Inspector Hall v Gillespies Cranes Nominees Pty Ltd [2011] NSWIRComm 169 (16 December 2011)

Last Updated: 9 February 2012

Industrial Court of New South Wales

Case Title:	Inspector Hall v Gillespies Cranes Nominees Pty Ltd
Medium Neutral Citation:	[2011] NSWIRComm 169
Hearing Date(s):	23 September 2011
Decision Date:	16 December 2011
Jurisdiction:	Industrial Court of NSW
Before:	Kavanagh J
Decision:	The Court makes the following orders: 1. In Matter No IRC1057 of 2010, I find the defendant guilty of the offence as charged. 2. The defendant is fined in the sum of $50,000 with a moiety to WorkCover Authority of New South Wales. 3. In Matter No IRC1064 of 2010, I find the defendant guilty of the offence as charged. 4. The defendant is fined in the sum of $50,000 with a moiety to WorkCover Authority of New South Wales. 5. The defendant is to pay the costs of the prosecutor. There has been no agreement between the parties as to the quantification of the costs. I will hear the parties on this issue in the event no agreement can be reached. Leave to re-list at short notice.
Catchwords:	OCCUPATIONAL HEALTH AND SAFETY - breach of s 8(1) and s 8(2) of the Occupational Health and Safety Act 2000 by defendant corporation - placement then collapse of a 250 tonne crane with outriggers through a concrete slab - defendant allowed third party to direct its employees in placement of crane and outriggers - failure to ensure independent check on placement of outriggers on back up propping system - hazard and risk known - offence foreseeable in circumstances - major contribution of defendant corporation to awareness within industry of safety standards - small element of deterrence in penalty - mitigation - totality of criminality given charges under s 8(1) and s 8(2) arise from same factual matter - penalties
Legislation Cited:	Crimes (Sentencing Procedure) Act 1999 Occupational Health and Safety Act 2000
Cases Cited:	Cahill v State of NSW (Department of Community Services) (No 4) [2008] NSWIRComm 201 Capral Aluminium Ltd v WorkCover Authority of New South Wales [2000] NSWIRComm 71; (2000) 49 NSWLR 610 Carrington Slipways Pty Ltd v Callaghan (1985) 11 IR 467 Inspector Morgenthal v Houghton [2010] NSWIRComm 192 Kirk v Industrial Relations Commission of New South Wales [2010] HCA 1; 239 CLR 531 Lawrenson Diecasting Pty Limited v WorkCover Authority of New South Wales (Inspector James Swee Ch'ng) [1999] NSWIRComm 343; (1999) 90 IR 464 Markarian v R [2005] HCA 25; (2005) 215 ALR 213; (2005) 228 CLR 357 Morrison v Powercoal Pty Limited [2003] NSWIRComm 416; (2003) 130 IR 364 R v Thomson; R v Houlton (2000) 49 NSWLR 383 R v Thomson; R v Houlton [2000] NSWCCA 309; (2000) 49 NSWLR 383; 115 ACrimR 104 R v Tiddy (1969) SASR 575 Signanto v The Queen [1998] HCA 74; (1998) 194 CLR 656 WorkCover Authority of New South Wales (Inspector Ch'ng) v ACI Operations Pty Limited, unreported decision of Schmidt J dated 25 February 1994
Texts Cited:
Category:	Principal judgment
Parties:	Inspector Craig Hall (Prosecutor) Gillespies Cranes Nominees Pty Ltd (Defendant)
Representation
- Counsel:	M P Cahill of counsel (Prosecutor) M Easton of counsel (Defendant)
- Solicitors:	DLA Phillips Fox, Lawyers (Prosecutor) Nescis Lawyers (Defendant)
File number(s):	IRC1057 of 2010IRC1064 of 2010
Publication Restriction:

JUDGMENT

1. This prosecution is brought by Inspector Craig Hall of the WorkCover Authority of New South Wales ("the prosecutor") against Gillespies Cranes Nominees Pty Ltd ("the defendant" or "Gillespies") under ss 8(1) and 8(2) of the Occupational Health and Safety Act 2000 ("the Act"), by way of Applications for Order.

2. In Matter No. IRC 1064 of 2010, it is alleged the defendant, Gillespies Cranes Nominees Pty Ltd, on 25 and 26 September 2008 at 5 Gladstone Road, Castle Hill in the State of New South Wales, contravened s 8(1) of the Act in that it failed to:

By its acts or omissions as particularised below, to ensure the health, safety and welfare at work of all its employees, and in particular Mark Seagrott, David Kennedy, John Pearce and Paul Pritchard (the employees), on 25 and 26 September 2008, at or around a construction site at 5 Gladstone Road, Castle Hill, in the State of New South Wales ( the site ), contrary to section 8(1) of the Act.

In particular:

1 The defendant was at all material times an employer;

2 The risk was the risk of the employees being struck or crushed by the crane, its associated lifting components, its load (the concrete panels) it was lifting, the slabs on which it was positioned or adjacent slabs and concrete panels collapsing;

3 The defendant failed to ensure that the outriggers of the 250 tonne mobile crane ( the crane ) being used at the site were positioned in places and in a manner so that the concrete slabs on which the crane was placed could support the crane's weight and would not collapse;

4 The defendant failed to obtain or require confirmation from the principal contractor (Denham Constructions), after positioning the crane outriggers but before commencing a lift, that the outriggers had in fact been placed in the position required by Denham Constructions;

5 The defendant failed to engage or require an independent surveyor or independent checker who would be required before the crane being operated to ensure that the outriggers of the crane were placed in the correct position so that the concrete slab on which it was placed did not collapse;

6 The defendant failed to undertake by itself or by an independent person, after positioning the crane outriggers but before commencing a lift, any checking of the alignment between the outriggers and the under-props so that the outriggers were placed in a correct position such that the concrete slab on which they were placed could support the weight of the crane and would not collapse;

7 The defendant failed to ensure that there was a clear and effective system of communication between it and its head contractor (R&D Panelform) and principal contractor (Denham Constructions) so as to ensure that the outriggers for the crane were placed in the correct position so that the concrete slab on which they were placed was able to support its weight and would not collapse;

8 The defendant failed to ensure that employees were excluded from the area where the concrete slab and crane had collapsed so that in the event of a further collapse of the concrete slab and crane, those people were not at risk;

