Inspector Hayes v Santos and Lorenzo

Inspector Hayes v Santos and Lorenzo - [2009] NSWIRComm 163 - NSWIRComm 2009 case summary — Zoe

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9 Mr Hair's duty statement required him to assist in carrying out work in 'grinding, drilling, punching and cleaning', as well as to carry out other duties as required. Mr Hair explained in his evidence that initially he had been performing sandblasting work at S&L, and that it was not until later in his employment that he assisted in lifting tasks using mobile cranes. Nevertheless, it is clear that Mr Hair had assisted in lifting and move steel plates using mobile cranes on a frequent basis prior to 20 May 2006. Mr Hair was not, however, a qualified dogman, that is someone who was qualified to 'sling a load' or to perform lifting tasks unsupervised. In addition, the evidence revealed that prior to his employment with S&L, he had only performed limited work in assisting mobile cranes, and had not lifted steel plates. 10 On Saturday 20 May 2006, the day of the incident, there were two supervisors on duty at the premises, Mr Jung and Mr Bloom. Mr Hair was due to commence work at 6.00am, but arrived at the Glendenning Rd premises at approximately 6.45am. By the time of Mr Hair's arrival, Mr Bloom had already allocated tasks to the other employees, and directed Mr Hair to assist Mr Alvarez with loading steel plates onto a truck. In his evidence, Mr Bloom stated that he knew that Mr Hair did not have a dogging certificate, but maintained that the direction for Mr Hair to assist Mr Alvarez in loading the truck was nothing unusual or abnormal, and that Mr Hair had lifted steel plates before. (It was Mr Hair's recollection, however, that it had been Mr Jung who had told him to assist Mr Alvarez, as the task was urgent. Mr Jung denied this and maintained that he never said anything more than 'good morning' to Mr Hair). 11 Mr Alvarez was employed in the position of Crane Driver - Leading Hand/ Materials Handling - Yard. Mr Alvarez's duty statement indicated that his duties included receiving incoming goods and storing them correctly and safely, delivering fabricated steel for painting, and loading of trucks for dispatch according to priorities determined by the workshop foreman. The evidence revealed that at the time of the incident Mr Alvarez held a crane ticket, but did not have a dogging certificate. However, Mr Alvarez was Mr Hair's immediate supervisor for the task of loading the truck and, according to Mr Lorenzo and the company policy, it was Mr Alvarez who had responsibility for ensuring that the load was safe. 12 In accordance with Mr Bloom's direction, Mr Hair went to assist Mr Alvarez. Mr Hair stated that the only discussion that he and Mr Alvarez had was that Mr Alvarez informed Mr Hair that 'the trailer had to be loaded and had to be out that day'. 13 The specific task that was to be performed required Mr Alvarez and Mr Hair to access a steel plate underneath a pile of steel plates (the steel plate in question measured approximately 5.48 metres long by 2.26 metres wide by 12 millimetres thick). It was, therefore, necessary for them to move the top plate in order to be able to move one of the plates underneath. Mr Hair and Mr Alvarez both agreed that the two of them did not have a discussion as to how to lift the plate. 14 It is necessary at this juncture to explain some of the relevant equipment utilised in lifting tasks and referred to throughout proceedings. First, there were plate clamps, also referred to as plate dogs, shoe clamps and lifting grabs. These are clamps that are secured onto a steel plate in order to lift and move the plate. There were two types of plate clamps, one type for vertical lifting and the second type for horizontal lifting. For example, if the steel plates were stacked on top of one another in a pile, horizontal clamps would be required, whilst if the plates were stored vertically, in a rack for example, vertical clamps were required. The steel plates that were being moved by Mr Hair and Mr Alvarez on the day of the incident were stacked in a pile and, accordingly, the workmen performed a horizontal lift. According to the WorkCover Authority's 'Dogging Guide 2003' - 6th Edition, which was tendered in proceedings, the procedure for lifting horizontally was as follows: Lifting horizontally. It is recommended that a minimum of four plate clamps and a spreader beam are used for lifting steel plate horizontally. For horizontal lifts use appropriate plate clamps. Use a spreader beam for long thin plates to prevent dangerous flapping, sagging and vibration. 15 In addition, hooks were also available to lift steel plates, although significantly both the dogging guide, and the company manual containing safety procedures, safety instructions and environmental management procedures provided that hooks were only to be used to perform a lift where there were lifting holes in the plate. Accordingly, where there were no lifting holes, the company manual required that appropriate clamps were to be used. 16 The accounts given by Mr Hair and Mr Alvarez in their evidence in the proceedings as to what occurred at the time of the incident, differed. Mr Hair stated that the first step he took to prepare for the lift was to go to the front of the crane to look for the lifting shoes. The company practice had been to have a minimum of two plate clamps located in a basket attached to the crane and according to evidence of employees, there were almost always two clamps on the crane. In addition, the evidence revealed that at the time of the incident, there were approximately 20 clamps located on the premises, specifically in the workshop and storeroom. 17 However, Mr Hair's evidence was that on 20 May 2006, when he went to get the clamps from the front of the crane, there were none in the basket on the crane. Mr Hair then turned to walk towards the storeroom to look for a pair of lifting shoes. However, Mr Hair stated that Mr Alvarez told him to 'just use the hooks, as they were just moving the top sheet to get to the one below'. 18 Both Mr Hair and Mr Alvarez agreed the hooks were already attached to the chain of the crane on the day of the incident. However, Mr Alvarez denied instructing Mr Hair to use the hooks.

