Workcover Authority (Inspector Carmody) v Baulderstone Hornibrook Pty Ltd [2005] NSWIRComm 43 (4 March 2005)

Last Updated: 4 March 2005

NEW SOUTH WALES INDUSTRIAL RELATIONS COMMISSION

CITATION : WorkCover Authority (Inspector Carmody) v Baulderstone Hornibrook Pty Ltd [2005] NSWIRComm 43

FILE NUMBER(S): 7301

HEARING DATE(S): 21/02/2005

DECISION DATE: 04/03/2005

PARTIES:

PROSECUTOR

WorkCover Authority of New South Wales (Inspector Carmody)

DEFENDANT

Baulderstone Hornibrook Pty Ltd

JUDGMENT OF: Marks J

LEGAL REPRESENTATIVES

PROSECUTOR

Ms L M McManus

Solicitor: Julian O'Connell

WorkCover Authority of New South Wales

DEFEDANT

Mr R M Goot AM SC

Solicitor: Jennifer Patterson

Minter Ellison

CASES CITED:

LEGISLATION CITED: Occupational Health and Safety Act 1983 s 15(1)

JUDGMENT:

- 1 -

INDUSTRIAL RELATIONS COMMISSION OF NEW SOUTH WALES

IN COURT SESSION

CORAM: MARKS J

Friday 4 March 2004

Matter No IRC 7301 of 2002

INSPECTOR CARMONDY v BAULDERSTONE HORNIBROOK PTY LTD

Prosecution under section 15(1) of the Occupational Health and Safety Act 1983

JUDGMENT

1 These are proceedings brought by Inspector Carmody of the WorkCover Authority of New South Wales against the defendant, Baulderstone Hornibrook Pty Ltd, alleging a breach of s 15(1) of the Occupational Health and Safety Act 1983 ("the Act"). The defendant pleaded guilty to the charge and this judgment deals with the question of penalty only. The charge originally brought against the defendant was amended. Details of the amended charge and the factual background were contained within a statement of agreed facts which was admitted into evidence. This was in the following terms:

1. At all material times Inspector Martin Carmody of the WorkCover Authority of New South Wales was an inspector duly appointed under Division 4 of Part 3 of the Occupational Health and Safety Act 1983 and is taken to be appointed as an inspector under the Occupational Health and Safety Act 2000 ('2000 Act') by virtue of Clause 11 of Schedule 3 to the 2000 Act, and empowered under section 106 of the 2000 Act as extended by Clause 13 of Schedule 3 to the 2000 Act, to institute proceedings.

2. At all material times, Baulderstone Hornibrook Pty Ltd (ACN 002 625 130) (“the Defendant”) was an employer with its registered office at Level 10, 40 Miller Street, North Sydney in the State of New South Wales, 2060.

3. On 26 August 1998, Baulderstone Hornibrook Engineering Pty Limited ('BHEPL') and Bilfinger & Berger Bauaktiengesellshaft ('BBB') formed an unincorporated joint venture, referred to as the BHBB M5 East Joint Venture ('Joint Venture').

4. BBB and BHEPL were contracted by the Roads and Traffic Authority of New South Wales ('RTA') to undertake the construction of the M5 East Motorway ('Motorway').

5. At all material times, the Defendant was contracted by BBB and BHEPL to supply labour for the construction of the Motorway.

6. At all material times, the Defendant was the principal employer for the construction of the Motorway, including the supply of supervisory staff.

7. The owner of the Motorway was, at all relevant times, and is still the RTA.

8. The construction process of the Motorway involved a number of components, including the construction of concrete parapets (barriers or walls) at the edge of the elevated sections of the Motorway.

9. The construction of the concrete parapets involved the use of formwork and shutters. The shutters, when in place, were supported by a counterweight located on the Motorway.

10. After the construction of the concrete parapets, the formwork and shutters were removed by a crane. One of the cranes used was a Grove 25 Tonne Rough Terrain Crane (Asset No. 110509) ('the Crane').