9 As a result of the defendant's failures Mark Seagrott, David Kennedy, John Pearce and Paul Pritchard were exposed to risk;

3. In Matter No. 1057 of 2010, it is alleged the defendant, Gillespies Cranes Nominees Pty Ltd, on 25 and 26 September 2008 at 5 Gladstone Road, Castle Hill in the State of New South Wales, contravened s 8(2) of the Act in that it failed to:

By its acts or omissions as particularised below, to ensure that people (other than employees of the defendant), and in particular Arthur Nehme, Charlie Nehme, Joshua Cooper, Carlos Alvarez and Scott De Gail ( the R&D employees ), Gareth Goronwy, Paul Sinclair and Andrew Gleeson ( the Denham employees ) and members of the public, were not exposed to risks to their health or safety arising from the conduct of the defendant's undertaking while the R&D employees, the Denham employees and members of the public were at the defendant's place of work on 25 and 26 September 2008, at or around a construction site at 5 Gladstone Road Castle Hill, in the State of New South Wales ( the site ), contrary to section 8(2) of the Act.

In particular:

1 The defendant was at all material times an employer;

2 The defendant's place of work was at the site, the adjoining area between the site and neighbouring businesses and the neighbouring businesses in so far as it or they was or were affected by work being done at the site;

3 The defendant's undertaking at the site was the supply of a crane, a crane driver and two dogmen to the site to perform work of erecting concrete panels at the site;

4 The people who were at risk and who were at the defendant's place of work were the R&D employees, the Denham employees and members of the public;

5 The risk was the risk of people being struck or crushed by the crane, its associated lifting components, its load (the concrete panels) it was lifting, the slabs on which it was positioned or adjacent slabs and concrete panels collapsing;

6 The defendant failed to ensure that the outriggers of the 250 tonne mobile crane ( the crane ) being used at the site were positioned in places and in a manner so that the concrete slabs on which the crane was placed could support the crane's weight and would not collapse;

7 The defendant failed to obtain or require confirmation from the principal contractor (Denham Constructions), after positioning the crane outriggers but before commencing a lift, that the outriggers had in fact been placed in the position required by Denham Constructions;

8 The defendant failed to engage or require an independent surveyor or independent checker who would be required before the crane being operated to ensure that the outriggers of the crane were placed in the correct position so that the concrete slab on which it was placed did not collapse;

9 The defendant failed to undertake by itself or by an independent person, after positioning the crane outriggers but before commencing a lift, any checking of the alignment between the outriggers and the under-props so that the outriggers were placed in a correct position such that the concrete slab on which they were placed could support the weight of the crane and would not collapse;

10 The defendant failed to ensure that there was a clear and effective system of communication between it and its head contractor (R&D Panelform) and principal contractor (Denham Constructions) so as to ensure that the outriggers for the crane were placed in the correct position so that the concrete slab on which they were placed was able to support its weight and would not collapse;

11 As a result of the defendant's failures the R&D employees, the Denham employees and members of the public were exposed to risk;

4. The defendant pleaded guilty to the charges.

5. Mr M Cahill, of counsel, appeared for the prosecution and Mr M Easton, of counsel, appeared for the defendant. The prosecution relied upon two Applications for Order and an agreed Statement of Facts with annexures which included a Factual Inspection Report, dated 5 November 2008, prepared by Inspector Bronwen Halcroft; 12 colour photographs taken by Inspector Bronwen Halcroft on 26 September 2008; 7 A4 colour photographs with hand written annotations including page 1 annotation 'Received via internet - Printed at WCA office'; 42 colour photographs taken between 26 September 2008 to 10 October 2008; colour photograph taken by mobile telephone with handwritten annotation 'received 1/10/08 in person from John Gillespie'; Gillespies Crane Services Lift Plan prepared for R&D Panelform dated 19 September 2008; Gillespies Crane Services Safety and Environmental Management Plan for 5 Gladstone Road, Castle Hill; R&D Panelform Limited Partnership Safe Work Method Statement for Gladstone Road Castle Hill dated 21 May 2008; Denham Constructions Safe Work Method Statement dated July 2008; Henry & Hymas Panel Layout Plan; RMD Australia back propping plan prepared 8 May 2008; Henry & Hymas Site Inspection Report dated 16 July 2008; Hand drawn layout plan of 5 Gladstone Road Castle Hill prepared by Gareth Goronwy; three transparent survey overlays prepared by Scott Deveridge, Project Surveyors; Prior Conviction Record.

6. The defendant relied upon an affidavit of John William Gillespie, sworn 22 September 2011, with annexures marked "A" to "P". A bundle of documents, being references going to character, was also tendered.

7. There was an Agreed Statement of Facts which relevantly reads:

Background

3 At all material times, Gillespies Crane Nominees Pty Ltd [ACN 001 802 133] ( Gillespies Cranes ):

3.1 was a duly incorporated company;

3.2 undertook the business of hiring out approximately 19 mobile cranes including operators and dogmen and associated drivers;

3.3 was engaged by R&D Panelform Limited Partnership to provide a crane and a crane crew for work to be undertaken at the site;

3.4 utilised the site as a place of work; and

3.5 was an employer of approximately 50 to 60 employees, and in particular employed Mark Seagrott (crane driver), David Kennedy (dogman), John Pearce (dogman) Paul Pritchard (workshop manager) and Graham Ackerman (site supervisor) to perform work at the site in the course of its undertaking.

4 At all material times, R&D Panelform (NSW) Pty Ltd [ACN 122 483 390] and Denis Vella, being partners of R&D Panelform Limited Partnership (ABN 89 686 480 409) ( R&D ):

4.1 undertook the business of forming, pouring and erecting concrete panels for industrial and commercial business sites;

4.2 were engaged by Denham to form and erect concrete panels at the site;

4.3 utilised the site as a place of work;

4.4 subcontracted Gillespies Cranes to supply a crane and a crane crew to lift concrete panels at the site; and

4.5 employed approximately 25 employees, and in particular employed Arthur Nehme (erection supervisor), Charlie Nehme (labourer), Josh Cooper (labourer), Carlos Alvarez (labourer) and Scott De Gail (labourer) to perform work at the site in the course of the undertaking.