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39 As it will have been seen, the charges particularised five failures by S&L to ensure the safety of employees and, in particular, Mr Hair: a failure to ensure compliance with or to adequately enforce a safe system of work for lifting and moving steel plates; a failure to conduct any, or any adequate, risk assessment; a failure to provide any, or any adequate, instructions and training to ensure safe lifting and moving of steel plates; a failure to provide any, or any adequate, information to ensure safe lifting and moving of steel plates; and a failure to provide any, or any adequate supervision of employees necessary to ensure safe lifting and moving steel plates. 40 As it was observed in Drake Personnel Ltd t/as Drake Industrial v WorkCover Authority of New South Wales (Inspector Ch'ng) (1999) 90 IR 432 at 452, 'it is not the accident itself which constitutes the offence, but rather the failure of the employer to ensure that its employees are not exposed to risks while at work.' The risk to Mr Hair's health, safety or welfare in this case was the risk of injury from the collapse of a steel plate during the process of lifting the plate by a mobile crane on 20 May 2006. The question, therefore, is whether S&L exposed Mr Hair to that risk in the manner alleged in the particulars of the charges. 41 Further, as the defendants conceded, regard must be had to the absolute nature of the liability imposed by s 8(1) of the Act: see Cahill v State of New South Wales (Department of Community Services) (No 3) [2008] NSWIRComm 123; (2008) 182 IR 124 and the authorities referred to therein. Thus, in satisfying its duty to ensure health and safety of its employees, the employer must take into account not only the careful and observant employee but also the careless, inattentive or inadvertent employee: Dunlop Rubber Australia Ltd v Buckley (1952) 87 CLR 313 at 320; McLean v Tedman [1984] HCA 60; (1984) 155 CLR 306 at 311 - 312; WorkCover Authority of New South Wales (Inspector Twynam-Perkins) v Maine Lighting Pty Ltd (1995) 100 IR 248; WorkCover Authority of New South Wales (Inspector Hopkins) v Profab Industries Pty Ltd [2000] NSWIRComm 142; (2000) 49 NSWLR 700 at 722.