11. The Crane was owned by the Defendant.

The Crane

12. The Crane was intended to be stationary whilst it was lifting and moving the formwork and shutters.

13. The Crane had at least three principal settings for any given lift. Depending on the conditions and nature of the lift, the Crane driver (“the Operator”) was required to select one of the following settings:

(a) “on outriggers”;

(b) “on rubber stationary”; or

(c) “on rubber crane moving”.

14. The “on outriggers” setting involved the Crane undertaking a lift whilst stationary and supported not by its wheels but by outriggers.

15. The “on rubber stationary” setting involved the Crane undertaking a lift on, and supported by, its rubber tyres, without the support of outriggers and whilst the Crane was in a stationary position with the ability to rotate the load and boom 360 degrees.

16. The “on rubber crane moving” setting involved the Crane undertaking a lift and travelling on its rubber tyres with that load suspended and the outriggers retracted.

17. The Operator was able to change the Crane's computer settings by entering a four digit code (‘Operating Code’) into the Crane’s computer, known as a PAT Load Moment Indicator ('LMI').

18. The LMI is an electro-mechanical sensing system. It assists the Operator to lift items by displaying the maximum load and actual load for the operating code entered and the crane’s configuration. If the Operator has entered an incorrect operating code or other incorrect information about the configuration of the Crane, then the LMI may give the Operator an incorrect assessment about the maximum load which the crane could lift.

19. The LMI is also a rated capacity indicator and rated capacity limiter. Rated capacity (or safe working load) is the maximum load which may be handled by a crane at a given radius and crane set up, without the strength and stability requirements of Australian Standard 1418.5 – 1995 ('A/S 1418') being exceeded ('Rated Capacity').

20. Paragraph 7.5.2.1 of A/S 1418 provides that the rated capacity indicator shall warn the Operator both visually and audibly whenever the load on the crane exceeds 92% + or – 5% of the Rated Capacity.

21. When an overload condition is sensed by the LMI (rated capacity indicator), it will alert the Operator of this by triggering a visual and audible warning. The rated capacity limiter will then lock out the controls to prevent the Operator from lowering the boom, extending the boom, or raising the main or auxiliary hoist cables (ie it will prevent an Operator from increasing the load conditions for that particular lift).

22. The LMI is located in the cabin of the Crane and has a display screen which is located on the dashboard of the Crane.

23. The safety features and operating instructions of the LMI are described in the PAT LOAD MOMENT INDICATOR DS 350GW Operator's Handbook ('Handbook').

24. At the relevant times, the Handbook was located in the cabin of the Crane.

25. The LMI in the Crane had three principal functions:

(a) it limited or prevented certain crane motions or operations;

(b) it enabled the Operator to input instructions into its computer; and

(c) it displayed important data, information and instructions to the Operator.

26. The Handbook, relevantly, states at page 14:

'The correct setting is of utmost importance for the proper function of the system and the crane. Therefore only operators who are thoroughly familiar with crane load capacity charts and the use and operation of the system shall set the operating code switch.'

27. The Handbook further, relevantly, states at page 2:-

The display will only aid the operator when the LMI is properly programmed and the proper load capacity chart and operating code are selected for the crane configuration being utilized. To prevent property damage or serious bodily injury or death to personnel, ensure the LMI is properly programmed before operating the crane'.

28. The Handbook further, relevantly, states at page 29:-

'Failure to properly program the LMI with the correct operating code may result in property damage or serious bodily injury or death to personnel. To assure the crane is properly programmed, verify that the operating code and the load capacity chart match the lifting configuration of the crane'.

29. After ignition of the Crane's engine, the display screen on the LMI lit up. The LMI was designed to detect specific malfunctions of its system. If there was any malfunction of the LMI system detected by the LMI, an error code would immediately be displayed on the LMI screen.

30. If there was no malfunction detected by the LMI, then the LMI would then begin the 'pre set up phase'.

31. During the 'pre set up phase', the LMI would, relevantly, display the following information on its screen:

(a) a reminder to the Operator to follow the operating instructions;

(b) information to the Operator about his general responsibilities in operating the Crane;

(c) a number of interim messages, including:

(i) a request to the Operator whether he needed to review the operator manuals;

(ii) a reminder to the Operator that the LMI was an operational aid which could fail;

(iii) a reminder to the Operator to consult and operate the Crane according to the load capacity charts;

(iv) a reminder to the Operator that he was always responsible for the lift operations;

(v) a reminder to the Operator that if he was in doubt, he should consult the operating manual before commencing to operate the Crane;

(vi) a message inviting the Operator to seek more detailed information about the above topics.

