Did Messrs Ford, Jones and Fetherston know that panel five was under weight during the period from the lowering of the panel on the third lift until the incident?
247A critical factual issue was whether Mr Ford knew panel five was under weight after the third lift. Just what the expression 'knew' meant, in that context, was not the subject of close examination by the parties either in a definitional sense or by reference to relevant legal principle or theory which may have assisted in the discernment of Mr Ford's state of mind during the charge period.
248A consideration of the cases for the parties overall, however, leads comfortably to the conclusion that the issue ventilated was whether Mr Ford was fully cognisant or aware that the panel was under weight. In short, the debate concerned whether Mr Ford was seized of information, retained in his mind and memory, that the panel was under weight on and from the third lift.
249Mr Agius contended, for GTE, that the Court could have "no confidence" that Mr Ford was "conscious that the panel was under weight during the 15 to 20 minutes that the panel was in place before the workers came onto it to remove the two rails just before the incident". He also submitted the more likely explanation was that Mr Ford (and Mr Jones) were not conscious the panel was under weight (and, in oral submissions, that the Court "could" conclude Mr Ford did not know).
250Senior counsel approached this question on two somewhat mutually exclusive bases concerning observations made (or failed to have been made) by Mr Ford (and a discrete issue concerning Mr Fetherston).
251In the first, he contended that Mr Ford's admission that he did not observe the panel after the third lift must result in a finding that he did not know the panel was under weight.
252In contradistinction, the second contention proceeded upon the basis that Mr Ford's evidence that he did not observe the panel (save for a momentary glance shortly before the labourers mounted the panel) was a fabrication or concoction. Under this thesis, the fact that Mr Ford observed the panel without preventing the supervisors or the labourers from being on the panel was, again, conducive to the conclusion that he did not know the panel was under weight. (A similar submission was addressed with respect to Mr Fetherston to the effect that, if Mr Ford knew the panel was under weight then Mr Fetherston (who admitted to not being told the panel was under weight) "should have known or been told" of that fact.)
253In written submissions, Mr Hodgkinson contended that Mr Ford "was aware the crane was still supporting weight from the panel as on his own version he says he instructed the crane operator not to lose all the weight". In oral submissions, senior counsel reverted to the position adopted by GTE with respect to Mr Ford, namely, that his "actions" indicated he did not know the panel was under weight.
254The premises underlying these contentions were that, if Mr Ford knew the panel was under weight, he would have invariably acted, due to the obligations reposing in him as a dogman/rigger, to prevent entry and, in respect of Mr Fetherston, he would have communicated the status of the panel to his fellow dogman.
255To the extent these premises are expressed in absolute terms, they must be found to be incorrect. Whilst it may be accepted that, in the ordinary course of conduct, Mr Ford would act consistently with his duties, it does not follow that he necessarily would do so. Hence, conduct by Mr Ford contrary to his obligations as a dogman/rigger (even if substantially in breach) cannot necessarily result in the conclusion that he did not know the panel was under weight. The premise omits the possibility of Mr Ford acting contrary to his obligations because of neglect, forgetfulness, absentmindedness or through some distraction from, or negligence in, the performance of his duties. If the submissions are to be understood in terms of the likelihood of the occurrence of Mr Ford knowing the panel was under weight, then the factors relied upon need to be weighed in the light of a range of factors (including those not addressed in the factors relied upon by the defendants in this respect).
256The ultimate determination of the question of whether Mr Ford knew the panel was under weight requires not only a closer consideration of the circumstances in which he did not act (and the observations, or lack thereof, made by him) but also Mr Ford's own evidence on the question and evidence bearing directly upon the state of his knowledge (such as the exchanges occurring between himself and Mr Jones in respect of the third lift).
257Mr Ford stated that he knew the panel was under weight. That evidence was not challenged in cross-examination. However, as earlier noted, Mr Ford's evidence was attended by issues of reliability and credit which would warrant significant caution being exercised before its acceptance, particularly in the absence of objective factors or corroboration which supports acceptance of the evidence.
258The Court's finding that Mr Ford did observe the supervisors standing on the panel is one factor relevant to, and standing against, the acceptance of Mr Ford's evidence. The evidence as to Mr Ford's failure to act, having seen the supervisors on the panel, is consistent with the hypothesis that he did not, in fact, know the panel was under weight (except to the extent, as I will later discuss, some alternate explanation for these actions may be found such as may affect the predicative value of this consideration).
