Prosecution Details

Being a principal that, in the course of trade or business, engaged a contractor to carry out work for it, failed to provide and maintain a working environment in which persons employed or engaged by the contractor to carry out or assist in carrying out the work concerned were not exposed to hazards, so far as was practicable, and in relation to matters over which it had the capacity to exercise control.

BACKGROUND

Centurion Transport Co. Pty Ltd (ACN 008 746 334) (Centurion) is an privately owned Australian company, based in Perth, Western Australia, which offers a broad range of logistical services including short and long distance freight transport services.

Centurion’s premises at the Perth Airport, was a workplace. In 2017, Centurion had a fleet of approximately 209 trucks and had exclusive agreements with a number of contractors who provided an additional fleet of 70 trucks.

All of Centurion’s contractors were provided with training by Centurion and were subject to Centurion policies and procedures. One of the contractors provided various trucks, including the vehicle designated SH006. 

Between 2 September 2017 and 26 October 2017, each of Centurion and the contractors was an employer for the purposes the OSH Act and the contractor was the employer of Driver 1 and the Victim.

Between 2 September 2017 and 26 October 2017 Centurion:

1. had control of Centurion’s premises at 13 Yagine Close, Perth Airport; and
2. had a degree of control over SH006 which included:

(a) requesting the contractor to provide a truck service planned journeys (which planning included specifying delivery destinations, times and dates);

(b) requiring SH006 to have technologies installed for the purposes of compliance with Centurion’s policies; and

(c) requiring SH006 be branded with Centurion’s logo.

Driver 1 and the Victim were almost invariably assigned to drive SH006 in 2017, as what is known as a ‘two up team’, on predominantly long distance journeys within Western Australia.

Two up teams comprise two drivers who share the driving duties on a long haul journey. While one driver operates the vehicle, the other sleeps in the bunk located behind the front driver and passenger seats in the cab of the vehicle.  In driving SH006, Driver 1 and the Victim had the potential to be exposed to the hazard of driving a prime mover subject to fatigue (the fatigue hazard), as would be the case with any other driver of any prime mover.  At times between 2 September 2017 and 26 October 2017, Driver 1 and the Victim were exposed to the fatigue hazard in driving SH006.

On 26 October 2017 at approximately 11:30 pm, Driver 1 was driving SH006 when it veered off the road, overturned and caught fire (Incident). The scene of the Incident was about 87 km from Newman, Western Australia.  The victim was asleep in the bunk situated behind the cab seats at the time of the Incident, and was in the cabin when it was engulfed by fire. The Victim died in the Incident.  Driver 1 sustained only minor injuries in the Incident.

All recorded material from SH006 was destroyed in the fire, and thus there was no video record of the Incident at all. In October 2019, Driver 1 was found guilty after trial of dangerous driving causing death and was sentenced to 3 years and 4 months in prison by the Western Australian District Court.

It was contended at trial that Driver 1 had fallen asleep whilst driving and that this was the root cause of the Incident and, accordingly, the victim’s death. No findings in that regard were specifically made by the Judge in sentencing.

The prosecution case against Centurion does not allege that Centurion caused or contributed to the death of the victim.

THE STATUTORY FRAMEWORK RELATING TO FATIGUE IN WESTERN AUSTRALIA

Centurion was accredited by Main Roads Western Australia, which is the government agency responsible for heavy vehicle transport accreditation.  In Western Australia, heavy vehicle accreditation requirements are prescribed in the Road Traffic (Vehicles) Act 2012 (WA) and Road Traffic (Vehicles) Regulations 2014 (WA).

Accreditation was subject to the development and maintenance of an appropriate ‘Fatigue Management Plan’.  The Fatigue Management Plan was required to be developed and maintained in accordance with the provisions of the:

1. Occupational Safety and Health Regulations 1996 (WA) (OSH Regulations); and
2. Code of Practice for Fatigue Management for Commercial Vehicle Drivers (Code), published by theDepartment of Mines, Industry Regulation and Safety.

Centurion maintained a Fatigue Management Plan in accordance with the requirements of the OSH Regulations and the Code.

THE GUARDIAN SYSTEM

In or about June 2015, a tech company was offering a product known as the ‘Guardian’ system.  Guardian is an example of a fatigue and distraction detection technology. Its primary purpose is to monitor, intervene and record instances of fatigue and distraction within commercial vehicles (i.e. trucks, road trains, etc.).  Guardian is a monitoring system that identifies, in real time, instances of drivers’ potential fatigue or distraction while driving, and provides a mechanism for fatigue mitigation and immediate (i.e. real-time) intervention.