32. The LMI then displayed a series of further messages which were described as the 'Information Run'. The LMI allows an Operator to skip over the messages in the 'Information Run' if the Operator is 'experienced' and to proceed directly to the next procedure in operating the Crane and the LMI, known as the 'programming procedure'.

33. During the 'programming procedure', the LMI displayed a number of messages, including, relevantly:

(a) a question to the Operator asking whether the operating conditions had changed (this message would only appear if the Crane engine is restarted within 2 hours);

(b) a number of questions to the Operator requiring him to confirm use of the existing Operating Code or to enter the applicable Operating Code into the LMI;

(c) text describing briefly the Crane set up selected by the Operating Code and a request to the Operator to confirm that the Operating Code inserted into the LMI was correct;

(d) a request to the Operator to confirm or change the number of falls of rope in the reeving;

(e) if the Operator had inserted an Operating Code for 'on outriggers', a request to confirm that the outriggers were properly positioned; and

(f) a request to the Operator to confirm the crane is level on a firm supported surface.

34. Once the Operator had completed each of the above steps (as well as other steps which are not directly relevant and are therefore not set out), the LMI continuously monitored the load and operating radius as the load was lifted and calculated whether that weight and radius was within the Crane’s Rated Capacity for the particular Operating Code that had been entered.

35. If, according to the information entered by the Operator, the LMI determined that the lift was nearing the Rated Capacity, then an audible and visual alarm would be triggered. The audible alarm was a siren. The visual alarm was a flashing light on the LMI screen. These two signals were designed to indicate to the Operator that the load being lifted by the Crane was nearing the Rated Capacity based on the Operating Code entered into the LMI and that the lift should only continue if it can be undertaken without increases in the load, radius or other action that would take the lift in excess of the Rated Capacity.

36. If the Rated Capacity, on a particular setting of the LMI, was exceeded, the LMI also had a mechanism which would electronically lock out those functions which may aggravate the Crane's conditions. This would prevent the lift from proceeding in a manner which would destabilise the Crane.

37. If the Operator entered an incorrect Operating Code into the LMI, the Crane was not able to detect this. For example, if the Operator entered the Operating Code "on outriggers", but then worked “on rubber”, the Crane did not have any in built sensor mechanism or “intelligence” which could determine that the outriggers were not engaged.

38. As at 12 January 2001, technology which could detect whether the Operator had entered the correct Operating Code, was not readily available for cranes of the capacity of the Crane.

39. The Operator was also required to have regard to Grove Worldwide Load Charts ('Load Charts') which were located in the cab of the Crane. The Load Charts are a tabulated form of the Rated Capacity

Mr Portlock's Background and Training

40. At all material times, the Defendant employed Mr Patrick Portlock as a crane driver, located at the Motorway. Mr Portlock was first employed by the Defendant on 26 February 1986.

41. Mr Portlock had over 30 years experience in the crane driving and rigging industry. At the time of the incident on 12 January 2001, Mr Portlock held an open class mobile crane certificate of competency and a riggers' class one certificate of competency.

42. Mr Portlock stated that he had been given a brief run down on how to operate the Crane by Mr Rodney Leworthy, an employee of the Defendant. Mr Portlock stated that Mr Leworthy gave him a run down on the computer codes to use.

43. Mr Leworthy operated the Crane prior to Mr Portlock. Mr Portlock took over operation of the Crane from Mr Leworthy. Mr Portlock operated the Crane continuously for approximately four months prior to 12 January 2001 and prior to that, on 'odd occasions'..

44. As at 12 January 2001, Mr Leworthy had been working in the construction industry for approximately 24 years. Mr Leworthy was a qualified advanced rigger and qualified advanced scaffolder. Mr Leworthy also held a certificate of competency for a 100 tonne crane. Mr Leworthy held a ticket for a ALIMAK driver and elevated working platforms. Prior to January 2001, Mr Leworthy had worked part time as a crane driver for 5 years, working approximately 30 hours a week. Mr Leworthy had approximately twelve months experience with the Crane. Mr Leworthy had not participated, as an Operator, in lifting shutters at the Site on or prior to 12 January 2001.