259That factor is strengthened by the fact that Mr Ford, as it has been found, actually observed the labourers conducting the work of Pandrol clip removal on the panel. The failure to prevent this occurrence would represent a substantial aberration of his obligations. As the head dogman/rigger he should have been acutely aware of the dangers of removing Pandrol clips from a panel which was under weight. The period of time which elapsed between Mr Ford first noticing work on the panel and his ultimate reaction (which he described as a "couple of minutes") is less consistent with him being merely distracted.
260A further factor is Mr Fetherston's state of knowledge. There was no challenge to Mr Fetherston's evidence that he did not know the panel was under weight and such a conclusion is abundantly available on the evidence. The fact that he was not told and, thereby, did not know the panel was under weight is another factor pointing against Mr Ford's evidence that he knew the panel was under weight because it might be expected that, in the ordinary course, if Mr Ford did know he would have informed Mr Fetherston of that fact.
261A significant counterpoint to these considerations has its genesis in the uncontested fact that the panel was lowered to the ground under weight.
262If that eventuality arose from an instruction given by Mr Ford to that effect, then, as Mr Agius conceded, significant doubt must be cast upon the contention that Mr Ford did not know the panel was under weight, even given the factors discussed at [258] to [260] above. If Mr Ford had, in fact, given such an instruction, he would, in every sense, be the 'architect' of the panel being left under weight, making somewhat implausible the notion that, in a period of time ranging from 5 to 20 minutes, he would lose consciousness of both the action he had taken and the state of affairs arising in consequence of it.
263Did Mr Ford give an instruction in those terms?
264As previously mentioned, Mr Ford stated that he did so and conveyed the actual content of the instruction he gave to Mr Jones. His evidence was that he instructed Mr Jones to "just come down and put it on the ground we'll rest it because it's out of whack, we won't drop all the weight". It is apparent from that evidence that Mr Ford was there referring to an instruction given after the panel had been lowered sufficiently close to the ground so as to allow an assessment of the misalignment to have occurred.
265Mr Jones corroborated Mr Ford's evidence that he gave an instruction that the panel be lowered under weight. Mr Jones gave evidence that he received that instruction and knew the panel was under weight from the third lift until the incident. His evidence, in that respect, was as follows:
[Mr Ford] just said 'it's not going to fit, so they've got to go and get the supervisor.' So they went to get the supervisor, and we were sitting there waiting for him to come back. And it was sitting in the air, so he's lowering me down to the ground, just to touch it down so it wouldn't spin. And, yeah, we were just sitting there in a holding position, waiting for someone to come up and make a decision what was going to happen. ...
266It was Mr Jones' evidence that, in terms of the crane operations, "[I] don't do nothing until I get a signal from my dogman or my rigger"
267Whilst a deal of attention was paid to whether Mr Ford's account of his exchange with Mr Jones in respect of the third lift should be accepted, little attention was paid to Mr Jones' account.
268I have not found Mr Jones to be an unreliable witness, although I have, above, rejected part of his evidence, namely, that he did not observe the labourers mount the panel and commence work near the time of the incident.
269Mr Jones was not cross-examined on the evidence extracted above.
270Furthermore, there is no evidence directly contradicting Mr Jones' account, in this respect, and considerable objective evidence which supports it.
271Mr Jones conducted the lifts of panels "1-3" and "1-4" and the first two lifts of panel five without incident. Each of those lifts resulted in the panels being lowered onto the ground without weight.
272Mr Ford gave evidence that he issued instructions for panel five to be lowered without weight on the first and second occasions. Even allowing for the unreliability of his evidence, there is no apparent reason to reject his evidence in this respect. The uncontested evidence was that Mr Ford was the leading hand in the crane crew and controlled the lifts of the panels via radio communication with Mr Jones. He was the only person to give instructions as to how the loads would be lifted, slewed and lowered. Mr Jones confirmed that evidence with his own evidence, extracted above, that he followed Mr Ford's instructions. That one dogman/rigger would be in charge of the lifts was the direction given by the Boom Logistics JSA and Lift Study/Plan. There is no other evidence which would contradict that fact, particularly as the lifts in question conformed to the instructions Mr Ford said he issued. Even though it was contended that care should be taken in accepting the crane crew's evidence without corroboration, it was not suggested that Mr Jones did other than follow Mr Ford's instructions with respect to the first and second lifts of panel five.