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42 Prior to 20 May 2006, S&L had in place a safety management system, which consisted of procedures, instructions and safety policies. Under the company's former name, Mald Pressure Welding, there had been policies and procedures in place. However, when the company became S&L in 1999 a major revision and implementation of new procedures had occurred, resulting in the creation of the safety management system. The policies and procedures were reviewed again in 2004. 43 Mr Santos explained that he had played a very important role in developing the safety management system and had primary responsibility for preparing the company's occupational health and safety policy and the company's lifting procedure. Mr Santos was assisted in the writing and preparing of the company's occupational health and safety procedure by an external consultant, Mr Malcolm Gribble, whom he had know for over 30 years. Mr Lorenzo was also involved in the process. 44 Mr Gribble's résumé was tendered in proceedings. He was the principal consultant for M & A Enterprises, a consulting company established in 1987 'for the purpose of consulting with small to medium business for guidance in the implementation of Systems, covering areas of Quality, OHS&R, and Environmental Management to suit their individual needs'. Mr Gribble had over 30 years' experience in 'precision mechanical/fabrication and electrical environment'. His qualifications included being accredited as an OHS Management System Auditor, Quality Management System Auditor, Advance Quality Assurance Supervisor and Industrial Supervision Certificate 1 & 2. 45 Mr Santos explained that once the procedures and policies were properly documented two meetings were held: first with management and the other with workshop personnel in which the procedures and policies were presented and explained, including the purposes of the procedures and policies. In addition, staff were informed that copies of the documents were located in the foreman's office and available 'to anyone that needs to consult, check or read whatever they want to read'. Lifting Procedure

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Q. Were there any other ways of placing shoes or clamps or grabs on the steel plate? A. There's other ways. You can put a pinch bar or whatever; they just sit on the ground so it's easy, it slips on under so you can put it - slip it under and put your shoe on. 54 Mr Bloom conceded he had shown Mr Hair how to perform a lift with hooks in order to apply the shoes. 55 Mr Jung had also seen people use open hooks for small lifts where there 'was no room for lifting'. That is, he had seen people use the hooks to make a gap under the plates, place a piece of timber in the gap and then apply the clamps. Mr Jung stated that he had not seen anyone perform a complete lift, but when he had seen people use hooks to lift a steel plate to a height any higher than necessary to place a piece of timber in the space, he would instruct them to stop. Mr Jung stated he made such an instruction because lifting steel plates with hooks to a height was too dangerous. 56 Mr Alvarez maintained that prior to the lift he performed on 20 May 2006, he had not used open hooks to lift a plate. The only time Mr Alvarez said hooks were used was on the day of the incident. Mr Alvarez described the use of hooks on the day as 'a fatality (sic) at the moment or perhaps lack of concentration'. I note that this was despite evidence, also given by Mr Alvarez, that he observed Mr Hair place the hooks on the plate and that he thought that the location of the hooks had been appropriate. This represents a significant inconsistency with Mr Alvarez's evidence that he had not used hooks to lift steel plate. If he had not done so one would expect the reasons for that would have been that he considered it to be dangerous and/or contrary to S&L's policy. In those circumstances, one would not expect him to have stood by whilst Mr Hair attached the hooks to the steel plate on 20 May 2006. Mr Alvarez's evidence that he had never used hooks prior to 20 May 2006 would also appear to be inconsistent with the evidence of Mr Bloom and Mr Jung, which suggests there was a practice of at least using hooks to lift plates in order to insert wedges under the plate in order to fit clamps. I did not find Mr Alvarez to be a reliable witness as to the truth. I accept Mr Hair's evidence that he had intended to obtain clamps from the storeroom but Mr Alvarez told him just to use the hooks. 57 Both Mr Palejko and Mr Palmos had not seen anyone use hooks to lift steel plates prior to the incident. In particular, Mr Palejko stated that if he had seen someone use hooks to lift steel plates, he would have been upset because 'we emphasise in every tool box meeting that hooks are not to be used to move steel plates in such a way'. Further, Mr Palejko had himself been involved in an incident in 1980, when one of the hooks used to move an impeller, a large fan, slipped and the impeller fell on Mr Palejko. Mr Palejko sustained broken ribs, pelvis, damage to his back and did not return to work for 4 to 6 months after the incident. He was, therefore, very aware of the risk, and sought to emphasis the need not to use hooks to S&L employees. 58 The defendants were also not aware of any practice of using hooks to lift steel plates at the premises prior to 20 May 2006. Both Mr Santos and Mr Lorenzo maintained that the correct procedure was to use a pinch bar in order to create space between steel plates. Mr Bloom also agreed that a pinch bar could be used, whilst Mr Jung described the practice of using a wedge when the plate was flat on the ground:

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64 The system of work adopted by S&L proscribed the use of hooks for lifting steel plates unless there were lifting holes. If hooks could not be used to lift the plate it must follow they could not be used to move the plate. It must also follow that it having been established that hooks were used to lift steel plate on 20 May 2006, S&L failed to ensure compliance with its system of work for the lifting of steel plates. 65 The question remains, however, whether S&L failed to ensure compliance with a system of work for lifting and moving steel plates 'that was safe and without risks to the health and safety of its employees'. In their evidence both Mr Lorenzo and Mr Santos conceded that lifting plates with open hooks to any height was contrary to S&L's policy and that it was unsafe; Mr Santos agreed it was 'dangerous'. S&L's policy regarding the lifting of steel plates using open hooks was a recognition of the risk associated with doing so. The recommendation in the Dogging Guide that a minimum of four plate clamps and a spreader beam should be used for lifting steel plate horizontally was an indication of the care to be taken in using proper equipment in order to avoid or minimise risk. The injuries sustained by Mr Hair were a manifestation of the risk of using open hooks. 66 On the basis of the foregoing, it is my opinion that S&L failed to ensure compliance with a system of work for lifting and moving steel plates that was safe and without risks to the health and safety of its employees. 67 Particular (a) of the charges alleged in the alternative that S&L failed to adequately enforce a system of work for lifting and moving steel plates prior to and on 20 May 2006 that was safe and without risks to the health and safety of its employees. Strictly speaking, it is unnecessary to consider the alternative given the finding that S&L failed to ensure compliance. But, in any event, having failed to ensure compliance with a safe system of work it would seem to follow that S&L also failed to adequately enforce such a safe system.

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68 Before leaving particular (a), I should deal with the prosecution's contention that S&L failed to ensure compliance with a safe system of work by virtue of the fact that there were no plate clamps or grabs supplied with the crane on 20 May 2006 that were suitable for performing a horizontal lift of the steel plate. The issue was of some significance as it was Mr Hair's evidence that if the plate clamps had been available on the day, he would not have used hooks and the incident would not have happened. 69 According to Mr Santos and Mr Lorenzo, there should have been a minimum of two plate clamps located in the equipment basket of the mobile crane, as well as clamps located in the storeroom/workshop. The evidence was that there were usually two clamps located on the mobile cranes. However, Mr Lorenzo conceded that there was no system that required both vertical and horizontal plate clamps to be located on the mobile crane. 70 In addition, it was the prosecutor's submission that not only was the system not enforced, but that as the WorkCover dogging guide required a minimum of four lifting plates to perform a horizontal lift, requiring 'two clamps' was not of itself adequate. 71 Constable Luke Middleton, the police officer who attended the scene after the incident gave evidence in proceedings. Photographs taken by Constable Middleton soon after the incident, and tendered into evidence, revealed a yellow clamp attached to the steel plate. This was consistent with the evidence of Mr Palmos and Mr Alvarez that after the plate fell on Mr Hair, the two men had obtained a clamp from the front of the crane and had used it to remove the sheet from Mr Hair. It was the prosecutor's submission that it was clear that the clamp in the photograph was a clamp designed for a vertical lift. The defendants did not dispute that proposition. I, therefore, accept that the clamp used to remove the sheet from Mr Hair was a vertical clamp. 72 Although it was Mr Hair's evidence that there were no clamps in the equipment tray on the day of the incident, the evidence suggests that there were no horizontal clamps, but only vertical clamps. Mr Palmos, the first to attend the scene, stated that he saw plate clamps in the front of the mobile crane and was certain that he had seen more than one plate clamp and thought that there had been two. However, Mr Palmos explained that he and Mr Alvarez had only used one of the plate clamps to move the steel plate off Mr Hair. That plate clamp was the one shown in Constable Middleton's photograph and was a vertical plate clamp. 73 As for the availability of clamps elsewhere on the premises, the evidence revealed that there were approximately 20 plate clamps available on 20 May 2006. This was Mr Jung's evidence and he knew this to be so because he had checked the clamps himself following the incident. He stated that plate clamps were located in the workshop and the storeroom.