5 At all material times, Denham Constructions Pty Ltd [ACN 086 503 568] ( Denham ):

5.1 was a duly incorporated company;

5.2 undertook the business of building and construction, including the role of principal contractor at the site;

5.3 Subcontracted R&D to form and erect concrete panels at the site;

5.4 Utilised the site as a place of work; and

5.5 Employed approximately 45 employees, including about 6 - 7 employees on site on the date of the incident, and in particular employed Paul Sinclair (site manager), Gareth Goronwy (site foreman) and Andrew Gleeson (site foreman).

Crane accident

6 On Friday, 26 September 2008, at approximately 10.08am, crane operator Mark Seagrott, an employee of Gillespies Cranes, attempted to lift a pre-cast concrete panel from the suspended first floor concrete slab of a construction site at the premises, using a 250 tonne Liebherr All Terrain mobile crane ( crane ).

7 The crane had been positioned in that particular set-up on 25 September. Lifts from eight previous set-up positions had been carried out in the previous days without incident.

8 In the course of the attempted lift, the crane's rear right outrigger punched through the first floor concrete slab, creating a hole in the slab and causing the crane to tip and the front of the crane to be raised clear of the ground. The crane's boom came to rest across an erected panel and it remained in that position for approximately one hour.

9 The boom was extended across a number of small business premises situated next to the site. These adjoining businesses, located in 8 units managed by Beaumont Strata Management Pty Ltd, became the subject of prohibition notices which resulted in them closing until the overhanging boom was removed on 3 October 2008.

10 The 10 tonne panel and associated lifting components including the spreader bar fell from the crane and over the side of the suspended slab landing in an area between the construction site and the neighbouring businesses ( Adjoining Area ).

11 The Adjoining Area and the neighbouring businesses were a place of work of Gillespies Cranes, R&D and Denham insofar as it/they was/were affected by work being done at the site.

12 Mr Seagrott was able to run away at the time the crane tilted, and sustained only minor injuries, in the form of a twisted ankle.

13 Approximately one hour later the concrete slab further gave way and the rear of the crane fell through the first floor slab. No injuries were sustained as a result of the second collapse except for Charlie Nehme hurting his leg as he ran away from the second collapse.

Risk

14 Although no one was seriously injured, the risk of serious injury both on-site and to persons in the Adjoining Area and neighbouring businesses, was extremely high. The risk was present from the time the crane was set-up on 25 September 2008.

15 In addition to the crane driver, the employees in the immediate vicinity of the crane at the time of the first and/or second collapse include:

15.1 David Kennedy (dogman) of Gillespies Cranes, who tripped as he ran away from the first collapse, and who was about 30m away at the time of the second collapse;

15.2 John Pearce (dogman) of Gillespies Cranes who was spinning the panel that was being lifted by the crane when it dropped, and was able to run away;

15.3 Paul Pritchard (workshop manager) of Gillespies Cranes who attended the site after the first collapse and got very close to the crane to hit the emergency stop button before the second collapse;

15.4 Arthur Nehme (erection supervisor) of R&D, who was supervising at the time of the first collapse;

15.5 Charlie Nehme (labourer) of R&D who was underneath the slab on which the crane was situated at the time of the first collapse, and who also ran away from the second collapse, suffering a minor injury to his leg;

15.6 Joshua Cooper (labourer) of R&D who was about 15m from the crane at the time of the first collapse;

15.7 Carlos Alvarez (labourer) of R&D who was about 5m from the crane at the time of the first collapse; and

15.8 Scott De Gail (labourer) of R&D who was about 6m from the crane at the time of the first collapse.

16 The Denham employees on site included Gareth Goronwy (site foreman), Paul Sinclair (site manager) and Andrew Gleeson (site foreman). Mr Goronwy, Mr Sinclair and Mr Gleeson were about 100 - 150m away from the crane at the time of the first collapse, but then proceeded to go below the slab to see where the outrigger had punched through the slab. Mr Goronwy and Mr Sinclair had passed by the area in which the crane was situated before the collapse. The hazard posed by the crane collapsing extended beyond the crane's exclusion zone and created a risk to Denham employees at the site.

Background

17 Denham was the principal contractor at the site. Denham's work involved the design and construction of 65 industrial, retail bulk-goods and high-tech units as well as the construction of associated car parking and landscaping. The project comprised a ground floor and a first floor, with each floor also having a mezzanine level. The project mainly involved the use of reinforced concrete slabs and tilt up pre-cast concrete panel construction. The contract period commenced in December 2007 and was essentially completed in June 2009. The contract was valued at approximately $27.7 million and the work was substantially completed by contractors.

18 Denham in turn contracted with R&D. The contract between Denham and R&D required R&D to erect pre-poured concrete panels at the construction site. Denham had previously worked with R&D on about four or five other projects.

19 Gillespies Cranes were engaged by R&D to hire a crane and a crane crew for work to be undertaken at the site in respect of the placement and erection of concrete panels around the site. R&D selected Gillespies Cranes due to a long established working arrangement between them both.

20 H&H Consulting Engineers were engaged by Denham as the structural engineers for the project and were responsible for the construction drawings, the review of the crane travel path and the review and design of the under-slab propping for crane positions.

21 Because the crane was to be set up on a suspended concrete slab, the engineering plan for the work devised by H&H for Denham required that the slab be propped beneath with moveable columns known as 'megashors'. The plan for the work was that the outriggers of the crane would be placed directly above the points where the megashors propped the slab. This was to be achieved by marking the places where the four crane outriggers were to be positioned on the upper surface of the slab, by a co-ordinated drawing plan. The marks, described her as 'pin points', were circles in yellow paint around a central concrete pin known as a 'mickey pin' which marked the precise point above the megashor.

22 The positioning of the crane was vitally important because the concrete slab on which the crane was to be set up could not of itself support the weight of the crane and so it was essential that under-slab propping or megashors be positioned directly underneath where the outriggers of the crane were to be placed to support the crane's weight.

23 The propping system for the crane outriggers was confirmed by the engineers responsible for the slab, Australian Prestressing Services Pty Ltd.

24 The tolerance for the accuracy of the outrigger placements over the points above the megashors in the engineering plan was 10mm.

