Inspector John Sharpin v Buildcorp Australia Pty Ltd

Industrial Relations Commission (NSW)|2005-10-19|Before: Haylen J

Industrial Relations Commission of New South Wales in Court Session

CITATION: Inspector John Sharpin v Buildcorp Australia Pty Ltd [2005] NSWIRComm 372

PROSECUTOR: Inspector John Sharpin PARTIES: DEFENDANT: Buildcorp Australia Pty Ltd

CASES CITED: Inspector Stewart v Siemens Dematic Pty Ltd (2003) 121 IR 283

PROSECUTOR: Mr Reitano of counsel SOLICITORS: WorkCover Authority LEGAL REPRESENTATIVES: Criminal Law Practice Legal Group

DEFENDANT: Mr R Buchanan QC with Ms L McManus of counsel SOLICITORS: Sparke Helmore

JUDGMENT: INDUSTRIAL RELATIONS COMMISSION OF NEW SOUTH WALES IN COURT SESSION

Matter No IRC 2394 of 2004 Inspector John Sharpin v Buildcorp Australia Pty Ltd. Prosecution under s 8(2) of the Occupational Health and Safety Act 2000 JUDGMENT [2005] NSWIRComm 372

1 On 21 June 2002, at George Street Parramatta, Buildcorp Australia Pty Ltd ("Buildcorp") was operating as the construction manager at a building site. Next door to the building site was an office block, from time to time occupied by persons employed or acting on behalf of tenants. Part of the work on this day required precast panels to be fixed on the side of the construction which overlooked the office block next door. A crane was required to perform this work. During the task of manoeuvring the slab by crane over the side of thebuilding so it could be affixed to the structure, the crane mechanism failed and the precast panel fell through the roof of the adjoining building and, fortunately, injuring only slightly a person who was working on the top floor of that building. 2 Following an investigation conducted by Inspector Sharpin, proceedings were commenced against Buildcorp alleging a breach of s 8(2) of the Occupational Health and Safety Act 2000. The charge alleged that Buildcorp, being an employer, on 21 June 2002 at 9 George Street Parramatta failed to ensure that persons not in its employment and in particular Chris Wilfert were not exposed to risk to their health and safety arising from the conduct of its undertaking, to wit, the construction of a building while they were at its place of work, contrary to s 8(2) of the Occupational Health and Safety Act 2000 NSW. 3 Because of the stance taken by the defendant in relation to the particulars and the importance of identifying what it was that the defendant had done that was in breach of the Act, it is appropriate to set out the particulars supplied by the prosecutor. The particulars of the charge were: a. The defendant failed to ensure that persons not in the defendant's employment were not exposed to risks to their health or safety arising from the conduct of its undertaking while at its place of work, in that it failed to take adequate measures to prevent a 4.8 tonne precast concrete panel ["concrete panel"] from falling through the roof of 11 George Street Parramatta ["11 George Street"] and to prevent the risk of injury to persons within 121 George Street created by the fall of the panel. b. The persons not in the Defendant's employment, who were at the Defendant's place of work at the time, were persons within 11 George Street, in particular persons on the second floor of 11 George Street, more particularly persons employed by HM Symonds & Britten, the occupier of Suite 2a, 11 George Street and further in particular Chris Wilfert. c. The Defendant failed to provide and maintain a system of work that was safe and without risks to health and safety in that it: (i) caused, permitted or allowed concrete panels to be lifted by crane and suspended above the roof of 11 George Street when those premises were occupied by persons; (ii) failed to (or failed to adequately) warn or notify persons in 11 George Street that concrete panels were being lifted and suspended above 11 George Street and that such undertaking constituted a risk to those persons health and safety; (iii) failed to lift concrete panels so those panels did not traverse the airspace above 11 George Street; (iv) failed to cause persons in 11 George Street to leave those premises while concrete panels were lifted above 11 George Street; (v) failed to ensure that concrete panels were only lifted and suspended above 11 George Street when that building was unoccupied. d. As a result of the defendant's failure as set out in paragraph (c), the said Chris Wilfret, was struck by debris from the falling concrete panel and thereby suffering slight injury to his person. e. As a result of the said failures the said persons referred to in paragraph (b) above were exposed to risks to their health and safety 4 After the matter had been listed on a number of occasions, approximately one year after the Order had been issued, the defendant entered a plea of guilty but took the unusual course of announcing that apart from accepting the offence was committed in accordance with s 8(2) of the Act, the particulars relied on by the prosecution were not admitted. It was anticipated that a hearing between two and five days might therefore be necessary to hear evidence and determine which of the particulars were made out by the prosecutor. The matter was ultimately listed on the basis that the parties would continue their discussions in the anticipation that one day would be sufficient to deal with all matters in issue. As it eventuated, the parties were still discussing the details of an Statement of Agreed Facts and the manner in which the evidence would be called on the morning of the hearing. 