Inspector Hall v Gillespies Cranes Nominees Pty Ltd

Judgment 1This 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. 2In 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; 3In 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; 4The defendant pleaded guilty to the charges. 5Mr 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. 6The 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. 7There 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.