experienced by an appellate court that the court may conclude that no miscarriage of justice occurred.[75]
13. The first matter to be addressed upon the evidence is whether, as was the opinion of Mr Hickey in his report, DAT, in all the circumstances, ensured the health and safety of Mr Ravlich and others insofar as was reasonably practicable by relying upon the expertise of AHRNS in the design, manufacture, supply, and installation of the modified tray to the tow truck involved in the incident.
14. DAT has extensive industry experience. It is familiar with the operation of tow trucks and, upon receipt of the modified tow truck, either was aware, or should have been aware, of the existence of the crush zones associated with the returning tray and the risk of injury, including fatal injury.
15. DAT should have appreciated, in the circumstances in which the tow truck was to be used by it, that the warning signs and the remote control device were inadequate measures. This was so having regard to the following factors:
    1. The placement of the tool boxes affixed to the tray, the items kept in the tool boxes, and the likelihood of someone standing in the crush zone as the tray was being retracted towards the headboard.
    2. As illustrated by the incident, the possibility of two workers being in or near the crush zone at the same time together with the use of a remote control device which gave rise to the possibility of one person operating the control box and being unaware of a coworker being in the crush zone.
    3. Where one worker was sent to retrieve a vehicle, the possibility of someone else being in the crush zone.
    4. As observed by Rossi DPJ in his sentencing remarks, the ambient circumstances may be distracting. First responders such as police, ambulance officers, and fire officers may be in the vicinity. There may be passing traffic. Ambient noise may affect the ability to hear the tilt tray being retracted. We note that someone may otherwise be distracted by the task at hand. The risk of serious injury or death was real.
16. Given the objective knowledge of DAT of these circumstances, it 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.
17. That finding, in itself, is insufficient for a finding of guilt to the specific charge laid. We now turn to whether the prosecution has proven its case relating to the use of a pressure sensitive device and, whether it has proven beyond a reasonable doubt that had DAT sought the expert opinion then the use of a pressure sensitive device would have been recommended, in its circumstances.
18. There are significant differences between the expert opinion of Mr Kroon and that of Mr Hickey. The effect of Mr Kroon's evidence was that the risk of injury in the crush zone where Mr Ravlich was crushed could have been eliminated by the installation of a pressure-sensitive device with an overall estimated cost of around $5,000, which required no maintenance, and, as a recommendation, should be tested each day before the truck is used. It was Mr Kroon's recommended measure.
19. Ultimately, Mr Hickey accepted that the installation of a pressure-sensitive device would have reduced the risk in relation to the particular crush zone, but other crush zones should have remained. As we understood his evidence, Mr Hickey maintained the opinion expressed in his report that he did not recommend the installation of a pressure-sensitive device. Apart from the remaining crush zones, Mr Hickey referred to the following:
    1. The process associated with the design, manufacture, supply, and installation.
    2. It would have been difficult and/or expensive to keep the device within its calibration and reliable operating parameters and that unless tested rigorously and perhaps between each and every retrieval operation, a false sense of security and safety could have been generated. He stated that this type of equipment in the towing industry must be robust enough to operating in sometimes quite testing circumstances and operational conditions.
20. In considering the differences in expert opinion, we have had regard to the following:
    1. It appears there is no industry standard relating to the use of a pressure-sensitive device. The circumstances are not confined to the modified tow truck. There was no evidence of an industry standard for the use of a pressure-sensitive device in circumstances of moving plant which may create a crush zone for a person who may be standing in that zone. Whilst, in itself, this factor does not exclude the use of a pressure-sensitive device in industry generally in such circumstances, it is to be considered in the light of the other factors, which will be addressed further below.
    2. Neither the informant nor Mr Kroon or Mr Hickey raised any concern in relation to the expertise of AHRNS relating to the design, manufacture, supply, and installation of the modified tow truck and its modified tray and headboard system. It is significant that over a period of some eight months and various options having been considered, there is no evidence of AHRNS, at any time, recommending or even raising as an option a pressure-sensitive device. This factor is not straightforward. It was AHRNS who initially manufactured and supplied the modified tow truck. In its pre-incident assessment, it identified the crush zone related to the incident and risk associated with it. It addressed that risk inadequately with warning signs and the use of the remote control box to halt the retracting tray. It also relied upon the provision and following of safety instructions. AHRNS was also prosecuted by SafeWork SA in relation to the incident and it pleaded guilty to a charge of being a person having a health and safety duty that failed to comply with that duty an thereby exposed persons to a risk of death contrary to ss 32 and 25 of the WHS Act.[76] The evidence did not address when SafeWork SA first considered the possibility of prosecuting AHRNS or when AHRNS first became aware of the possibility of it being the subject of a prosecution. Whilst noting these circumstances, we are satisfied the evidence demonstrates that AHRNS advanced the further and alternative measures to those that operated at the time of the incident it considered were reasonably practicable to address the crush risk in the circumstances of the operation of tow trucks by DAT. The system recommended by AHRNS, which was ultimately approved by SafeWork SA, formed the basis of particular 1.6.a. of the Information and Summons. 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. That is in the context of the evidence of Mr Kroon that a pressure-sensitive device would be an effective and relatively inexpensive means of addressing the risk in the crush zone. It causes us to have some doubt as to the reliability of Mr Kroon's evidence, to the extent it was adduced.
    3. Mr Kroon briefly and generally referred to further design and manufacture steps that would need to be undertaken before his recommended pressure-sensitive device could be installed in the modified tow truck. His evidence was on the basis of satisfactory drawings, field investigation of the device, and how it would be integrated with the existing plant, machinery, and systems. More detailed evidence in relation to those matters was not presented at trial. 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. This also gives rise to doubt as to the reasonable practicability of Mr Kroon's recommendation.