Crane set-ups

25 On or about 17 July 2008, R&D began the tilt-up panel work at the site. The work involved a crane being placed at 12 different set-ups around the site.

26 Between 17 to 21 July 2008 (visit one), set-ups 1, 2 and 3 were completed.

27 On 7 and 8 August 2008 (visit two) set-up 5 was completed.

28 On Monday, 22 September 2008 the Gillespies 250 tonne Liebherr mobile crane attended the site to complete lifts for visit three. Work continued during the week at set-ups 4, 6, 7 and 8.

29 The system of work for set-ups involved the following:

29.1 R&D was responsible for building the concrete panels and lifting them up by crane;

29.2 Denham was responsible for under-propping the slab with megashors, for marking the top of the slab with 'pin points' for the crane set-up corresponding to the placement of the megashors, and then informing R&D that the set-up was ready for the crane to move into position, including advising R&D of the positions that had been marked for the crane outrigger placements;

29.3 R&D was responsible for showing Gillespies Cranes employees the pin point marks and for supervising Gillespies Cranes employees to make sure that the crane was correctly set up on the 'pin point' marks.

Set up 9

30 On Thursday, 25 September 2008, the crane moved into set-up 9.

31 Before it was moved into position it was discovered by Denham by that it could not be placed in the particular position that had been identified and marked in July 2008 because of the existence of an electrical pit and plumbing pipes underneath the slab where the under-slab props were to be put in place. A new position was then found for the props and new markings were put in place, by Denham, by painting them in yellow paint, on the top of the slab as to where the outriggers were to be positioned.

32 On 25 September 2008 Gareth Goronwy (site foreman for Denham) marked the new pin-points, and had these approved by Paul Sinclair (site manager for Denham, with overall responsibility for the site).

33 Paul Sinclair approved both the marks and the under-props or megashors by reference to a drawing that showed the coordinates for the set-up.

34 Gareth Goronwy then showed Arthur Nehme (erection supervisor for R&D) pin-points for the set-up. It is not clear whether Gareth Goronwy showed Arthur Nehme the old or the new pin-points.

35 Arthur Nehme of R&D then supervised Gillespies Cranes employees in setting up on the pin-points. Arthur told the Gillespie's employees that the new points were necessary to prevent an obstruction to the crane slewing. As part of this process, Arthur notified Gareth Goronwy of Denham that some rio bars were in the way of the set-up, and offered to cut them. Gareth Goronwy, without consulting with Paul Sinclair, agreed to this and R&D cut the bars using one of their labourers on site.

36 Gillespies Cranes operators positioned the outriggers on the points that they were directed to position them by Arthur Nehme. The process of positioning the outriggers involves first extending the outriggers over the marks, then checking that they are accurately over the marks, then lowering the outriggers completely onto the marks.

37 Having lowered the outriggers Mark Seagrott the crane operator of Gillespies Cranes then walked around the crane to check that the outriggers were positioned on the marks that Arthur Nehme of R&D had directed that they be placed and satisfied himself that they were so placed.

38 Seagrott then carried out his usual pre-lift checks and set the crane's counterweights.

39 After the crane had been set-up, it completed approximately 10 to 15 lifts on set-up 9, without incident.

40 The crane remained in its position at set-up 9 overnight on 25-26 September, with full 96-tonnes of counterweights fitted. It was not moved, operated or interfered with in any way following work ceasing on 25 September 2008.

41 Work continued at set-up 9 on Friday, 26 September 2008 until the incident occurred at about 10.08am.

42 Although Arthur Nehme (R&D) considered that he was setting up on the pin-points indicated by Gareth Goronwy (Denham), and Mr Goronwy said that he pointed out the new markings (not the old markings), it appears that the crane was placed with the outriggers positioned on points which were not supported by megashors.

43 The cause of the crane breaking through the slab both at the time of the first collapse and the second collapse was that the crane outriggers were not positioned over the megashors and the slab was not strong enough to support the weight of the outriggers without a megashor being positioned directly below the outrigger.

Failures

44 Denham did not have any system for checking that the crane had been set up on the correct pin-points. Denham left this to R&D.

45 Neither Gillespies nor R&D had any system for checking that the pin-points on which the crane were set up were actually aligned with the under-props, the megashors. Once the crane was on the marks, R&D assumed that it was 'good to go'. Gillespies employees relied on advice from R&D as to the marks on which the outriggers should be positioned and Gillespies employees accepted the assurance by Arthur Nehme of R&D that the marks on which the outriggers were placed were correctly positioned.

46 Following the incident, R&D and Gillespies Cranes did not operate cranes on site until a surveyor had marked the pins, and R&D and Denham checked the positioning of the props and crane using grid-line documents.

47 Prior to the incident, there was no system for an engineer or surveyor to routinely check the set-ups. Although this had occurred for set-ups 1 and 2, it did not occur for set up 9.

48 Gillespies, R&D and Denham failed to ensure that there was a clear and effective system of communication for ensuring that the crane had been placed on the correct marks and that the crane was aligned to the under-props. Denham relied on verbal instruction and gestures (pointing) to communicate the correct marks to R&D. Denham did not double-check that the crane had been set up on the correct marks, and R&D and Gillespies Crane did not seek that verification before lifting.

49 The markings for set-up 9 were not clear as a result of the following factors:

49.1 Yellow paint was used for both the old and new marks;

49.2 The new marks were 1200mm east and 400mm south of the old marks;

49.3 The initial marks were not removed or eliminated by Denham, but rather 'scribbled' over using the same yellow paint (which may have in fact filled or highlighted the initial marks);

49.4 The revised markings for the rear outrigger positions were different to the markings for the revised front outrigger positions, and the rear left outrigger mark did not appear to have been marked with yellow paint; and

49.5 R&D had discarded various refuse and building materials directly on top of one of the revised outrigger marks prior to the crane's arrival for set-up.

50 Between the time of the first and second collapse:

50.1 Denham did not prevent its employees from initially 'going underneath' the slab; and

50.2 Neither Denham or Gillespies Cranes prevented Paul Pritchard of Gillespies Cranes from approaching within a close vicinity of the crane to hit the emergency stop button.

51 R&D conducted a toolbox talk with the Gillespies Cranes employees on the day of the incident. R&D provided supervision to Gillespies Cranes' employees.