5 Although there was obviously much in contention between the parties, a Statement of Agreed Facts was able to be tendered shortly after the commencement of the proceedings. In view of the issue as to particulars, it is appropriate that the substance of that document be reproduced in this judgment. The immediately relevant parts of that document are as follows: ... 4. At all material times Imperial Tarmacadam & Asphalting Co Pty Ltd ("Tarmacadam") owned a building site at 9 George Street, Parramatta, New South Wales ("the building site"). At all material times the defendant was an employer and undertook the business of a supplier of construction services. 5. Next door to the building site was a building known as 11 George Street, Parramatta ("11 George Street"). 6. The defendant entered into a written contract dated 27 September 2001 with Tarmacadam to be construction manager of the construction of a building at the building site .... . The defendant's responsibilities at the building site included; coordinating and supervising works on the site, determining the method of construction; management of sub contractors; the day to day running and control of the processes on the site such as start and finish times, manning levels, construction sequences and the like; control of occupational health and safety compliance measures; safety aspects on the site such as first aid facilities, fire control, reviewing safe work method statements and workplace inspections. 7. The defendant had a site specific safety plan in place at the building site. All sub contractors at the building site were required to comply with the defendant's safety guidelines. The sub contractors were required to follow the directions provided by the defendant at the building site. 8. The building was designed by ARC Architects. The design of the building required approximately 60 to 80 pre cast panels to be fixed on the eastern elevation of the building, adjacent to 11 George Street. 9. On 21 June 2002 the building under construction at the building site was approximately 8 stories high. Vertical climbing screens were installed which consisted of steel mesh in place around the perimeter at the top of the building under construction. The climbing screen on the north eastern corner of the building was approximately 4.5 metres above the top floor slab. The primary purpose of the screens was to prevent people from falling from the top three floors of the building to the ground below. It also prevented debris and building materials from falling. The climbing screens which were on the eastern elevation of the building under construction were estimated to project approximately 500 to 800 millimetres into the adjoining property and in some places were over the roof of the adjoining property. 10. At all material times Tarmacadam contracted Resolution Rigging Services Pty Ltd ("Resolution") to supply a tower crane with operators at the building site. 11. At all material times Resolution leased a Leibherr Model 88HC tower crane from East Coast Cranes and Hoists Pty Ltd ("the tower crane") and supplied the tower crane for use at the building site. 12. At all material times Resolution employed Howard Neely, a tower crane operator, Shane King, a rigger/dogman and Steve Farrawell, a dogman. Pursuant to their contract with Tarmacadam, Resolution supplied Neely, King and Farrawell ("the crane crew") to operate the tower crane at the building site. 13. At the time of the incident on 21 June 2002 the staff employed by Resolution had the following experience: (a) Howard Neely had experience dating back to 1989 where he operated Tower cranes in England. He came to Australia in 1995 and in 1997 obtained his Tower Crane ticket. Mr Neely has experience lifting pre-cast concrete panels in England and Australia. Neely was employed by Resolution for about 10 months and had been undertaking duties as a crane operator at the building site for six months. (b) Shane King had about 6 years experience and had been employed by Resolution for approximately 6 months. He had been undertaking duties as a dogman at the building site for approximately 3 months. (c) Steve Farrawell had about 10 years experience working with tower cranes in the commercial construction industry. He had been employed by Resolution for approximately 6 months and had been undertaking duties as a dogman at the building site for approximately 6 months. 14. Neely, King and Farrawell all held the appropriate Certificates of Competency for their positions. 