[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'.