52 R&D had a safe work method statement that was prepared for the site and dated 21 May 2008 ( SWMS ). The SWMS had been approved by Denham. Page 3 of the SWMS contained an 'erection method statement' which included the following steps:

'12. Check propping under suspended slab and engineers certification for crane loads on slab.

13. Erection and crane travel area is to be barricaded off to provide a 20m zone, restricted to erection personal (sic) only. All traffic to be directed with adequate signage/barriers and traffic control/ controller.

14. Crane outriggers to be positioned over positions marked by surveyor as set out in relation to propping.'

53 Page 8 of the SWMS contained a hazard identification assessment for crane set up and panel erection which included control measures for lifting slabs including:

Crane to be set up in positions as per the casting layout drawing.

All instruction as per Panel Supervisor [meaning Arthur Nehme of R&D].

Mono props are securely positioned ready to receive beam load.

Site to be secure, traffic and pedestrian control to be as per the builders Traffic Control Management Plan.

No access is to be permitted under panels during the lifting process.

54 The SWMS was lacking in detail as to how and when steps such as checking the under-props was to occur.

55 Denis Vella was both a limited partner of R&D and the sole director of R&D Panelform (NSW) Pty Ltd being the general partner of R&D.

56 Mr Vella was involved in the design of the system of work at the site, and signed off on the Safe Work Method Statement.

57 Denis Vella was responsible for communication with Denham via Adam Kearns, Project Manager for Denham.

58 Mr Vella knew about set-up 9 being moved about a week before the incident but did not make any enquiries regarding the revised set-up. Mr Vella was responsible for supervising the forming of concrete panels at the site, however, it was Mr Arthur Nehme of R&D who was always responsible for supervising the lift sequence of the panels.

Relevant Principles

8. In considering penalty, I take guidance from the reasoning of the High Court in Markarian v R [2005] HCA 25; (2005) 215 ALR 213; (2005) 228 CLR 357 and their Honours' view that the task of sentencing must acknowledge the effect of the applicable legislative provisions (in this case ss 8(1) and 8(2) of the Occupational Health and Safety Act 2000 with ss 21A, 22, 23, 34 of the Crimes (Sentencing Procedure) Act 1999). The Court, using the "instinctive synthesis" approach, would include an assessment of the objective and individual subjective factors, with the appropriate weight given to each factor, and could (but not should) give a degree of deduction in penalty to some element in the consideration, in such circumstances as where it better serves the interests of transparency, which element should be narrowly confined (for example, the utilitarian value of the plea).

9. Their Honours recognised the "instinctive synthesis" approach to sentencing gives rise to an inevitable tension between the need for transparency and adequate reasoning on the one hand, and the need to avoid a mathematical approach pursuant to which the sentencing court engages in a "staged sentencing process" starting at the maximum penalty and then making deductions from it without adequately assessing (even in a provisional way) the sentence called for by the objective facts (see Markarian at [32]).

10. Spigelman CJ in R v Thomson; R v Houlton [2000] NSWCCA 309; (2000) 49 NSWLR 383; 115 ACrimR 104, correctly, given the consideration in Markarian , recognised this "instinctive synthesis" approach to sentencing saying at [57]:

The instinctive synthesis approach is the correct general approach to sentencing. This does not, however, necessarily mean that there is no element which can be taken out and treated separately, although such elements ought be few in number and narrowly confined. As long as they are such, their separate treatment will not compromise the intuitive or instinctive character of the sentencing process considered as a whole.

Proper regard is to be had to express legislative provisions and to the relevant statutory regime ( Markarian at [27]).

11. The object of the Act is to protect employees from risk to safety, health and welfare whilst compelling attention to occupational health and safety issues so that persons are not exposed to risk to their health and safety at the workplace. In Inspector Morgenthal v Houghton [2010] NSWIRComm 192, the Court observed at [9]:

In R v Way [2004] NSWCCA 131; (2004) 60 NSWLR 168 it was emphasised that the provisions of the Crimes (Sentencing Procedure) Act ...are not to be construed as representing "a departure from settled principles of sentencing practice, or an abandonment of the discretion that is essential to any system calling for individualised justice". As was said at [59]:

'[i]t is clear that the legislative policy ... so far as that can be discerned from the legislation itself, was not to create a straight jacket for judges ... but rather [was] intended to provide "further guidance and structure to judicial discretion.'

12. Of relevance particularly is the effect of s 21A of the Crimes (Sentencing Procedure) Act 1999. Section 21A sets out factors that the court is to take into account in any sentencing hearing and states, inter alia :

. . .

(2) Aggravating factors

. . .

(d) the offender has a record of previous convictions,

...

(g) the injury, emotional harm, loss or damage caused by the offence was substantial,

. . .

(3) Mitigating factors

. . .

(e) the offender does not have any record (or an significant record) of previous convictions,

...

(g) the offender is unlikely to re-offend,

...

(k) a plea of guilty by the offender (as provided by section 22)

(l) the degree of pre-trial disclosure by the defence (as provided by section 22A),

(m) assistance by the offender to law enforcement authorities (as provided by section 23)

. . .

Consideration

13. In a consideration as to penalty, the Court assesses the objective seriousness of the offence or, as has been said "the nature and quality of the offence". The Full Bench commented in Lawrenson Diecasting Pty Limited v WorkCover Authority of New South Wales (Inspector James Swee Ch'ng) [1999] NSWIRComm 343; (1999) 90 IR 464 ad idem with the view expressed in Markarian (at 474):

... in our view, it is important to reiterate that the primary factor to be considered when a judicial officer is determining the appropriate sentence to impose is the objective seriousness of the offence charged. In case of prosecutions under the OH&S Act, this proposition has often been expressed by saying that the "true measure of penalty lies in the nature and quality of the offence"...

And in Morrison v Powercoal Pty Limited [2003] NSWIRComm 416 ; (2003) 130 IR 364 at [32]:

In assessing the gravity of the offence the focus, therefore, must be on the risk and, viewing it objectively, the seriousness of the act or omission that gave rise to the risk, In other words, the consequence of an accident will not, of itself dictate the seriousness of the offence or the amount of penalty. However, the occurrence of death or serious injury may well manifest the degree of seriousness of the risk to health and safety to which persons may have been subjected ...