The Guardian hardware relevantly consists of:

1. a processor;
2. an in-cab sensor (i.e. a driver facing camera to monitor the face of the driver) (in-cab camera);
3. infrared pods (to illuminate the drivers face in all lighting conditions);
4. GPS, 3G and WIFI antennae;
5. an audio alarm device; and
6. a vibration inducing motor fitted to the driver’s seat.

The Guardian system is capable of detecting three types of events: fatigue events, distraction events, and field of view (FOV) exceptions. It is designed to detect potential fatigue or distraction events by monitoring the driver’s facial features by way of the in-cab camera, subject to programmed parameters.

The Guardian system will detect a FOV exception when it cannot track the driver’s face (eyes or mouth) for a set period. This may occur for a number of reasons, including but not limited to where the in-cab camera has been accidentally or deliberately moved or covered by the driver, or moved due to the vibration of the vehicle.

ADOPTION OF THE GUARDIAN SYSTEM

After some investigation and negotiations, Centurion decided to trial the Guardian system in 10 of its trucks and entered into a contract with the tech company for that limited purpose.  The trial ran between 4 May 2016 and 20 July 2016, following which Centurion approved the rollout of the Guardian system into its entire fleet (including the contractor fleet).

Centurion commenced its rollout of the Guardian technology in February 2017, and as at 26 October 2017 was still in the process of installing the technology into all of the vehicles comprising the Centurion fleet (including the contractor fleet). Centurion paid for the Guardian technology to be installed in all of its contractors’ vehicles

The Guardian system was installed in SH006 on or about 18 April 2017.

To date, a total of 462 Guardian systems have been installed throughout Centurion’s prime mover fleet (including the contractor fleet) with Centurion having invested in excess of $2.5 million.

CONFIGURATION OF THE GUARDIAN SYSTEM

The Guardian system was programmed to operate for Centurion as follows:

1. A fatigue event would be detected when a driver‘s eyes were closed (or nearly closed) for at least 1.5 seconds when travelling at or above a set speed threshold. When a ‘fatigue’ event was detected:

(a)     the driver would be instantly alerted via an in-cab audible alarm and with a simultaneous vibration of the driver's seat; and

(b)     if the vehicle had 3G connectivity at the time of an event, data of the event (including a short video or still image of the event) would be transmitted to the Seeing Machines Guardian Centre located in the USA where the data would be reviewed to see whether the event could be properly characterised as a fatigue event. If it was characterised as a fatigue event by the Guardian Centre, then Centurion was sent a live notification through 'real time' (being within minutes of the event) alerts via telephone and email;

1. A distraction event would be detected when the driver’s head pose was away from the road ahead for at least 4 seconds when travelling at or above a set speed threshold. When a 'distraction' event was detected, the driver was instantly alerted via an in-cab audible alarm only. There were no live notifications sent to Centurion for distraction events.
2. A FOV exception would be detected when the Guardian system could not track the driver’s face (eyes or mouth) for 10 minutes when travelling at or above a set speed threshold. In accordance with the Seeing Machines recommended settings, there were no in-cab alarms or live notifications sent to Centurion for FOV exceptions. An in-cab alarm or live notification in respect of a FOV exception would not have allowed for immediate rectification of any camera misalignment, as all Guardian system adjustments were required to be carried out by a company in Perth.

RECORD KEEPING AND REPORTING FOR THE GUARDIAN SYSTEM

The records of events detected by the Guardian system were stored on an online database known as the ‘DSSi’ system, controlled and maintained by Seeing Machines.

The following types of reports were available to DSSi users:

1. Daily Activity Reports: these reports summarised the fatigue, distraction and FOV exceptions for the previous 24 hours for each vehicle. The Daily Activity Reports did not provide any trend analysis (i.e. identifying vehicles which had inordinate or ongoing fatigue, distraction and FOV exceptions outside of the previous 24 hours).
2. Daily Diagnostic Reports: these reports summarised any Guardian system faults reported within the previous 24 hours for each vehicle.
3. Weekly Reports: the Weekly Reports for 2 September to 26 October 2017 are no longer available, and therefore it is impossible to know what data was contained in these reports.

As well as being stored on the DSSi system, the Daily Activity Reports and Daily Diagnostic Reports were emailed as pdf attachments to Centurion’s designated employees at 6:00 am each day.

An automated email was also sent at around 6:00-7:00 am once a week (on Thursdays or Fridays) containing a link to access the Weekly Reports via the DSSi portal. Unlike the Daily Activity and Daily Diagnostic Reports, the Weekly Reports were not attached as a pdf to the automated email.

As at 24 October 2017, Centurion was receiving reports in respect of approximately 120 vehicles (of the 159 in which the Guardian system had been installed at that time). The Guardian system was still being rolled out into other vehicles at that time. Reports were being received in respect of the contractor’s fleet, including SH006.