273I would interpose at this juncture to note that GTE submitted that Mr Ford's evidence as to the movements of the panel prior to the incident differed from that of Mr Jones in one important respect. It was contended that Mr Ford said the panel was still suspended after the first lift but that "[n]o one else says this. In fact the panel was on the ground and people had come onto the panel at this time without objection from any of the crane crew."
274The submission is, however, misconceived. Mr Ford gave evidence, with respect to both the first and third lifts, that when panel five was lowered to the ground it was initially suspended 100 millimetres off the ground whilst minor repositioning and assessments were undertaken and, in the case of the first lift, the panel was then placed on the ground and, as Mr Ford stated, "we'd dropped all the weight off it". Mr Jones confirmed Mr Ford's evidence that the panel was dropped to the ground under the instruction of Mr Ford. He did not directly confirm Mr Ford's evidence that the panel was suspended whilst some small adjustments were undertaken before the panel was dropped. He could not recall seeing Mr Ford or Mr Fetherston "try and push the panel over the last foot or so into position". However, Mr Jones' evidence was to the effect that after he first lowered the panel he was told by Mr Ford an adjustment was required and that he should drop the panel to the ground. That evidence is entirely consistent with Mr Ford's account.
275This discussion of the first and second lifts of panel five provides guidance in approaching the question of instructions given by Mr Ford to Mr Jones on the third lift of the panel. Mr Jones may be expected, in the third lift, to act in conformity with his previous practice of following instructions from Mr Ford having regard to the earlier sequence of events and the practices and conventions of the lifts. There is no contrary evidence in that respect. Mr Jones' actions from the third lift to the incident were entirely consistent with such an instruction having been given by Mr Ford.
276As mentioned above, Mr Jones said that he would have followed the instructions of his dogman/rigger. Mr Ford remained in control of the crane operations. No suggestion was made to Mr Jones in cross-examination that he disobeyed an instruction given (by Mr Ford) to lower the panel in the third lift under weight. Nor was there any evidence there was something unusual or aberrant in an instruction of that character being issued as may have resulted in the likelihood of a different course being taken by Mr Jones to that instructed by Mr Ford. (The submissions, as I will discuss below, were confined to what common sense would dictate Mr Ford would have done.) In observing Mr Jones in the witness box, his demeanour would confirm it unlikely he would disobey or dispute an instruction from Mr Ford (particularly when also considered in the light of my observations of Mr Ford's demeanour). As far as it may, the transcript bears out the contrast in personalities between Mr Jones and Mr Ford by the way in which the two witnesses gave their evidence.
277It would be appropriate to further pause here to consider two additional submissions challenging Mr Ford's account.
278First, it was contended that, if Mr Ford gave the instruction to Mr Jones in the manner he stated, it was a step taken contrary to the instruction issued by Mr Horan. Secondly, as Mr Agius contended, a practical and common sense approach would have been to drop the panel without weight, when there was to be a potential delay until a decision was made in respect of fixing the misalignment and possible rectification work undertaken (as had occurred after the first lift). This was the easiest and, therefore, the most likely outcome.
279There is, however, countervailing evidence bearing upon these issues which has the capacity to explain Mr Ford's actions in this respect.
280The evidence of Mr Jones revealed that, by the third lift, Mr Ford was agitated over the fact that the panel still did not align. It is unclear whether this reaction was because the job was delayed, made more difficult or for some other reason (such as an expectation that the processes adopted after the first lift would be repeated), however, the evidence was clear that Mr Ford was annoyed. He expressed his anger in his communication with Mr Jones in which he explained that the panel still did not align (Mr Jones agreed that Mr Ford had spoken "colourfully" to him). It would appear that communication was a precursor to the instruction given by Mr Ford to Mr Jones to lower the panel to the ground under weight (which instruction, as I will find below, was, in fact, given by Mr Ford).
281That evidence explains why Mr Ford may have chosen a course other than a common sense or practical one as suggested by Mr Agius. Keeping the panel under weight may have been viewed as a method of achieving a quicker or less difficult finalisation of the installation of panel five, particularly if he anticipated the panel being relocated as had occurred after the first lift. This does raise the likelihood of a less than rational or more opportunistic response to the problem encountered after the third lift. This may also offer some explanation for Mr Ford's defiance of Mr Horan's instruction.