Reliance on the rule in Browne v Dunn can be both misplaced and overstated. If the evidence in the case has not been completed, a party genuinely taken by surprise by reason of a failure on the part of the other to put a relevant matter in cross-examination, can almost always, especially in ordinary civil litigation, mitigate or cure any difficulty so arising by seeking or offering the recall of the witness to enable the matter to be put. In criminal cases, in many jurisdictions, the salutary practice of excusing witnesses temporarily only, and on the understanding that they must make themselves available to be recalled if necessary at any time before a verdict is given, is adopted. There may be some circumstances in which it could be unfair to permit the recalling of a witness, but in general, subject to the obligation of the prosecution not to split its case, and to present or make available all of the relevant evidence to an accused, the course that we have suggested is one that should be able to be adopted on most occasions without injustice.

The obligation of the prosecution to present its whole case in chief and the existence of the unavoidable burden of proof carried by the prosecution are of particular relevance here. Doyle CJ was critical of the appellant for not putting the inconsistency between the complainant and her mother, in turn giving rise to an internal inconsistency in the complainant's account, to the complainant. The criticism does not give due weight to the obligations of the prosecution to which we have referred. It is not for the defence to clear up, or resolve inconsistencies in the case for the prosecution. As soon as the inconsistency emerged, and the trial judge rejected the appellant's objection to the evidence intended to be adduced from the complainant's mother, it was open for the prosecution to offer to tender the complainant for further cross-examination. Had that happened, it would then, and only then, have been for the appellant, to decide whether to embrace the offer or not. If he had not, then and only then would the criticism that the Court of Criminal Appeal made of his conduct have been valid. The position of an accused who bears no burden of proof in a criminal trial cannot be equated with the position of a defendant in civil proceedings. The rule in Browne v Dunn can no more be applied, or applied without serious qualification, to an accused in a criminal trial can the not dissimilar rule in Jones v Dunkel... In each case it is necessary to consider the applicability of the rule (if any) having regard to the essential accusatory character of the criminal trial in this country.[79]

Where there is a failure to observe the rule in Browne v Dunn, the consequences will depend upon the circumstances of the case and, ordinarily, will be related to the central object of the rule which is to secure fairness.[80] In this case, the evidence does not confirm whether the report of Mr Hickey had been discovered and produced to the informant prior to trial. If it had, then no unfairness would follow, from the failure to put those matters to Mr Kroon in cross-examination. The transcript of the proceedings suggests that the informant's counsel was in possession of the report before Mr Hickey gave his evidence. That does not confirm however that it had been made available prior to Mr Kroon giving his evidence. In any event, it had been open to counsel for the informant to have raised the failure to have cross-examined Mr Kroon in relation to the matters now being considered and could have made Mr Kroon available for further cross-examination. It is only in those circumstances, if the matters were not then put in cross-examination, to have drawn adverse inferences against DAT in relation to the evidence given by Mr Hickey. We have taken into account in our consideration of the expert evidence, that, ultimately, the matters were not put to Mr Kroon and we do not rule out the possibility that Mr Kroon may have been able to satisfactorily address the concerns that had been raised by Mr Hickey.