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78 Mr Palejko explained that the issue was not that staff were intentionally hiding the equipment, but that people were using the plate clamps and not returning them to the appropriate location. The company's response had been to inform employees that when they were finished with a plate clamp they were to return it to where they had taken it from. Mr Lorenzo explained that this was continuously monitored by himself, Mr Santos, the foreman and leading hand, to ensure that the clamps were located in the correct spot. 79 Whilst it is somewhat curious that each of the witnesses who were asked how many plate clamps were located on the premises on the day recalled there being 20 plate clamps available, I have no basis to believe otherwise. However, I find that there were no horizontal plate clamps available on the crane on 20 May 2006. For the horizontal lifting of steel plates qualified dogmen are trained in the recommended method of using a minimum of four plate clamps and a spreader beam. There were only two vertical plate clamps on the crane. 80 It must be accepted, however, that there were clamps located on the premises on the day, albeit in the workshop/storeroom. Whilst it was a most unsatisfactory system not to have the necessary clamps on the crane, the question is whether that constituted a system of work that was not safe and attended by risks. 81 The risk was that in the absence of clamps being immediately at hand, employees would be tempted to use hooks rather than walk the distance of about 200 metres to the workshop or storeroom to find and retrieve suitable clamps. That, indeed, is what happened and it is not surprising that Mr Hair did not follow through with his intention to find clamps in the storeroom because Mr Bloom had shown him how to lift steel plates with open hooks in order to put the shoes on. Moreover, it must be remembered that the employer's duty is owed equally to the hasty, careless, inadvertent, inattentive or unreasonable employee and that employers are under an obligation to 'be on the offensive to search for, detect and eliminate, so far as is reasonably practicable, any possible areas of risk to safety, health and welfare' that may have arisen from time to time in the conduct of the business: WorkCover Authority of NSW (Inspector Egan) v Atco Controls Pty Ltd (1998) 82 IR 80 at 85. It was reasonably foreseeable that if plate clamps were not immediately available employees might take the expedient course and use hooks to lift steel plates, especially for the purpose of inserting wedges. 82 In these circumstances, S&L's failure to ensure sufficient and suitable clamps were available on the crane and not in the storeroom or workshop on 20 May 2006 constituted a system of work that was attended by risk. This compounds the earlier failure found to have occurred, namely, the failure to ensure open hooks were not used to lift steel plates. 83 I find that S&L failed to ensure compliance with, or adequately enforce, a system of work for lifting and moving steel plates on 20 May 2006 that was safe and without risks to the health and safety of Mr Hair. Particular (a) is made out. Risk assessment

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87 Particulars (c) and (d) alleged that S&L failed to provide any, or any adequate, information, instruction and training to Mr Hair, as was necessary to ensure Mr Hair's health and safety at work whilst lifting and moving steel plates. 88 Mr Hair maintained that when he commenced employment with S&L, as part of his induction he was given no training or instructions or 'shown anything' in relation to dogging work or assisting mobile cranes, and was only given on the job training by Mr Alvarez and Mr Bloom later during his employment. Mr Hair said that on his first day he had had a meeting with Mr Palejko, who took him through the induction form and then showed him around the storeroom and factory and showed him where things were located. 89 Mr Francisco, the Site Foreman and Mr Palejko, the Production Manager - Welding Supervisor, both gave evidence that when Mr Hair commenced employment an induction had been performed. Mr Hair's induction form was tendered in proceedings and recorded that an induction had been conducted on 2 May 2005. The form was signed by Mr Hair, Mr Palejko and Mr Francisco. The form indicated, that amongst other areas, Mr Hair had been instructed in assisting mobile cranes, lifting equipment and dogging. 90 Mr Francisco gave evidence that during the induction he had asked Mr Hair whether he had worked with cranes before and whether he had a dogging certificate. Mr Hair advised that he had previously worked with cranes, but did not have a dogging certificate. Mr Francisco then asked Mr Hair to sling a load, which Mr Hair did to Mr Francisco's satisfaction. Mr Francisco said he instructed Mr Hair that when lifting loads, not to do anything stupid and to use plate clamps and not hooks when lifting steel plates. Mr Francisco also explained the different types of clamps, and where they were located. In respect of dogging, Mr Francisco explained that he inducted Mr Hair in respect of dogging work, despite Mr Hair not being a qualified dogman, as 'dogging was part of the work', and so long as Mr Hair performed dogging work in full view of the crane driver, that was permissible. It was Mr Francisco's understanding that, according to WorkCover, if loads were slung in full view of a crane driver, formal qualifications were not necessary. 91 Mr Palejko explained that the induction process had gone for about 45 minutes and that, although he had filled in Mr Hair's name on the form, it had been Mr Hair that had ticked the boxes in respect of the areas covered in the induction. Mr Palejko explained that the process was that he would go through and explain all the areas and that Mr Hair would tick it off on the form. Mr Palejko stated that he had said to Mr Hair that when lifting steel plates 'we recommend all the time we lift or move the steel plate we use clamps'. 92 Mr Bloom gave the following evidence about training: Q. What training did Mr Hair receive in that procedure you've just described there? A. He was shown. I've shown him, I showed him how to use the dogs, how to use shoes, how to sling a load, how wide to put the chains, how wide not to put the chains, all common dogman sort of stuff, so he learns as he goes along.