45. A person holding a certificate of competency for a 100 tonne crane is permitted to operate mobile cranes which are of lesser lifting capacity..

46. Mr Leworthy stated that in accordance with instructions from his supervisors (who were employed by the Defendant) and consistent with the Defendant’s procedure when Operators are swapping into a new crane, he undertook the following:-

(a) he instructed Mr Portlock on the use of the LMI including how to set up the LMI, having regard to the different codes. Mr Leworthy explained to Mr Portlock where the codes were which Mr Portlock was required to use and how to set them into the LMI system. Mr Leworthy instructed Mr Portlock on the operation of the Crane;

(b) he provided Mr Portlock with the Handbook and Load Charts;

(c) he stayed with Mr Portlock for approximately 30 minutes to an hour to make sure that both he and Mr Portlock were comfortable with the operations of the Crane. During this period Mr Leworthy assessed Mr Portlock's competency whilst Mr Portlock was undertaking general lifts at the Motorway;

(d) he told Mr Portlock that he was only a radio call away if any problems arose with the operation of the LMI or the Crane or any problems that Mr Leworthy could assist him with;

(e) he spoke to other individuals about Mr Portlock's ability in crane driving; and

(f) he reported the results of his assessment of Mr Portlock's ability to operate the Crane to his supervisor, Mr Toone, an employee of the Defendant.

47. Mr Leworthy believed that Mr Portlock was competent in the use of the LMI and operating the Crane.

48. Almost all modern cranes are fitted with a computer system similar to the LMI used in the Crane. Mr Portlock was familiar with the use of alternative, but similar, computers in other cranes.

49. Mr Portlock had experience in operating rough terrain cranes and other mobile cranes which were of bigger capacity than the Crane.

50. Mr Portlock stated that he was reasonably familiar with the Handbook.

51. When asked in an interview, as part of the investigation by WorkCover, whether he felt confident with the operations of the Crane, Mr Portlock replied, “Yes, quite comfortable”.

Mr Hennessy's Background and Experience

52. At the relevant time, Mr Portlock's dogman was Mr Terry Hennessy.

53. Mr Hennessy was employed by the Defendant or one of the Defendant's related bodies corporate from 24 January 2000.

54. Mr Hennessy had worked in the construction industry for 20 years and had 18 years' experience as a rigger/dogman.

55. Mr Portlock regarded Mr Hennessy as a 'very good dogman'.

Previous Lifts

56. Mr Portlock had operated a crane to lift a formwork traveller shutter ('Shutter') which was approximately 12 metres long by 1.8 metres high onto the Motorway when it first arrived on site and had subsequently undertaken the task of stripping formwork and shutters from the Motorway, using the Crane, on 6 to 8 occasions prior to 12 January 2001. Mr Portlock stated that on each occasion the lift was undertaken from the elevated section of the Motorway “on rubber” (ie without using outriggers). Mr Portlock knew there were, relevantly, two operating codes for the LMI, one for 'on outriggers' and one for 'on rubber stationary'. However, Mr Portlock cannot now recall what operating code he entered into the LMI on these previous lifts.

57. Mr Hennessy stated that he and Mr Portlock had undertaken similar lifts from the elevated section of the Motorway “ on rubber” on 6 to 10 previous occasions and had experienced no problem.

58. Mr Hennessy also stated that all shutters are essentially the same size and would be of the same weight.

59. Mr Portlock regarded it as a simple task to strip the formwork out and move it around the column or to the other side wherever it was needed next.

Preparation for the Lift on 12 January 2001

60. At approximately 7.30am on 12 January 2001, Mr Portlock and Mr Hennessy commenced work on an elevated section of the Motorway at Span 3, General Holmes Drive Viaduct, Kyeemagh, which was a section approximately 4 or 5 metres above ground level.