1. The individual doubts that we have in relation to the points raised in the preceding paragraph are reinforced by the doubts identified by the other points. The evidence as a whole leaves a significant doubt as to whether the installation of a pressure-sensitive device, as raised by Mr Kroon, was a reasonably practicable measure for DAT to have adopted, at the time of the incident, to have eliminated or to have minimised the risk to the health and safety of workers engaged by it insofar as was reasonably practicable. The advantages of having presided over the trial do not answer the points leading to doubt or give rise to a different outcome.
2. Upon the totality of the evidence the informant failed to prove beyond a reasonable doubt that it was reasonably practicable for DAT to have adopted the engineering measure incorporating pressure sensors as set out in paragraph 1.6.b. of the Information and Summons. The informant has not proven beyond a reasonable doubt that had DAT identified the risk of injury, including fatal injury, as a result of the crush zone of the modified tow truck as supplied by AHRNS, and had sought expert advice as to how to address that risk, that a solution incorporating a pressure-sensitive device as pleaded in paragraph 1.6.b. of the Information and Summons would have been recommended, in DAT's circumstances.
3. The appeal is to be allowed. The conviction entered is to be set aside and substituted with a verdict of acquittal.
4. Liberty is granted to the parties to apply for any consequential orders.

[1] Campbell v Dial a Tow Australia Pty Ltd [2022] SAET 36 (the primary decision).

[2] [2024] SASCA 151 (the Court of Appeal decision).

[3] The Court of Appeal decision [141] (Livesey P and Bleby JA).

[4] The Court of Appeal decision [3] and [67] (Livesey P and Bleby JA). Pursuant to s 68 of the SAET Act an appeal to the Court of Appeal lies by permission on a question of law only.

[5] The Court of Appeal decision [9]-[17].

[6] Particular 1.6.c. was withdrawn by the informant in the course of his counsel's opening address to Cole DPM.

[12] Section 6A(6)(a) of the SAET Act. That provision has since been amended and now s 6A(6) provides that where proceedings for a minor indictable offence are dealt with by a magistrate of the South Australian Employment Court, the magistrate cannot impose a fine that exceeds the maximum fixed by the relevant Act or $1,500,000 (whichever is the lesser) and the magistrate cannot impose a sentence of imprisonment that exceeds the maximum fixed by the relevant Act or five years (whichever is the lesser).

[13] [2022] SAET 124 (the sentencing decision).

[15] Calligeros and the Crawley DPJJ, with Gilchrist DPJ in dissent.

[16] Dial A Tow Australia Pty Ltd v Campell [2023] SAET 49 at [178] (the first Full Bench decision).

[17] The first Full Bench decision at [185].

[18] The first Full Bench decision at [188].

[19] The first Full Bench decision at [189].

[20] The first Full Bench decision at [191].

[21] [1990] HCA 41; (1990) 170 CLR 249.

[22] The first Full Bench decision at [196].

[23] The first Full Bench decision at [236].

[24] The first Full Bench decision at [108].

[25] The first Full Bench decision at [113].

[26] The first Full Bench decision at [117].

[27] The first Full Bench decision at [119].

[28] The Court of Appeal decision at [68] and reference to Kirk v Industrial Court (NSW) [2010] HCA 1; (2010) 239 CLR 531 at [12].

[29] [2012] HCA 14; (2012) 246 CLR 92.

[31] The Court of Appeal decision at [70].

[32] The Court of Appeal decision at [71]-[74].

[33] CSR Ltd v Stevenson (1995) 184 LSJS 204 at 205; Softwood Holdings v Stevenson (1996) 188 LSJS 482 at 484-485; Dinko Tuna Farmers Pty Ltd v Markos [2007] SASC 166 at [17] and [19].