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· which sling to use; · how to sling the load; · the condition of the sling; or · the load and its centre of gravity. 133 As to whether Mr Hair or Mr Alvarez were required to exercise judgment in relation to any one of the foregoing factors, the defendants were correct in submitting that: · there was no evidence that the application of slinging techniques, or the inspection or selection of lifting gear, was ever part of the duties of Mr Hair or Mr Alvarez; · the chains (or slings) were already attached to the crane on the morning of 20 May 2006. There was no evidence to suggest that the chains were fitted to the crane by anyone other than a competent person; · there is no evidence to suggest that the chains were anything other than fit for purpose; and · there was no evidence to suggest that the lifting of the plate required any calculations as to weight or centre of gravity to be performed by either Mr Hair or Mr Alvarez. 134 There may have been no evidence that the application of slinging techniques, or the inspection or selection of lifting gear, was ever part of the duties of Mr Hair or Mr Alvarez. However, the fact is that Mr Hair slung the load by placing the hooks where he considered was the point equidistant from the ends of the plate. In doing so he exercised judgment as to how to sling the load and exercised judgment about the load and its centre of gravity. Therefore, according to Mr Boardman, Mr Hair was required to hold a dogman's certificate. 135 The training in dogging work for the purpose of obtaining a dogging certificate involves instruction in rules to follow when slinging a load such as identifying the points of a load at which slings should be attached by reference to the angle of the legs of the sling, and the use of plate clamps and spreader beams when horizontally lifting ordinary rectangular steel plates. Mr Hair was not instructed in these techniques, particularly the angle required between the legs of the sling when attaching the sling to the steel plate and the use of spreader beams, because of misconceptions by key personnel. Mr Lorenzo thought that Mr Hair could perform the work of assisting to lift loads using a mobile crane provided the lifts were simple and not complicated. Accordingly, he merely instructed his managers not to allow Mr Hair to be involved in complicated lifts. Mr Francisco, who inducted Mr Hair in assisting cranes and dogging work, thought Mr Hair did not need a dogging certificate if he worked on simple lifts and remained in view of the crane driver.