61. Span 3 formed part of a bridge deck over the Cooks River crossing and Kyeemagh Avenue.

62. On the ground level below the elevated section of the Motorway was an area where earthworks were being undertaken.

63. A concrete parapet was being constructed at the outer edge of the elevated section of the bridge deck.

64. Mr Portlock was operating the Crane on the bridge deck of the Motorway and intended to lift and relocate the Shutter.

65. On the morning of 12 January 2001, Mr Portlock and Mr Hennessy, had a discussion with each other about how they intended to proceed with the lift. Mr Portlock and Mr Hennessy determined not to undertake the lift from ground level as they considered it would block access in the earthworks area. Mr Portlock and Mr Hennessy decided to undertake the lift from the roadway.

66. In preparation for the lift, on 12 January 2001, the Crane was parked beside the edge of the concrete parapet, where the Shutter being relocated was attached.

67. At this parked location on the Motorway there was a vertical incline of 6 degrees and a cross fall of 3 degrees.

68. Mr Portlock stated that he had consulted the Load Charts to perform previous lifts and that he did not consult the Load Charts on 12 January 2001. On 12 January 2001, Mr Portlock determined that because he had conducted lifts of shutters on at least six previous occasions, he did not need to consult the Load Charts.

69. The Defendant did not advise Mr Portlock of the weight of the Shutter for the lift.

70. Mr Portlock stated the LMI displayed the weight of 2.8 tonne on 12 January 2001. Mr Hennessy stated that he thought that the Shutter weighed around 2.8 to 3 tonne.

71. The Shutter weighed 4.560 tonne (4,560 kilograms) (excluding the lifting chain and hook which was attached to the Shutter at the time of the incident on 12 January 2001).

The Incident on 12 January 2001

72. At approximately 8.00am on 12 January 2001, Mr Portlock commenced operating the Crane.

73. Prior to commencing the lift, Mr Portlock had entered the "on outriggers" Operating Code (0001) into the LMI. Mr Portlock had also confirmed the relevant information (set out in paragraphs 31 and 33 above) into the LMI prior to commencing the lift.

74. Mr Portlock positioned the Crane parallel to the counterweight supporting the Shutter. Mr Portlock had set up the Crane for the lift to be conducted over the left side of the Crane to minimise the radius of the lift. The physical configuration of the Crane was “on rubber”.

75. Mr Hennessy was standing in the earthworks area, below the Crane. Mr Hennessy was in communication with Mr Portlock by two way radio at the time of the lift.

76. Mr Hennessy hooked the Shutter onto the Crane with a set of 10 millimetre lifting chains.

77. Mr Juan Carlos Lacobelli and Mr Tomislav Jurac (both of whom were employed by the Defendant) assisted Mr Hennessy in removing the bolts fastening the Shutter to the parapet wall. Once the bolts were removed, Mr Portlock received a signal from Mr Hennessy to lower the Shutter towards the earthworks area and commenced lowering.

78. Mr Hennessy gave a signal to Mr Portlock to stop. Mr Hennessy, Mr Lacobelli and Mr Jurac adjusted the sections of the Shutter using the chain blocks, that were part of the Shutter, while the load was suspended approximately 1 to 2 metres below the parapet.

79. Mr Hennessy, Mr Lacobelli and Mr Jurac then moved away from the Shutter.

80. The Crane took the weight of the Shutter.

81. Mr Portlock stated that he then felt the Crane lurch backwards twice. He stated that he took his foot off the slew brake and applied the park brake. The Crane then tipped.

82. The Shutter fell onto the earthworks area below.

83. Mr Portlock tried to jump clear but was unable to and his leg became trapped.

84. The Defendant called emergency services, who on arrival took control of the rescue. Mr Portlock was freed from the Crane at approximately 6.15pm on the evening of 12 January 2001.

85. Once freed, Mr Portlock was taken immediately to hospital. As a result of the incident, it was necessary to amputate Mr Portlock's right leg below the knee.

Operating Codes of “on-rubber stationary” and “on outriggers”

86. Depending on the size of the tyres of the crane being used, there were different Load Charts which needed to be consulted. The Crane which Mr Portlock was operating had 20.5 x 25 inch tyres.