282On balance, I consider that the evidence of Mr Ford, as corroborated by the evidence of Mr Jones, that an instruction was given by Mr Ford, in the third lift, to lower panel five under weight should be accepted. Whilst there are some countervailing considerations which I have discussed, I do not consider that they warrant rejection of Mr Ford's or Mr Jones' evidence or outweigh the various factors I have discussed in favour of finding an instruction was given by Mr Ford to lower the panel under weight.
283That consideration returns the discussion to the central question of whether, on the evidence, it should be concluded that Mr Ford knew the panel was under weight. This may be best achieved by consideration of the timeline of events after the third lift.
284It follows, from the conclusion that Mr Ford instructed Mr Jones to lower panel five under weight after the third lift, that Mr Ford must have known the panel was under weight at that time.
285A further conclusion may be readily reached. Mr Ford must have known the panel was under weight at the time the supervisors mounted and stood on the panel. That event occurred within a few minutes (no more than five) of the panel being lowered to the ground after the third lift. Mr Ford experienced no significant distractions or interruptions to his work between the third lift and the supervisors mounting the panel other than a discussion with Mr Fetherston and Mr Jones about coffee (which, itself, indicates a lax attitude on the part of Mr Ford). It is not plausible that he was distracted within the short time between the lowering of the panel and the supervisors mounting the panel such that he may have temporarily forgotten or lost immediate consciousness of the instruction he had given and that the panel was under weight.
286Just why Mr Ford acquiesced in or failed to prevent the supervisors standing on the panel is unclear and, as I have noted, this is a counter indicator to Mr Ford knowing the panel was under weight. However, that contraindication is diminished when closer attention is paid to the evidence regarding the supervisors.
287First, there was evidence given that Mr Ford not only had the capacity to prevent supervisors from entering the lift area or mounting the panel, but also the authority to enable persons to be in the lift area during crane operations. By indicating that there may be "Authorised people only in lift areas" during work involved with "Lower[ing] Load to rest position", the Boom Logistics JSA demonstrated that there were circumstances in which persons, other than the crane crew, could be in the vicinity of the panel during the lifting operations.
288Secondly, the fact that supervisors had mounted panel five after the first lift, albeit whilst it was not under weight, may have been a factor in Mr Ford's mind.
289Thirdly, Mr Ford also gave evidence that he had directed Mr Jones to rest the panel on the ground under weight after the third lift because "that way [the panel] wasn't suspended and it couldn't move around. There was still weight on the chains but it couldn't go anywhere." That evidence (which is also relevant to the s 8(1) charge brought against Abigroup) may indicate that Mr Ford did not, even if erroneously, consider it unsafe for supervisors to mount the panel in that state.
290There remains, of course, the period between the supervisors leaving the panel and the occurrence of the incident. This period consisted of approximately 10 to 15 minutes and encompassed Mr Ford witnessing the labourers commencing the work of removing the Pandrol clips, a factor consistent with a finding that Mr Ford did not know the panel was under weight. Mr Ford's admitted actions may, however, also illustrate that he was distracted or neglectful. There was evidence of that conduct: he had a conversation with Mr Jones and Mr Fetherston about coffee, was startled upon having his attention drawn to the panel when he "heard some banging" (at either the time the incident occurred or at a moment so soon before it that he did not have time to radio Mr Jones to instruct him to drop the weight off the crane) and failed to observe labourers mount the panel (although I have found that, at some point, he did see them on the panel working). There was also evidence given by Mr Fetherston that, when he returned to the vicinity of the crane having made coffee, he observed that Mr Ford "was talking to some labourers by the look of it".
291As earlier mentioned, Mr Agius contended that, if Mr Ford knew the panel was under weight, Mr Fetherston should also have known that fact (but did not).
292Mr Fetherston was not told by Mr Ford the panel was under weight. He would have expected Mr Ford to convey that information. He was allowed to depart the work area for a substantial period of time without advice as to the state of the panel. These are factors consistent with a view that Mr Ford did not know the panel was under weight. However, there are countervailing considerations. Mr Fetherston did not ask what state the panel was in after the third lift. If that absence of inquiry (which does not seem consistent with a diligent approach to his work) resulted from Mr Fetherston making an assumption that the panel was on the ground, then there will be no disturbance to the contention of the defendants as to the significance of this factor to the question here under consideration (vis á vis Mr Ford's knowledge). However, that is not the case. When asked if he could have left the vicinity of the panel if he knew the panel was under weight, Mr Fetherston stated: "Most probably not unless - unless [Mr Ford] is in control there. If he is in control of the lift and everything is fine I wouldn't see too much of a problem."