[34] The Court of Appeal decision at [75] and reference to Reilly v Devcon [2008] WASCA 84; (2008) 36 WAR 492 at [60].

[35] The Court of Appeal decision at [79].

[36] The Court of Appeal decision at [94].

[37] The Court of Appeal decision at [91].

[38] The Court of Appeal decision at [119].

[39] The Court of Appeal decision at [100].

[40] The Court of Appeal decision at [137].

[41] The Court of Appeal decision at [138].

[42] The Court of Appeal decision at [139]-[140].

[43] See, for example, the Court of Appeal decision at [135].

[44] Respondent's Summary of Argument at [14].

[45] Chief Executive, Attorney-General's Department (Department of Treasury and Finance) v South Australian Salaried Medical Officers Association [2025] SAET 16 at [19]- [23] (Kelly, Rossi and Crawley DPJJ); Chief Executive, Attorney-General's Department v South Australian Salaried Medical Officers Association [2025] SAET 102 at [4]- [13] (Calligeros, Kelly and Rossi DPJJ).

[46] [2019] HCA 28; (2019) 266 CLR 129.

[47] Fox v Percy [2003] HCA 22; (2003) 214 CLR 118 at 126-127 [25] (Gleeson CJ, Gummow and Kirby JJ); Robinson Helicopter Co Inc v McDermott [2016] HCA 22; (2016) 90 ALJR 679 at 686 [43]; [2016] HCA 22; 331 ALR 550 at 558; [2016] HCA 22.

[48] Fox v Percy [2003] HCA 22; (2003) 214 CLR 118 at 128 [29] (Gleeson CJ, Gummow and Kirby JJ); Robinson Helicopter Co Inc v McDermott [2016] HCA 22; (2016) 90 ALJR 679 at 687 [43]; [2016] HCA 22; 331 ALR 550 at 558-559.

[49] Kakavas v Crown Melbourne Ltd [2013] HCA 25; (2013) 250 CLR 392 at 434-435 [144]; [2013] HCA 25; Thorne v Kennedy [2017] HCA 49; (2017) 263 CLR 85 at 104 [42]; [2017] HCA 49.

[50] Warren v Coombes [1979] HCA 9; (1979) 142 CLR 531 at 551 (Gibbs A-CJ, Jacobs and Murphy JJ); [1979] HCA 9; see also Fox v Percy [2003] HCA 22; (2003) 214 CLR 118 at 127 [25].

[51] Coulton v Holcombe (1986) 162 CLR 1; [1986] HCA 33 at [8] (Gibbs CJ, Wilson, Brennan and Dawson JJ); University of Wollongong v Metwally (No2) [1985] HCA 28; (1985) 59 ALJR 481 at p483.

[52] The first Full Bench decision at [102].

[53] The Court of Appeal decision at [15].

[54] In his evidence Inspector David Rynes referred to an inspection of the tow truck involved in the incident, with Mr Kroon, on 16 March 2018.

[57] The first Full Bench decision at [16].

[67] Makita (Australia) Pty Ltd v Sprowles [2001] NSWCA 305; (2001) 52 NSWLR 705, 744 (Heydon JA); referred to with approval in Dasreef Pty Ltd v Hawchar [2011] HCA 21 [37] (French CJ, Gummow, Hayne, Crennan, Kiefel and Bell JJ).

[71] R v Hillier [2007] HCA 13; (2007) 228 CLR 618 at [48]- [49] (Gleeson CJ).

[72] Chamberlin v R (No 2) [1984] HCA 7; (1984) 153 CLR 521 at [535].

[73] See Wood v R [2012] NSWCCA 21 at [56] (McClennan CJ, with whom Latham and Rothman JJ agreed).

[75] MFA v R [2002] HCA 53; (2002) 213 CLR 606 at [56].

[76] The sentencing decision at [27] (Rossi DPJ).

[77] MWJ v R (2005) 222 ALR 436; [2005] HCA 74 at [18] (Gleeson CJ and Heydon J) (MWJ).

[78] R v Birks (1990) 19 NSWLR 677 (Birks); R v Manunta [1989] SASC 1628; (1989) 54 SASR 17.