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Mr Hair was supervised and directed in performing dogging work on 20 May 2006 by a person who was himself not qualified to perform dogging work, namely, Mr Alvarez. Even if Mr Hair was not strictly required to have a dogging certificate to perform the subject lift, Mr Alvarez was so required: (i) the defendants relied on Mr Alvarez's and Mr Bloom's training and qualifications to direct Mr Hair in assisting mobile cranes and lifting safely; (ii) Mr Lorenzo erroneously thought that Mr Alvarez and Mr Bloom had dogging certificates at the time of the incident. Mr Santos was not sure whether Mr Alvarez and Mr Bloom had dogging certificates; (iii) in fact, neither Mr Alvarez nor Mr Bloom held dogging certificates as at 20 May 2006; (iv) some competent person had to have exercised judgment in selecting the slings used for the lift on 20 May 2006, at least at some point; (v) although the hooks were already affixed to the slings on the crane prior to the lift Mr Alvarez expressly conceded that he (and Mr Hair) selected the lifting equipment to be used on the day. This was inevitably so because, whether or not the slings were already on the crane and whether or not those slings had been used in prior lifts, Mr Alvarez and/or Mr Hair must have made a conscious or unconscious decision that they were suitable for that particular lift; (vi) moreover, at the point " prior to using these items " and " especially where being used for securing purposes ", Mr Alvarez and/or Mr Hair were required by S&L's own safety procedures to inspect chains (for, inter alia , stretched links, cracked link joints, bent and/or crushed links) and hooks; (vii) accordingly, the training of a dogman involves detailed instruction as to how to check the grade and condition of lifting chains; (viii) it is clear that at least Mr Alvarez did, and (it is submitted, also Mr Hair) was required to, exercise judgment in respect of (a) selecting which sling to use, and (b) inspecting the condition of the sling. On the relevant criteria accepted by the defendants' expert witness, a dogging certificate was therefore required for slinging and directing the movement of the steel plate on 20 May 2006 (if not held by Mr Hair, then certainly to be held by Mr Alvarez); (ix) this is consistent with the evidence of Mr Lorenzo who conceded that Mr Alvarez had been relied upon to select lifting gear for, and move and lift, the full range of products produced at the premises; (x) Mr Boardman accepted that "a person who holds a certificate of competency to operate a crane or hoist cannot sling or direct the movement of a load except where the holding of a dogging certificate is not required or the person holds a dogging certificate"; (xi) this is consistent with the Regulations which provide for separate and distinct certificates of competency for "dogging", "operation and use of cranes" and "operation and use of hoists" each of which is identified as a separate and distinct type of "scheduled work"; (xii) as the holder of only a crane certificate Mr Alvarez was therefore not permitted to sling and direct the movement of the subject load without also holding a dogging certificate. 141 In respect of the supervision of Mr Hair for the specific lift on 20 May 2006, the evidence was that Mr Alvarez was Mr Hair's immediate supervisor. As earlier noted, however, Mr Alvarez was not in possession of a dogging certificate at the time of the incident. Furthermore, there was no other qualified person present when Mr Alvarez and Mr Hair performed the lift on 20 May 2006. 142 Mr Bloom was Mr Hair's supervisor on the day of the incident, but at the time of the incident Mr Bloom was working near the back of the workshop which was about 200 metres away from where the accident occurred. Mr Bloom only became aware of the incident when Mr Palmos had told him that there had been an accident. Mr Bloom could not remember exactly, but he thought that at the time of the accident he had been shifting some plates with a crane. 143 Mr Jung gave evidence that he saw Mr Hair arrive at work at 6.45am, however he only said 'good morning' to Mr Hair and then returned to the workshop. At the time of the incident Mr Jung was inside the workshop, which was located about 100 metres away from where the incident occurred. He only became aware of the incident when 'some painters' came and reported it to him.

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Q. Yes, but the chain of other people are not working with Mr Alvarez and Mr Hair when they are working together in the yard, are they? A. I give instructions. I give instructions to the production manager to say and make all these people to work in safety. I no supervising, I no checking every single command of their, every single word. 148 It was undoubtedly the case that it was only Mr Alvarez and Mr Hair who were present to perform the lifting of the steel plate on 20 May 2006; they were not subject to any direct supervision by a qualified dogman. It is also undoubtedly correct that neither Mr Alvarez nor Mr Hair possessed a certificate of competency in dogging work. 149 According to Mr Boardman's expert testimony, where a person is required to exercise judgment, inter alia, on how to sling a load, the person must possess a dogging certificate. Clearly, judgment was required to be exercised as to how to sling the load of the steel plate. Slinging a load is not confined to selecting the slings, but includes the manner in which the load is to be attached to the sling or slings. Further, Mr Boardman accepted that 'a person who holds a certificate of competency to operate a crane or hoist cannot sling or direct the movement of a load except where the holding of a dogging certificate is not required or the person holds a dogging certificate'. 150 It follows that the task of lifting the steel plate using the mobile crane on 20 May 2006 was undertaken in the absence of a person certified as being competent to perform dogging work. Prima facie, that constitutes evidence of inadequate supervision necessary to ensure Mr Hair's health and safety at work whilst lifting and moving steel plates. 151 There was evidence that Mr Alvarez was Mr Hair's supervisor in performing the lifting task. It was contended that Mr Alvarez was a person with a crane certificate and of considerable experience in the use of the mobile crane for lifting steel plates. But it was Mr Alvarez who advised Mr Hair to use the hooks that were on the crane to carry out the lift. One could hardly regard that as indicative of adequate supervision, given the risk that it created for Mr Hair. 152 I find that S&L failed to provide adequate supervision to its employees and, in particular Mr Hair and Mr Alvarez, as was necessary to ensure Mr Hair's health and safety at work whilst lifting and moving steel plates. Particular (e) is made out.