293Mr Ford's observations of the supervisors and the labourers and his approach to Mr Fetherston are factors, as earlier mentioned, which point to a conclusion that Mr Ford may not have known panel five was under weight after the third lift. However, as I have noted, his actions are also consistent with a different scenario, namely, that Mr Ford failed to act to prevent work occurring on the panel and to inform Mr Fetherston of the panel being under weight based on a variety of alternative factors ranging from negligence through to a temporary loss of awareness deriving from carelessness, neglect or forgetfulness. His behaviour, in this respect, may simply be consistent with a conclusion that the conduct was negligent.
294Ultimately, in order to conclude that Mr Ford did not know panel five was under weight for the period following the inspection of the panel by the supervisors until immediately prior to (or at the time of) the incident, it is necessary to find that, having been, as I have found, initially mindful, when he first observed the supervisors standing near and upon the panel approximately five minutes after it was lowered on the third occasion, of the load being under weight, he then lost, in the next 10 to 15 minutes, that state of awareness, without any significant or urgent external intervening event which may explain how this knowledge could so quickly leave his mind, and notwithstanding he actually gave the instruction that the panel be lowered under weight.
295The potency of the factors demonstrating that Mr Ford knew the panel was under weight, when combined with the conclusion, which I have earlier reached, that there were alternative explanations as to why Mr Ford did not prevent the supervisors from standing on the panel whilst under weight (and, in any event, the conclusion that, having given the instruction to Mr Jones no more than five minutes earlier, he must have known, at that time, that the panel was under weight) and why Mr Fetherston may have left the vicinity of panel five, even if it was under weight, significantly outweigh the alternative factors pointing to Mr Ford not knowing, namely, the fact of Mr Ford sighting and failing to prevent the labourers undertaking the work of removing Pandrol clips on the panel and the failure to tell Mr Fetherston that the panel was under weight. Much of Mr Ford's behaviour constituted, in my view, a grievous error and his inaction may be ultimately and properly explained in terms of a neglect of duty for whatever reason. That conclusion may be contrasted with the sheer implausibility that Mr Ford may have lost full consciousness of the effect of his instruction to Mr Jones within a short period after the third lift.
296There is one further matter requiring attention. Mr Agius asked the question "why did [Mr Ford] say he warned a supervisor to keep off the panel when clearly he did not?" This gives rise to a question as to why Mr Ford may have invented the "young supervisor" account and his evidence that he did not observe the panel, save for a momentary glance, after the third lift. That speculation is largely unproductive of a conclusion to the present question except to note that both accounts given by Mr Ford are only consistent with an attempt by Mr Ford to exculpate himself in circumstances where the panel had obviously been found to be under weight after the incident. The version of events Mr Ford propagated after the incident (namely the young supervisor and his lack of observation of the panel) only serve an exculpatory function if Mr Ford knew or may be found to have known the panel had been under weight; the alternative (that he did not know) renders his justifications superfluous.
297I find that Mr Ford knew the panel was under weight from the giving of his instruction to Mr Jones to effect that condition until the incident and that, in failing to prevent the supervisors and the labourers entering and working upon the panel, he acted in contravention of his duties as a dogman/rigger.
298Counsel for the defendants sought different conclusions as to whether Mr Jones was conscious the panel was under weight from the time of the third lift until the incident. Mr Agius contended Mr Jones was not conscious that the panel was under weight primarily because he had made an error or had forgotten (he did not actually submit that Mr Jones never had knowledge of the panel being under weight) and Mr Hodgkinson contended that Mr Jones knew the panel was under weight throughout the period.