As the number of trucks increased in which the Guardian system was installed, the number of alerts (in respect of fatigue) and reports in respect of fatigue, distraction and FOV exceptions detected increased.

TRAINING AND IMPLEMENTATION OF THE GUARDIAN SYSTEM

As the Guardian technology was rolled out into the Centurion fleet, Centurion provided training materials to all drivers (including contractor drivers) and contractors (including the contractor l) regarding:

1. the installation of;
2. the function of; and
3. the requirement not to interfere with any equipment comprising,
4. the Guardian system.

In addition, Centurion directly instructed all drivers (including contractor drivers) not to interfere with any in-cab monitoring equipment. In order to manage the receipt of live notifications of fatigue events , Centurion:

1.  introduced a night-shift for its health and safety team and hired an additional staff member to fill this position, to allow for 24 hour monitoring and response to email and telephone alerts; and
2. established specific ‘email loops’ for the receipt of email alerts.

OPERATION OF THE GUARDIAN SYSTEM IN SH006

Amongst the reports received by Centurion in the months of September and October 2017 were Daily Activity Reports for the contractor’s fleet indicating that there were FOV exceptions that occurred in vehicle SH006. Each relevant Daily Activity Report showed only the FOV exceptions detected in vehicle SH006 for the previous 24 hours.

As was accepted at the trial of Driver 1 records provided by Seeing Machines showed that Driver 1intentionally moved the in-cab camera in SH006 on 2 September 2017 so that it was misaligned and therefore no longer effectively operating.

Between 2 September and 26 October 2017, 468 FOV exceptions were logged in SH006. The majority of the FOV exceptions were identified as ‘camera misalignment’ events (465 events), with other events comprising ‘sensors covered’ events (2 events) and an ‘operator out of position’ event (1 event).

These FOV exceptions appeared in Daily Activity Reports between 2 September and 26 October 2017. (There are no records available to determine whether these FOV exceptions appeared in the Weekly Reports accessible through the DSSi portal between 2 September and 26 October 2017, as the Weekly Reports are no longer available.).

On the same trips that some of these FOV exceptions were reported, distraction events were also being identified by the Guardian system in SH006. Between 2 September and 26 October 2017, 10 distraction events were detected across 7 days. All of the distraction events were identified as ‘distracted driving’ events. These distraction events were reported in some of the same Daily Activity Reports which reported the occurrence of the FOV exceptions.

As at 26 October 2017, no action had been taken by Centurion in relation to those FOV exceptions.

CONTRAVENTION

Between 2 September and 26 October 2017, Centurion contravened its duties under section 19(1) of the OSH Act in respect of Driver 1 and the Victim in that it was reasonably practicable for Centurion to have taken any, some or all of the following measures, being:

1. to have configured the Guardian system such that when an FOV exception was registered for a vehicle;

(a)     the driver of the vehicle received an instant alert; and/or

(b)     Centurion received a live notification;

2. to have ensured that its representatives tasked with monitoring the operation of the Guardian system had been adequately informed, instructed and/or trained:

(a)     that the Guardian system registered FOV exceptions; and/or

(b)     how to review or respond to the Daily Activity Reports received by Centurion or the DSSi system; and/or

(c)     how to review or respond to FOV exceptions.

At all relevant times, through its officers and employees, Centurion had the capacity to exercise control over each of those matters.

The basis of the liability of Centurion derives from:

1. its failure to adequately monitor the Daily Activity Reports in relation SH006 with regard to FOV exceptions, which may have resulted in the identification of the trend of ongoing FOV exceptions occurring within SH006; and
2.  its failure to configure the Guardian system such that when a FOV exception was registered for a vehicle the driver of the vehicle received an instant alert and/or Centurion received a live notification (noting that this would have constituted a departure from the recommended settings of Seeing Machines).

Identification of the trend of ongoing FOV exceptions occurring within SH006  may have been possible had Centurion:

1. ensured that all Daily Activity Reports were reviewed by the same employee each day, so that any ongoing trend may have been identified as a result of that employee’s memory of previous Daily Activity Reports;
2. ensured that each Daily Activity Report received was cross checked against previous Daily Activity Reports (for example, against the last 7 days) in respect of each vehicle, so that any ongoing trend may have been identified as a result of such cross referencing; or
3. logged all data contained in the Daily Activity Reports into a database, so that any ongoing trend may have been identified through data analysis.

On 23 August 2022 the Offender entered a guilty plea and was convicted.  On 14 December 2022 the Magistrate issued a fine of $40,000 and ordered costs of $18,996.30.