14. Denham Constructions Pty Ltd (Denham Constructions) was the principal contractor retained to design and construct 65 industrial, retail "bulk goods" and high-tech units, together with the construction of associated car park and landscape works at the site. Denham Constructions contracted R & D Limited Partnership (R&D) to form and erect pre-cast concrete panels at the site. R&D contracted the defendant corporation to provide the crane and crane crew required to lift and place the pre-cast concrete panels into place at the site.

15. The business at the relevant time employed approximately 50 - 60 employees, including about 3 employees who were directly involved in the incident, Mark Seagrott the crane driver; David Kennedy the dogman; and John Pearce the dogman . In addition, John Ackerman, undertook Site Supervision on behalf of the defendant and Paul Pearce was the defendant's workshop manager. It had approximately 19 working mobile cranes and hired out these cranes together with crane crews. The defendant had been contracted to provide a 250 tonne Liebherr mobile crane and crew to undertake the lifting and placement of tilt-up wall panels at the site.

16. The under-slab propping system designed to support the weight of the crane on the concrete slab was a pair of Megashors, or backing-props, to be erected under the point on the suspended slab on which each of the four outriggers of the crane were to be placed. The tolerance, in relation to the placement of the crane's outriggers over the centre of the under-slab backing props, or Megashors, was 10mm.

17. It was central to the design of the propping system that each outrigger be placed directly over the pair of props as placed or erected under the slab.

18. The risk was the risk of people being struck or crushed by the crane, its lifting components, the load (the concrete panels) being lifted at the time of failure (if any), the slab on which the crane was positioned - as the slab failed - or the collapse of adjacent slabs and/or previously erected pre-cast concrete panels impacted upon by the failure of the slab and/or the crane following slab failure. The gravity of the potential risk to safety flowing from a breach is relevant as a measure of gravity of the breach and the culpability of the defendant ( Lawrenson Diecasting ).

19. Denham determined it was necessary for the planned location of the crane to be moved because there was an electrical pit and plumbing on the underside of the ground floor slab so the prop would not hold the weight of a crane's outriggers. Mr Arthur Nehme, the site foreman for R&D, and Mr Vella of R&D, the controlling mind of R&D, (both partners of the partnership) were both aware that a change of location for the crane was to occur. The change in set-up location was not marked out on an amended casting layout drawing or Panel lay-out plan for the site.

20. Mr Goronwy, the Denham Construction's site foreman, marked the top at the point of the slab aligned with each of the under-slab backing props at the new location. Mr Goronwy then had the markings for set up approved by Paul Sinclair, Denham Construction's site supervisor. Once Mr Goronwy had marked-up the outrigger locations he showed those markings to Mr Nehme of R&D who had sub-contracted the use of the crane. However, the slab was now marked with two sets of points (or mickey pins) and yellow markings: one set of 4 point-pins and yellow paint corresponded with the initial, planned set-up point and then a second set of 4 point-pins and yellow paint was put on the slabs which corresponded to the "new" set-up point.

21. After Mr Goronwy (of Denham) showed Mr Nehme (of R&D) the new set-up points/markings Mr Nehme showed the crane crew the new markings and then he oversaw the movement of the crane into place and the lowering of each of its four outriggers onto the slab. The points onto which each outrigger was lowered was neither directly aligned with, nor supported by, a set of under-slab backing props.

22. Further, neither Denham Constructions, nor R&D Panelform, nor Gillespies checked to confirm the proper placing of the outriggers on the props.

23. On 26 September 2008, at about 10 am EST, the right rear outrigger of the crane punched through the suspended slab whilst the crane was undertaking the lifting and placement of a pre-cast concrete panel. Approximately one hour later, a second slab collapse occurred , when the panel that the boom was resting on collapsed , and the rear of the crane continued collapsing through the first floor slab until the rear of the crane came to rest on the ground.

24. It is common ground that no-one was killed or sustained serious injury as a consequence of the collapses. The hazard posed by the crane collapsing extended beyond the crane exclusion zone which was in place at the time and created a risk which encompassed a number of employees from the various corporations who were on site at the time of the first collapse.

25. When the defendant corporation moved to this site the slab was marked with paint showing the path where the crane could be driven and where the crane was to be set up. Mr Graham Ackerman, Gillespie's Site Supervisor, attended the site prior to commencing work to investigate the site conditions. Other than the suspended slab, he did not report anything unusual or out of the ordinary for this site. The defendant provided R&D with the crane dimensions and the maximum loading of the crane and outriggers to be used during the lifting process.

26. The travel path for the crane and outrigger positions were marked out in advance so that when the Gillespies crane crew arrived on site, both the travel path and the outrigger positions were identified without any setting out required from Gillespie's employees. Usually Gillespies use large outrigger steel support pads under the outriggers so that if there is a slight discrepancy between the propping underneath and the outriggers on top, the support pads give greater support to the weight of the crane with outriggers. The defendants were instructed by R&D not to use large outrigger support pads.

27. The defendants were working under the Principal Contractor's Safe Work Method Statement and its men were inducted on site by the Principal Contractor, Denhams. The defendants therefore relied upon third parties to ensure the marks were set out in the correct position and were instructed by R&D and Denhams to set up the crane in the particular position.

28. R&D had identified in its SWMS the use of a surveyor to confirm the safety at each set-up point before lifting commenced which required an assurance that the crane's outriggers , as positioned on top of the suspended slab, were aligned with the backing props. A surveyor did not check the location of the crane prior to the commencement of the lift.

29. The defendant corporation was aware of the risk and of the need for relevant controls to be put in place. The defendant's SWMS nominated an "[e]ngineer's certificate be sighted by the crane crew prior to lifting". No engineering inspection took place and no certificate was sighted prior to the commencement of the lift.

30. The defendant relied upon verbal communications and gestures from Mr Nehme of R&D for the purpose of communicating the location of set-up marks as placed on the slab and made no provision for independent verification of the location of the crane, above the under-slab backing props, before lifting commenced.