87. According to the Load Charts for the Crane with 20.5 x 25 tyres, the rated capacity of the Crane:

(a) in the “on rubber stationary” setting;

(b) for a jib length of 11.78 metres; and

(c) a radius of lift of 6.1 metres,

(which was the configuration of the Crane on 12 January 2001) was in the vicinity of 3,605 kilograms.

88. According to the Load Charts, the rated capacity of the Crane:

(a) in the “on outriggers” setting;

(b) for a jib length of 11.78 metres; and

(c) a radius lift of 6.1 metres,

was in the vicinity of 10,630 kilograms.

89. At the time that the lift was undertaken by Mr Portlock on 12 January 2001, the physical configuration of the Crane was “on rubber” however the setting was “on outriggers”. The outriggers were not engaged but were retracted.

90. As a result, on 12 January 2001, the Crane was being operated "on rubber", which was completely inconsistent with the Operating Code for the “on outrigger” setting which had been entered into the LMI by Mr Portlock.

91. No explanation has been provided by Mr Portlock as to why he entered the "on outriggers" Operating Code, when in fact the outriggers were not engaged and he was proposing to do the lift on rubber tyres.

92. When asked why the outriggers were not in use on 12 January 2001, Mr Portlock stated: “The chart that we use for on-rubber had suggested that I was quite within radius to do the task”.

93. Mr Portlock stated that he and Mr Hennessy had originally been asked by Joe Smylie, the foreman, to undertake the lift without using the outriggers on the bridge deck of the Motorway, as the outriggers would crack the concrete.

94. Mr Hennessy stated he was told by Mr Smylie that the “bosses” preferred that the outriggers not be used as they were worried about the T sections of the concrete surface being punched or cracked.

95. Mr Danny Parkinson, the project engineer for the Motorway, stated that about 6 or 7 weeks prior to the incident on 12 January 2001, he had instructed Mr Smylie, that the Crane could be used on the bridge deck of the Motorway and that when operated off rubber tyres it would not damage the bridge deck. He told Mr Smylie that when the Crane was to be used using outriggers on the bridge deck of the Motorway, the outriggers needed to be set up on the centre line of the girders. He stated that he did not tell persons involved that they could not use outriggers.

96. In assessing the differences between lifting on outriggers and rubber tyres when he gave instructions to Mr Smylie, Mr Parkinson stated that he considered amongst other things “the possibility that an accident could occur if the crane was allowed to operate without limitations and an assessment of the structural implications of heavy lifting off the bridge deck.”

97. Mr Smylie stated that he relayed Mr Parkinson’s instructions to all crane drivers approximately 6 or 7 weeks before, and not on the day of the incident on 12 January 2001.

98. Mr Smylie also stated that there was a fear that too many cranes setting up on the deck of the Motorway and putting their outriggers in the wrong position could puncture the deck and cause an accident. If the Crane “on outriggers” was to be used on the bridge deck of the Motorway, then a position had to be measured out for the Operator.

99. No position was measured out for the Operator on the day. Mr Portlock had not requested that a position be measured out.

Investigation

100. On 12 January 2001 at about 10.30am Inspector Vince Castro and Inspector Jim Allison attended the Motorway. Inspector Castro prepared a Factual Inspection Report dated 17 January 2001.

101. The Defendant conducted an investigation and prepared an Incident Report (“Incident Report”) following the incident to try to determine the cause of the accident. The Incident Report was provided to the Prosecutor.

102. The Defendant fully co-operated with WorkCover during its investigations following the incident.

Maintenance of the Crane

103. Prior to the incident, the Defendant conducted regular safety checks of the Crane. These checks were conducted by the Operator almost on a daily basis.

104. After each safety check, the Operator completed a report (“safety report”) to confirm that the Crane was operating safely and whether any maintenance work was required. Safety reports for the Crane were completed and signed off up to and including 10 January 2001. For the four months prior to 12 January 2001, Mr Portlock regularly completed safety reports for the Crane.

105. The safety reports were kept by the Defendant, and where required, maintenance work was undertaken by the Defendant if a potential safety risk was disclosed by the report.

106. The park brake of the Crane was independently checked after the incident and found to be fully functional.

Method Statements and Job Safety Analysis

107. Method statements and job safety analysis worksheets ('JSAs') in relation to lifting and relocating the Shutter were prepared by the Defendant prior to the lift on 12 January 2001.