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Q. Anyone else? A. To the foreman, Jung, Ronnie. Ronnie who is one of the oldest employees we have, the same thing. I like to transmit this thinking in the people that are working there. 177 The prosecution's main attack was in relation to supervision. The defendants conceded that they relied on a number of managers and supervisors engaged in the workshop area to ensure compliance with the established safety procedure, including Mr Palejko, Mr Jung, Mr Bloom and Mr Alvarez. However, reliance was placed on what Lord Diplock said in Tesco at 194: It may be a reasonable step for an employer to instruct a superior servant to supervise the activities of inferior servants whose physical acts may in the absence of supervision result in that being done which it is sought to prevent. This is not to delegate the employer's duty to exercise all due diligence; it is to perform it. To treat the duty of an employer to exercise all due diligence as unperformed unless due diligence was also exercised by all his servants to whom he had reasonably given all proper instructions and upon whom he could reasonably rely to carry them out, would be to render the defence of due diligence nugatory and so thwart the clear intention of Parliament in providing it. 178 The prosecution contended, however, the defendants had not 'done everything that [they] can reasonably be expected to do by supervision' (see Tesco per Lord Diplock at 194) because they did not ensure that the managers and supervisors on whom the defendants relied were themselves properly qualified to instruct Mr Hair in dogging work. It was submitted that despite the fact that Mr Alvarez did not possess a dogging certificate the defendants permitted Mr Alvarez to perform dogging work - to select lifting gear for, and move and lift, the full range of products produced at the premises. Moreover, that the defendants also permitted Mr Bloom and Mr Alvarez (both unqualified) to instruct Mr Hair in the essential aspects of dogging work. That led to Mr Bloom showing Mr Hair how to use open hooks to lift steel plates in order to place clamps on the plate, rather than by the use of a pinch bar, in direct contravention of the written policy, and to Mr Alvarez advising Mr Hair to use open hooks instead of clamps during the lift on 20 May 2006.

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185 I also accept the prosecutor's contention that the defendants failed to implement a system requiring both vertical-lift and horizontal-lift plate clamps to be available on the mobile crane. Further, there was no system in place requiring at least four plate clamps to be available on the mobile crane. As the evidence indicated, for the horizontal lifting of steel plates qualified dogmen are trained in the recommended method of using a minimum of four plate clamps and a spreader beam. 186 As noted by Haylen J in Ritchie, Staunton J in Daly Smith held (at [134]) that, in order to discharge the onus under s 26(1)(b), it had to be established, on balance, that the person: [D]id all that was required to ensure the putting in place of a system of work within DSC designed to identify and manage risks to safety in his employee's worksites. On that approach, I accept the submission on behalf of the prosecution that that is not done by merely hoping others would or could do what they were told, but also ensuring they have the skills to execute the job they are required to do and then ensuring compliance with that in accordance with the safe standards established. Compliance requires a process of review and auditing, both formal and random, in order to ensure that the safe standards established are in fact being adhered to and under ongoing review. 187 It was submitted for the defendants that no person ever raised this issue with the defendants; they were not aware of any practice of open hooks being used to lift steel plates. It was submitted it is not surprising, therefore, that neither of the defendants thought to raise an issue with any of the supervisors that they did not know to exist. 188 The defendants may not have been aware of the use of open hooks. However, they were unable to show that they had adopted a process of review and auditing that might enable them to ensure supervisors and managers were acting in compliance with S&L's written policy regarding the prohibition of using steel hooks to lift steel plates in the circumstances that occurred on 26 May 2006. The defendants placed much emphasis on the fact that they had written policies regarding the prohibition on open hooks, that they reiterated this policy regularly at tool box meetings and even advised individual employees not to use open hooks. The defendants obviously considered this to be an important safety issue. That being so, one would expect some form of auditing, even by way of casual inquiry, to ensure supervisors and managers were complying with the policy. But there was none.

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