15. At all material times Rescrete Industries Pty Ltd were contracted to supply precast panels and to provide a crew and supervision to erect the panels at the building site. Rescrete subcontracted NSW Precast Pty Ltd ('NSW Precast') to provide riggers to install and fix the precast panels at the building site. 16. At all material times, there was a three story building located on 11 George Street, which abutted the building under construction at the building site for at least 6 metres and was approximately one metre away from the building site at the furthest extreme on the eastern elevation. 17. On 21 June 2002 the building on 11 George Street was occupied. Part of the top floor of 11 George Street was occupied by HM Symonds & Britten, a firm of solicitors. HM Symonds & Britten's office was open Monday to Friday from 9am to 5pm. The office was usually occupied by four persons including the proprietor of the firm, Darcy Patterson and an employee Chris Wilfert. 18. The system of work used to move the panels into position on the eastern façade of the building under construction required the panels to be suspended above the roof of 11 George Street, Parramatta, for a short period of time. Prior to the commencement of the installing of the precast panels at the building site a meeting was held between representatives of the defendant, Rescrete and the crane crew to discuss the method that would be used to install the panels at the building site. 19. It was determined that a work method statement developed by Rescrete dated 1 May 2002 would be followed. The work method statement was not specific for panels being installed on the eastern façade of the building. The work method statement did not state that the precast panels would be suspended over adjoining properties, nor did it exclude such a method of operation. 20. On 21 June 2002 the tower crane was located on the top floor slab of the building under construction at the building site. The crane cabin was elevated approximately 16 metres from the top floor slab. There was approximately 12 metres of crane tower between the slab floor and the slew mount of the crane. The crane boom was approximately 40 metres long. 21. On 21 June 2002, Neely, King and Farrawell ("the crane crew") were undertaking duties at the building site. Their duties included moving six concrete panels, weighing approximately 4.8 tonnes and approximately 4 metres by 3 metres in size, into position on the eastern façade of the building under construction. They were assisted by the riggers from NSW Precast that had been sub contracted by Rescrete. The crane crew was responsible for the lifting of the panels into position at the site. 22. Once the panels were moved to their correct position the riggers fitted the panels into position on the facade of the building. The crane crew commenced work at approximately 6.30am on 21 June 2002. The panels to be lifted into position on the building under construction were delivered by Rescrete on a truck which was parked in the crane zone on George Street at the front of the building site. The first five panels were lifted into position without incident. Each of the panels moved on 21 June 2002 were moved in the same manner. Prior to the incident 36 to 40 concrete panels of similar weight and size had been lifted and suspended above 11 George Street in the same way. 23. At about 1 pm the crane crew were lifting the last of the six panels. The crane crew communicated with each other via two way radio. King directed Neely, the crane operator to lower the hook to the truck containing the remaining panel. Farrawell and King chained the panel to the tower crane. Neely then took the weight of the panel with the crane. This process is to ensure that the load is properly attached to the crane. Farrawell and King released the truck chains which had held the panel down and fine tuned the trolley to prevent the panel swinging around. Neely then hoisted the panel up until he could see the panel coming over the top of the building. Once the panel was in Neely's view Farrawell and King headed to the eastern side of level three where the panel was to be positioned. 24. Neely then raised the panel over the climbing screens and then stopped the trolley and slewed around to the right. At this stage the panel was over the building under construction. He then started to trolley out in first gear until the panel was just past the screens and over 11 George Street. He then stopped the trolley and started to hoist down. He stopped the hoist just before the bottom of the panel disappeared from his view and placed the crane in neutral as he had to wait for the dogmen to get to level 3. Neely then heard the hoist rope whistling through the sheaves. He looked up and saw the rope running through the sheaves. He heard the panel impact through the roof of 11 George Street and felt the shock load through the crane. 25. The radius of the tower crane hook led to a 2 metre incursion of the panel into the airspace above the roof of 11 George Street. The panel fell through the roof of 11 George Street and came to rest on the floor of the offices occupied by HM Symonds & Britten. 