31. The principle of foreseeability is a factor in determining the objective seriousness of an offence. This was considered and affirmed by the Full Bench decision in Capral Aluminium Ltd v WorkCover Authority of New South Wales [2000] NSWIRComm 71; (2000) 49 NSWLR 610 . On the issue of foreseeability, the Full Bench in Capral stated at [82]:

The existence of a reasonably foreseeable risk of injury will necessarily result in the offence being more serious in nature. However, the absence of foreseeability does not necessarily render the offence as being nominal or not serious. In this regard the relevant approach is that set out in the judgment of Wright J, President, in Ferguson v Nelmac Pty Ltd (at 209-210) in these terms:

... reliance on 'hindsight' must be seen in an appropriate perspective in terms of culpability. It is a relevant consideration but the very terms of s 15 impose an obligation on an employer which is not confined to the taking of precautions only when there are warnings or signals of danger or when experience indicates that a risk to safety has arisen and requires remedy.

In the circumstances of this case there was a foreseeable element to the breach which makes it more serious. The defendant accepts there was a foreseeable element to the offence. It did not supervise either the placement of the crane nor require the independent check on the alignment of the outriggers with the props. This admission is commendable.

32. The availability of simple and straightforward steps to remedy the defects in the system is also relevant to the consideration of the objective seriousness of the offence ( WorkCover Authority of New South Wales (Inspector Ch'ng) v ACI Operations Pty Limited, unreported decision of Schmidt J dated 25 February 1994). There were known steps that could have been taken which, either singly or in combination, would have eliminated or reduced the risk. These steps have now been implemented by the defendant. Such activity after the incident is indicative of the fact each amendment to the system of work was readily available and practicable.

33. The principles of general and specific deterrence are also relevant in sentencing considerations. The approach to be taken has been considered in some detail in Capral at [71] - [77]. Each approach to deterrence in the sentencing process is encapsulated in the following passage from the Full Bench at [74]:

... both aspects of deterrence are matters which should normally be given weight of some substance in the sentencing process; and although there may be exceptional cases (see, for example, Page v Walco Hoist Rentals Pty Ltd (No 2) [2000] NSWIRComm 39 at [40] - [43]) we would expect such cases to be very rare, and where the relevant circumstances were held by the sentencing judge to be established, the judge must indicate with some precision the circumstances which had led to the exceptional course being adopted.

34. The defendant's business in its present form has been in operation since 1979 but has operated in the construction industry since the 1950's. It has an unblemished industrial record. Further, since the incident it uses large support pads over underneath propping; ensures engineers and surveyors inspect a site for each and every set up and its required documentation confirming that the set ups are correct and its job sheets now specifically address the type of surface the crane is to be set upon.

35. Its new internal checklist was provided by Mr Gillespie, the director and the controlling mind of the corporation, to the Crane Industry Association of NSW as a suggestion to be implemented throughout the industry. It was refined, developed and distributed throughout the industry. The defendant corporation adopted the Crane Industry Association of NSW checklist on procedures for cranes on suspended surfaces. Its SWMS is now more comprehensive including specific reference to working on a suspended slab as follows:

Working on suspended structure checklist to be completed prior to commencing works. Crew to confirm set up is correct with Principal Contractor. If permit not supplied, abort operation until a full assessment of the proposed new set up location or travel route has been carried out. Where Engineers Report to be modified, amended or replacement report must be obtained prior to commencement of work. Toolbox talk to denote consultation between relevant parties.

36. The defendant no longer relies upon third parties to ensure a safe set up of its cranes. Nonetheless the defendant continues to operate in the construction industry so there shall be a small element of specific deterrence in the Court's consideration of penalty.

37. As to general deterrence, Mr John Gillespie is the Managing Director of Gillespies Cranes Nominees Pty Ltd. He is also President of the Crane Industry Council of Australia (CICA) and has held that position for a total of approximately 13 years. On behalf of CICA he signed the World Crane & Transport Alliance in 2009. The signatories to this Alliance foster efforts throughout the industry worldwide to promote safety and harmonise standards worldwide. In the last twelve months he has been involved with the International Crane Technical Liaison Group working toward the harmonisation of world standards for mobile cranes so that safety and crane standards are international rather than locally based to enable cranes to meet criteria to work around the world. The members of both organisations are attempting to amalgamate. He has represented CICA on the Industry Plant and Consultative Committee. This is a tripartite arrangement between the Master Builders Association of New South Wales, WorkCover Authority and the Construction Forestry Mining Energy Union (CFMEU). As President of CICA, Mr Gillespie has, for the past twelve months, been on the executive committee of the Construction Industry Safety Forum which is a New South Wales based organisation which was set up by the New South Wales construction industry, CFMEU and Workcover.

38. Two important initiatives that Mr Gillespie has been instrumental in driving and developing is the Traineeship scheme and the annual safety inspection for cranes as part of the registration renewal. In such a circumstance Mr Gillespie, as the controlling mind of the corporation, has personally contributed his energies and experience to ensure there is awareness within the crane industry of the need for rigorous safety procedures. He has openly demonstrated to the industry the refinements which have been required in the operation of his own safety conscious business and corporation. In such a circumstance, I accept Mr Gillespie has himself reminded the crane industry of the need for rigorous review of its SWMS and the need to ensure they are implemented, especially where there are major construction sites which require the co-ordination of SWMS and the co-operation between corporations on site in their implementation. In this case, the corporate defendant, under his guidance, allowed a third party, the head contractor, to override the necessity for an independent engineering check which variation to the defendant's SWMS had the most serious of consequences. However, I accept the corporation has, with Mr Gillespie, been the voice of safety in the crane industry over many years and has instigated much of the industry's safety procedures. There will be but a small element of general deterrence in the Court's consideration as to penalty.

39. Pursuant to s 21A(3)(k) of the Crimes (Sentencing Procedure) Act the defendant is entitled to have its pleas of guilty taken into account in the assessment of the sentences to be imposed on it by the Court as a factor in mitigation of penalty. The defendant is entitled to a discount on each penalty flowing from the utilitarian benefit of each plea in accordance with the principles outlined in the guideline judgment of the Court of Criminal Appeal in R v Thomson; R v Houlton (2000) 49 NSWLR 383. The discount in respect of the utilitarian value of the plea is offered in recognition of the practical advantages to the administration of justice. The prosecutor concedes that there are no factors which would operate to disentitle the defendant to the full value of the utilitarian benefit of its pleas. There shall be a 25 per cent discount for the utilitarian value of the plea.