108. The two JSAs prepared prior to 12 January 2001 were dated 4 October 2000 and 6 November 2000. The method statement prepared prior to 12 January 2001 is dated 12 October 2000. Annexed to this Statement of Facts is the JSA dated 4 October 2000 and 6 November 2000.

109. The JSAs were initiated by James Forbes, a site engineer employed by the Defendant, and reviewed by Danny Parkinson.

110. Both Mr Portlock and Mr Hennessy stated that they did not have a work method statement to do the job on 12 January 2001. Mr Hennessy signed the JSA dated 4 October 2000 on 9 October 2000. Mr Smylie stated that Mr Portlock was present at the meetings in which the JSA for the relocation of the Shutters was discussed. Mr Portlock did not sign any of the JSAs.

111. The Shutter weight was not included in the JSAs dated 4 October or 6 November 2000.

112. The process by which a JSA is developed is that a meeting is convened with all of the relevant persons who will be involved in a particular task. The participants at that meeting are expected to highlight the dangers involved in a particular task and collectively develop a method statement which sets out the nature of the task and ways in which the task can be performed safely.

113. Prior to commencing work on the Motorway, Mr Portlock and all other employees engaged to work on the site (whether or not they were employees of the Defendant) were required to attend a site specific safety induction program.

114. At the relevant time, all employees of the Defendant were required to participate in regular site safety meetings. These meetings included "Tool Box Talks" and other meetings where JSAs and work method statements were reviewed and discussed within specific project teams.

Offences

115. The Defendant contravened section 15 of the Occupational Health and Safety Act 1983 in that on 12 January 2001 at Span 3 of the Elevated Roadway (located at approximately chainage 12450) of the M5 East Motorway, General Holmes Drive Viaduct, Kyeemagh, in the State of New South Wales, the Defendant being an employer failed to ensure the health, safety and welfare of all of its employees, in particular Patrick Portlock. The particulars of this offence are as set out below.

116. The Defendant failed to provide or maintain systems of work that were safe and without risks to health in relation to the relocation of a formwork traveller shutter by use of a Grove 25 tonne Rough Terrain Crane, (“the Crane”) in that the Defendant:

(a) failed to provide adequate information and instruction in relation to the weight of the Shutter;

(b) failed to ensure that the Crane’s LMI was properly programmed, in that the proper operating code for the load capacity chart appropriate for the Crane’s configuration being utilized was selected by the Operator when undertaking a lift; and

(c) failed to prevent Mr Portlock lifting the shutter on the bridge deck in rubber tyre mode rather than outrigger mode where the Rated Capacity in rubber tyre mode was less than the weight of the shutter.

As a result of the Defendant’s failures Mr Portlock was placed at risk of injury.

2 There was also tendered into evidence on behalf of the prosecutor a series of photographs and a factual inspection report.

3 The defendant tendered into evidence an affidavit of Francis Patrick Doyle, an executive director of construction for the defendant, which contained information concerning the defendant's activities, its commitment to occupational health and safety matters, its occupational health and safety systems, including training, its knowledge about the incident and the steps taken by it in response.

4 I should add for completeness that a certificate of prior convictions shows that the defendant was convicted on 28 July 1992 of an offence under s 16(1) of the Act and fined $2,000 in the Chief Industrial Magistrates' Court and was convicted of an offence against the same section, also in that court, on 27 November 2003 and fined $15,000.

5 It is clear from the statement of agreed facts that two matters were the immediate cause of this incident. The first was that Mr Portlock was under the impression that the shutter weighed between 2.8 and 3 tonne, whereas it in fact weighed 4.56 tonnes. The second is that Mr Portlock configured the computer as though the crane was being operated on outriggers whereas in fact it was being operated on its wheels.

6 There is no explanation given by Mr Portlock as to either of these matters. I infer from the evidence put before the Court that he declined to give the defendant any such information after the incident on the advice of his solicitor. I was informed that representatives of WorkCover did not specifically ask Mr Portlock these questions when carrying out their investigations. I draw no adverse inference of any kind from this, as there are a number of possible explanations as to why such questions were not formally asked of Mr Portlock.