299There are three factors which, overwhelmingly, in my view, warrant the conclusion that Mr Jones knew panel five was under weight throughout the period from when panel five was lowered until the incident. Those factors are as follows:
(1)Based upon the analysis and findings with respect to Mr Ford, Mr Jones was in receipt of an instruction to lower the panel under weight, which instruction he complied with. He was, therefore, seized of the knowledge that the panel remained under weight from the outset;
(2)I do not consider there is any proper basis to doubt the reliability of Mr Jones' account as to his knowledge of the panel's weight whilst he observed the supervisors on the panel. Part of his account of those events is not disputed, namely, his observations of the supervisors. His evidence that he knew the panel was under weight at that time was given frankly and against his interests (in the sense that he was obliged to prevent the supervisors standing on the load). The evidence was also corroborated by the objective factors and temporal consideration which I will discuss below. Further, it may be inferred from the fact of Mr Jones' observations of the supervisors, and the proximity in time of those observations to his work in lowering the load, that he was attentive to his work at that time. Certainly, he had not yet begun to exhibit the distracted and neglectful behaviour he later displayed in the 10 to 15 minute period following his observations of the supervisors (which behaviour I shall also come to below);
(3)Objective factors point to the conclusion that Mr Jones knew: the load was actually lowered to the ground under weight by Mr Jones, the cabin had a gauge showing the weight of the load which he used to regulate the load and Mr Jones' seat was fixed in a direction which would have drawn his attention to the gauge. Sitting in conformity with these factors was the very nature of Mr Jones' role at the site. He was a crane driver whose primary function was the lifting, slewing and lowering of loads via the use of levers and gauges under which the crane was operated. The lowering of the panel did not occur by accident or error; the execution of that task required skills exercised with precision. Further, Mr Jones recalled, without challenge, the approximate weight under which the load was kept;
300It was contended by Mr Agius that the failure of Mr Jones to redress the situation of the supervisors standing on the load was a testament to him not being "conscious" of the load being under weight.
301I have earlier found that Mr Jones observed the supervisors. Those observations, however, occurred within minutes of the load being lowered to the ground under weight by Mr Jones. It is simply not plausible that Mr Jones forgot or became unaware that the load was under weight within that timeframe.
302It might be noted that it was never put to Mr Jones that the fact he took no action to stop the supervisors standing on the panel was inconsistent with his evidence that he knew the panel was under weight. He gave no explanation, and no explanation was sought, as to why he failed to act in those circumstances. The only comment made by Mr Jones, in that respect (that is, that he saw Mr Ford in the vicinity of the panel), does not detract from a conclusion that he knew the panel was under weight. Rather, that partial explanation (his evidence was, in fact, interrupted) is more consistent with a conclusion that he knew the panel was under weight, because it was given by Mr Jones in an attempt to demonstrate why he did not remove the supervisors from the panel despite his knowledge.
303The next question arising is Mr Jones' knowledge in the period of time after he first observed the supervisors on the panel until the incident. As mentioned, with respect to Mr Ford, this period consisted of approximately 10 to 15 minutes and encompassed Mr Jones admitting to actions which illustrated he was distracted or neglectful (he was looking up and down the rail and was drinking coffee) and, despite his denials, observing labourers at some point working upon the panel. These factors are suggestive of a failure to appreciate the panel was under weight.
304However, by way of similar analysis to that conducted with respect to Mr Ford, in order to conclude that Mr Jones did not know panel five was under weight in the period following the inspection of the panel by the supervisors, it is necessary to find that Mr Jones lost full consciousness of the panel being under weight in the 15 to 20 minutes after he had received an instruction from Mr Ford (which he acted upon), and that he did so without any significant or urgent external intervening event which may explain how this knowledge or awareness could so quickly leave his mind. Having regard to that consideration, and those appearing below, I do not consider such a finding to be available, as it is simply not plausible.
305I do not consider Mr Jones' evidence as to the distractions he encountered in the period between the third lift and the incident may be ultimately accepted as a basis to find he did not know that panel was under weight. That evidence does not permit a finding, in my view, higher than that he was being neglectful of his duties to properly observe the panel under weight. There is no evidence that Mr Jones ignored the panel to such an extent as to compel a conclusion that he no longer knew or considered the panel to be under weight.
306As in the case of Mr Ford, the fact that, as I have earlier found, Mr Jones observed the supervisors standing on the panel and working must give some indication that he may not have known the panel was under weight. However, this consideration is outweighed essentially by the factors I have discussed above, particularly those appearing at [299].
307Ultimately, the evidence only properly permits a conclusion that Mr Jones maintained a distracted, casual or neglectful approach to his duties from the time of the third lift or his observations of the supervisors until the incident. So much is amply demonstrated by the fact that he actually spilled the cup of coffee he was holding whilst reaching for the luff lever in an attempt to avert the incident.
308I accept Mr Jones' evidence that he knew panel five was under weight from the lowering of the panel until the incident.