26. Subsequent to the panel falling, Neely contacted Farrawell and King and advised them he had lost the panel through the adjacent building. Farrawell and King were approximately half way across the floor of level three at this time. They ran to the adjacent building to see if anyone had been hurt and to ensure that no one entered the area. 27. At the time the panel fell through the roof of 11 George Street Chris Wilfert was the only person in the office on the top floor of the building. The panel landed approximately one metre behind him. He was hit on the left ankle by some aluminium partitioning but received no other injuries. 28. As a result of the incident there was a hole in the roof of 11 George Street which was approximately 8 metres by 6 metres. 29. Investigations conducted subsequent to the incident on 21 June 2002 revealed that the panel dropped as a result of a mechanical fault being a seizure of the brake pivot pins which caused the tower crane's braking system to malfunction. The malfunction caused the tower crane's hoist rope to release and run through the sheaves resulting in the panel falling. 30. This Tower Crane was only one of its type in Australia and had been in service for approximately five years without incident. The crane was regularly maintained and serviced. 31. The seizure of the brake pivot pins was unforeseeable and an inspection of that part of the crane's mechanism was not practicable under site operation conditions. Morrow Equipment has since modified their inspection checklists to ensure that pivot pins in their modified condition are inspected in the future. The design fault that brought about the failure has been corrected by installation of new components into the brake housing and the installation of grease nipples to allow for regular lubrication. The defendant did not have any involvement in the maintenance or inspection of the crane other than to ensure that it was undertaken. Annexed is a copy of the Morrow report ... . 32. The defendant was aware that the top floor of the building situated at 11 George Street was normally occupied during business hours prior to and on 21 June 2002. 33. The roof of 11 George Street is made of cliplock steel. The defendant had not assessed the capacity of that roof to withstand the impact of the concrete panel or any other heavy objects falling onto it, but no conventional roof would withstand such a fall. 34. The defendant did not notify or advise HM Symonds Britten and Co that the panels would be moved over the building. Ian Dopper, construction manager for the defendant when asked by Inspector Sharpin "what procedures were in place on the site to warn, notify or remove the persons working on or in adjoining properties while a suspended load was being brought across or lowered towards them " answered "none". 35. The building work was undertaken in accordance with a development consent which allowed for work to be undertaken Monday to Friday between 7am and 8pm and Saturday 8am to 8pm. Work was not allowed to be undertaken on Sundays and public holidays. Darcy Patterson proprietor of HM Symonds & Britten advised that at the time of the construction work was occurring their office was usually occupied between 9am to 5pm, Monday to Friday. 36. On 21 June 2002 Inspector John Sharpin, attended the defendant's premises and carried out an inspection of the site of the incident. Photographs were taken and a Factual Report prepared. 37. Following the incident a revised work method statement was devised by the defendant in association with contractors, including Rescrete, the crane crew the chairman of the safety committee and the CFMEU. Annexed to this document ... is a copy of the revised work statement. 38. Having regard to the revised work method statement only the panels being installed at the front of the eastern facade of the building, where the buildings virtually touched, could not have been put in place without traversing the airspace above 11 George St. The other panels to be installed on the eastern facade could be installed without traversing the air space above 11 George Street. There was a distance of approximately 1 metre between 9 and 11 George Street adjacent to where the panel fell through the roof. 39. No other person or entity including any of the contractors involved in the lifting and fixing process have been charged with an offence under the Occupational Health and Safety Act 2000 (OHS Act ) as a result of the activity subject of the proceedings against Buildcorp. 40. The defendant co-operated fully with the investigation by WorkCover. 41. The defendant has been operating in the construction industry since 1990 and has no convictions for offences under the OHS Act. ... 6 During the hearing on penalty, senior counsel for the defendant made it clear that the guilty plea was entered in relation to the charge as framed under s 8(2) of the 2000 Act and by reference to particular (c)(i) only, namely, that the defendant failed to provide and maintain a system of work that was safe and without risk to health and safety in that it : (i) caused, permitted or allowed concrete panels to be lifted by crane and suspended above the roof of 11 George Street Parramatta when those premises were occupied by persons .