40. In Cahill v State of NSW (Department of Community Services) (No 4) [2008] NSWIRComm 201 at para 62 Boland P said:

A simple expression of contrition or remorse by a representative of a corporate offender, no matter how senior the representative, is not enough to enable the Court to find that the offender is remorseful: As Cummins J said in DPP v Esso Australia Pty Ltd [2001] VSC 263; (2001) 124 A Crim R 200, "personal expressions of remorse need to be translated into reality". See also see Regina v Heip Tan Nguyen [2004] NSWCCA 438 per Bell J ( Hidden and James JJ agreeing) at [21]. There must be 'evidence that the offender has accepted responsibility for its actions and also that the offender has acknowledged any injury, loss or damage caused by its actions or that it has made reparation for such injury, loss or damage (or both)'.

In this regard, s 21A(3)(i) of the CSPA provides that "remorse" may be taken into account as a mitigating fact if and only if:

(i) the offender has provided evidence that he or she has accepted responsibility for his or her actions, and

(ii) the offender has acknowledged any injury, loss or damage caused by his or her actions or made reparation for such injury, loss or damage (or both).

41. I accept there has been the appropriate expression of remorse through Mr Gillespie and he has made reparation through his activities within the industry councils. He has accepted responsibility.

42. The defendant co-operated in the investigation by WorkCover of the subject incident. The defendant has co-operated with the prosecutor in relation to the preparation of the related prosecutions.

43. The defendant is not previously recorded and the prosecutor acknowledges that the Court may extend to the defendant the leniency normally extended to "first offenders".

44. The absence of any breach of occupational health and safety standards and obligations over such an extended period is taken by the Court to be representative of a strong commitment to occupational health and safety, particularly, in light of the dangerous nature of the construction industry. The high level of involvement, locally, nationally and internationally, in the development of the occupational health and safety initiatives is commended and the defendant corporation has the benefit of its prior good industrial citizenship in mitigation.

45. The duty owed under s 8(1) of the Act and the duty owed under s 8(2) of the Act, whilst co-extensive, are duties owed to different classes of person.

46. Their observations of the "plurality" in Kirk v Industrial Relations Commission of New South Wales [2010] HCA 1; 239 CLR 531 regarding the nature of the obligation created by s 15(1) and s 16(1) of the 1983 Act , it is submitted that the overlapping duties imposed by s 8(1) and s 8(2) of the 2000 Act, respectively, are a duty "to ensure" and may be properly characterised as a duty to guarantee or secure health, safety and welfare: Carrington Slipways Pty Ltd v Callaghan (1985) 11 IR 467 at 470; the duty is higher than the common law duty to take reasonable care; the duty is non-delegable in nature .

47. However, a simple comparison of the particulars as between the s 8(1) and the s 8(2) charge brought discloses an overlap of criminality. As a matter of principle, it is accepted by the prosecutor that it would be proper for the overlap in criminality to be reflected in an adjustment by the Court of the "total penalty" to be imposed on the defendant.

48. It is common ground that the facts and circumstances giving rise to the charges laid against the defendant corporation presently before the Court also gave rise to two charges, in similar terms, alleging contraventions of s 8(1) and s 8(2) of the Act being laid against R & D Panelform (NSW) Pty Ltd and Denis Charles Vella - each as partners in R & D Panelform Limited Partnership - and Denham Constructions, the principal contractor.

49. The principles of "parity in sentencing" apply in respect of a "class of offenders" across the range of a single offence and recognise the need for consistency in the sentencing of offenders charged with the same offence ( R v Tiddy (1969) SASR 575 at 577) :

Where other things are equal persons concerned in the same crime should receive the same punishment, and where other things are not equal a due discrimination should be made.

[Emphasis added.]

50. While the principles of parity have no application as between the defendant presently before the Court for sentence and/or Denham Constructions and/or R & D Panelform (NSW) Pty Ltd and Vella, nonetheless there is a need for consistency in sentencing as between offenders charged with differing offences under the Act where offences arise out of the same factual matrix. There will be differences in sentencing outcomes which will reflect the differences in the circumstances between offenders and differing roles of defendants and differing levels of criminality must also be taken into account and properly reflected in the respective penalties to be imposed: Signanto v The Queen [1998] HCA 74; (1998) 194 CLR 656 at 670.

51. In a consideration of the contribution to the risk by the principal and other contractors it is noted Denham Constructions also contributed to the risk when it assumed control of the erection of the backing props and the marking up of each set up location. R &D contributed to the risk when it assumed responsibility for provision of immediate, on site supervision in relation to the location of the crane at each set up point.

52. The defendant corporation, however, determined the work method to be followed by its own employees, including a requirement that its crane driver sight an engineer's certificate before commencing lifting; and the defendant failed to ensure that provision was complied with or some other alternative, verifiable method was used to confirm, at each set-up, the alignment of the crane outriggers and the under-slab back propping which the defendant erected.

53. While there are subjective elements allowing mitigation of penalty, nonetheless the seriousness of the offence must be reflected in penalty. I do not accept Gillespies level of penalty in the circumstances is equivalent to that carried by the other defendants who have faced charges arising from this incident.

54. In Matter No. IRC 1064 of 2010, the charge under s 8(1) of the Act, I find the defendant guilty. The defendant is fined in the sum of $80,000.

55. In Matter No. IRC 1057 of 2010, the charge under s 8(2) of the Act, I find the defendant guilty. The defendant is fined in the sum of $80,000.

56. In the application of the principle of totality, the fine for the offences shall be $100,000.

57. Therefore, for each offence, the defendant shall be fined $50,000.

Orders

58. The Court makes the following orders:

1. In Matter No IRC1057 of 2010, I find the defendant guilty of the offence as charged.

2. The defendant is fined in the sum of $50,000 with a moiety to WorkCover Authority of New South Wales.

3. In Matter No IRC1064 of 2010, I find the defendant guilty of the offence as charged.

4. The defendant is fined in the sum of $50,000 with a moiety to WorkCover Authority of New South Wales.

5. The defendant is to pay the costs of the prosecutor. There has been no agreement between the parties as to the quantification of the costs. I will hear the parties on this issue in the event no agreement can be reached. Leave to re-list at short notice.