In March 2018, Lee entered a crush zone between the front of the tilt tray and the back of the cab of the tow truck when he was crushed by the returning tray. Lee died at the scene.

Lee was a trainee and had been on the job for 8 days.

The tow truck involved in the incident had a unique design whereby the headboard and toolboxes were fixed to the back of the cab and did not move with the tilt tray. This left a crush zone, and risk of being crushed, when the tray was retracted. To access the toolbox, workers needed to enter the crush zone, turn 90° so their back was to the returning tray.

The SafeWork SA investigation identified that the incident could, and should, have been avoided had engineering controls, such as pressure sensors, been in place that would have prevented the tray from moving whilst a person or object was within the crush zone. Additionally, toolboxes could have been located to another area of the vehicle to remove the need to enter the crush zone at all.

Whilst instruction and signage were in place to warn of danger, SafeWork SA successfully argued that this was not enough to adequately reduce the risk, and engineering safety controls were required.

The Court looked at many aspects of Dial-a-Tow’s health and safety duties.

The judgement highlighted an ‘employer’s’ duty to protect against human errors including inadvertence, inattention, haste and even foolish disregard of personal safety.

The Court determined reasonably practicable measures could and should have been implemented, including ‘administrative controls’ in the form of training and supervision and ‘engineering controls’ in the form of a two-stage process of returning the tow truck’s tray, relocation of toolboxes and installation of a pressure sensitive device.

Risk assessments must be conducted, and adequate controls put in place to eliminate or reduce the risk. Placing stickers warning of injury is not enough. Businesses and workers need to look at what is reasonably practicable in each situation and not opt for low level administrative controls to fix the issue”, said SafeWork SA Regulator Martyn Campbell. “It is also critical that workers are consulted about the controls to introduced to their work.”

His Honour Deputy President Magistrate Cole held that Dial-A-Tow “knew that the tow truck as delivered had a crush zone, and that persons entering the crush zone while the tray was returning were put at risk. It relied on signage and administrative instructions to discharge its duty. In my view that was not an adequate discharge of its duty.”

A date for the sentencing Dial-A-Tow is to be set.