The prosecutor pressed the remaining particulars although during the course of discussion it became clear that there was little support for two of the particulars, namely those set out in paragraphs (c)(iii) and (iv). THE EVIDENCE 7 Apart from the Statement of Agreed Facts, the prosecutor tendered the Construction Management Contract between Imperial Asphalting and Tarmacadam Co Pty Ltd and the defendant as the construction manager. The prosecutor also tendered a report dealing with an investigation of the crane, making an assessment of the reasons for failure and indicating the steps taken to remedy the defect. There were 12 photographs of the construction site, the adjoining building and aspects of the crane. The Inspector's factual investigation report and a work method statement prepared by Rescrete in May 2002 plus a revised work method statement were also tendered. A certificate of prior convictions indicated that the defendant had no prior convictions. 8 For the defendant, two affidavits were read. Mr Cameron Powell was employed by the defendant as a construction manager and had held that position since 2005. He held a degree in Engineering (Structural/Civil Engineering), had been involved in the construction industry for over 15 years, had become a project manager with the defendant in 1997 and had completed a occupational health and safety induction course through a provider approved by the WorkCover Authority. 9 Between July 2001 and July 2002, he was project manager for the defendant at the 9 George Street Parramatta site. In this role his duties included overall responsibility for construction and financial management and on average he visited the site five days a week for a period of approximately four hours per day. On almost every occasion he would walk through the job in order to inspect the progress of the works and the safety of the works being carried out on the site. His duties included overall responsibility for occupational health and safety on the site. However, he stated that in practical terms the day to day management of safety on the site was conducted by Mr Werner, site supervisor for the defendant. 10 Mr Powell briefly described how concrete panels were designed as a facade to the building being constructed and how they were lifted into position using a tower crane before being secured. The crane and crew had been provided by Resolution Rigging Pty Ltd and the defendant was not directly responsible for the maintenance of the crane used on the site. The contractual arrangements for the use of the crane required that it be maintained in a proper safe and efficient manner and Resolution Rigging was paid a weekly maintenance fee of $200 to provide that maintenance. Resolution Rigging sub-contracted the maintenance work to Morrow Equipment Co. Mr Powell stated that the defendant relied on the maintenance carried out by Morrow Equipment. That company regularly provided maintenance reports for work done on the crane and these reports were seen by both Mr Powell and Mr Werner. 11 At the time, there were only a small number of tower crane contractors available in Sydney and they were well known to participants in the construction industry. Mr Powell said he sighted all appropriate licences and qualifications and questioned personnel from Resolution Rigging prior to approving the contract relating to the crane. He was satisfied that the crane crew provided by Resolution Rigging was competent, experienced and qualified in terms of crane operation on building sites and was so satisfied prior to approving the contract with that company. Mr Powell stated that he had no reason, at any time, to be concerned about the method by which the tower crane was operated or the effectiveness of the maintenance carried out on it. 12 Mr Powell reviewed the safe working method statement relating to the lifting of the precast concrete panels and did so about one month before any lifting on the site had actually taken place. There was a meeting between representatives of Resolution Rigging, Rescrete, himself and Mr Werner to discuss the available options to safely lift and place the panels into position. Attaching the panels to part of the eastern wall of the building required those panels to be lifted over part of the roof of the property at 11 George Street and there was "simply no other way" by which the panels could be positioned for attachment. Mr Powell stated that it was not an option to lift the panels after hours, working in the dark, because that would be too dangerous and it would not be practicable to illuminate the entire work area. 13 Following the accident, a number of steps were taken by the defendant. The perimeter screens extending from the edge of the building were removed prior to the fixing of panels, allowing the panels to be affixed to the wall more quickly and permitting earlier positioning of the panels prior to fixing. This did not reduce the time to lift the panels nor did it remove the need to suspend the concrete panel for a short period over part of the roof of 11 George Street where the two buildings abutted. In addition, the defendant appointed a dedicated occupational