7 However, the evidence indicates that Mr Portlock was a longstanding employee who had been trained in and operated cranes of this kind. There were no indications that Mr Portlock was anything other than an experienced, qualified crane operator. However, as is made clear from the statement of agreed facts, Mr Portlock was not given specific advice on this occasion about the weight of the shutter which needed to be lifted. As against this, he had had experience in lifting similar objects and had undertaken such lifts without incident. Of course, if Mr Portlock had correctly configured the computer so that it reflected the fact that the crane was being operated on its wheels, the crane could not have undertaken the lift because the weight would have exceeded the specifications as contained in the computer programme.

8 The first task in fixing penalty is to assess the objective seriousness of the offence. As I have previously indicated, the evidence is to the effect that Mr Portlock had been adequately trained and instructed in the operation of the crane and had worked continuously with this and other cranes over a long period of time. It has often been stated that the obligations created by the Act are directed to ensure the safety of employees who, from time to time, may become inattentive, blasé or even foolish in carrying out their duties. Following the incident the defendant reinforced the need to consolidate training previously given and to remind managers of a need to reinforce safety matters. Following the incident the defendant created a task force for the purpose of improving safety and developed a number of guidelines in consultation with crane operators which were to be utilised as part of ongoing training and in reinforcing a commitment to safety. There have been increased and improved site safety assessments, interactive training workshops, health surveillance processes and the like. These are indications of some of the steps which the defendant ought to have taken prior to the incident in order to discharge its obligations under the Act, the failure to do so being, presumably, the motivating factor in entering a plea of guilty.

9 The defendant, through its counsel Mr R Goot SC, properly conceded that objectively the offence was a serious one. I agree, and shall proceed to deal with the matter on that basis. I shall also take into account the need to ensure general deterrence within the community and the need for specific deterrence with respect to the activities of this defendant, although that need has been minimised by the defendant's ongoing commitment to occupational health and safety matters as is well demonstrated, I am satisfied, by the evidence of Mr Doyle.

10 There are a number of mitigating factors which I am entitled to take into account in favour of the defendant. As was conceded by the Prosecutor, the defendant pleaded guilty at an early stage in the proceedings, there was full cooperation with the WorkCover Authority in its investigations and the defendant expressed contrition for what had occurred. There was evidence that it supported and assisted in Mr Portlock's rehabilitation beyond its statutory obligations.

11 In accordance with well-established principles I propose to apply a discount of 25 per cent for the early plea of guilty and 10 percent for the other factors to which I have referred, making a total discount of 35 per cent.

12 This leaves for consideration the fixing of an appropriate penalty. By reason of the earlier convictions the maximum applicable penalty is $825,000. I have already indicated that objectively viewed, the offence is a serious one, and I have referred to the need for both general and, to a lesser extent, specific deterrence. Whilst it is obvious that attempting to lift a load which was beyond the capacity of the crane as configured would foreseeably create a dangerous situation, the lack of explanation by Mr Portlock as to why he failed to correctly configure the computer makes it difficult to assess with exactness what steps the defendant should have taken to remove this readily foreseeable risk. On the one hand, this may have been an aberration on the part of Mr Portlock; on the other hand, he may have systematically failed to properly configure the computer for some little time. There is no evidence of the former and it would be, in my opinion, unsafe and unfair to the defendant to proceed on the latter basis. I shall proceed on the basis that the defendant's culpability should be measured by reference to the failure to have in place some system to ensure that Mr Portlock was aware of the weight of the shutter and the failure to put in place some system to reinforce the need to ensure that the computer was properly configured.

13 Having regard to these matters in particular, and to all of the circumstances to which I have referred, I fix a penalty of $150,000 to which a 35 per cent discount should be allowed, leaving a net penalty of $97,500.

14 The defendant did not resist an application for a moiety and an order for costs.

15 ORDERS

I make the following orders:

1. The defendant is found guilty and convicted of the charge in the amended order.

2. The defendant is fined the sum of $97,500 with a moiety to the prosecutor.

3. The defendant is to pay the costs of the prosecutor assessed by the court in default of agreement.

4. Liberty to apply with respect to costs.

LAST UPDATED: 04/03/2005