health and safety manager shortly before the incident and the defendant's occupational health and safety procedures were under an ongoing process of review and improvement and there had since been an appointment of an occupational health and safety administrator. The defendant's occupational health and safety manager was involved in hands on investigation of occupational health and safety issues on site usually involving site visits and inspections to consider whether the safety policies and procedures could be improved either generally or specifically to a site. The individual project managers on site were responsible for day to day occupational health and safety on site with the occupational health and safety administrator to focus on the review and preparation of occupational health and safety documentation. 14 Mr Powell said that since the incident the defendant's commitment to occupational health and safety had been further improved in terms of formalisation and documentation. Matters that had been previously addressed in a more informal fashion or verbally were now managed by formal assessment procedures and documentation. The introduction of formal systems for risk assessment, analysis and the approval of safe working method statements and notice of breach or improvement requirements to contractors previously addressed verbally or informally, were now documented to ensure safety on site. There was now a comprehensive policy for the defendant's engagement of occupational health and safety commitments and obligations in the form of its safety policy, a copy of which was provided to the Court. 15 While emphasis was placed on these steps, Mr Powell stated that a number of initiatives had been taken by the defendant prior to the accident in order to provide a risk free environment for employees and visitors to sites under the defendant's control. In relation to this site, there was a safety policy plan, site safety rules, induction sign-off sheets, a site induction policy and a constitution for the on-site occupational health and safety committee. There were between 60 and 70 sub-contractors used on the site and every effort was made by the defendant to ensure that only reputable sub-contractors were selected. All employees and sub-contractors were required to undergo an induction and during this process, occupational health and safety issues were canvassed to ensure that employees of sub-contractors were familiar and complied with the defendant's occupational health and safety initiatives. Employees of sub-contractors were required to sign off on the induction thus providing a record of receiving induction prior to undertaking work on site. Mr Powell also spoke about the site safety policy plan, the operation of the on-site safety committee and the involvements of sub-contractors in its processes, the manner in which site occupational health and safety consultation meetings were held as well as safety audits conducted. 16 Mr Jim Forbes, a structural engineering with 39 years' experience in the building construction industry, gave evidence by way of affidavit and was cross-examined by the prosecutor. Until recently, he had been the chairman of a body known as Irwin Consult a position he had occupied for some 15 years and in that position had been involved with planning, design, co-ordination and supervision of a wide variety of buildings and other engineering structures with a particular emphasis on concrete and concrete structures. He held the position of Adjunct Professor of Civil Engineering at the University of Sydney. Mr Forbes had been retained by solicitors acting for the defendant to review the engineering aspects of the accident that occurred at 9 George Street Parramatta and to provide his expert opinion in relation to the work being performed by the defendant at that site. 17 Mr Forbes set out his understanding of the nature of the work being carried out on the construction site and also his understanding as to the method of lifting of the panel that fell on 21 June 2002. He described that process as representing a normal and usually safe process. 18 The risk involved in the operation was the possibility that a load might fall or while suspended, strike another object or person. In Mr Forbes' opinion, the risk associated with a load striking a person or object while suspended arising from the management of the load having regard to factors such as wind etc did not appear to have been a factor in this particular incident. Mr Forbes nominated seven matters that might be the cause of a possible fall:

(a) failure of the fixings into the precast panel which enabled it to be lifted; (b) failure of the sling; (c) failure of the wire rope; (d) the crane toppling; (e) structural failures; (f) mechanical failure.

In cross-examination, Mr Forbes also accepted that a fall of the load may be caused by human error. 19 These precast concrete panels were prepared for lifting by being cast with fixings designed to take the weight of the panel during the lifting with a sufficient margin for safety. The adequacy of the fixings was usually tested by taking the full load immediately above the truck so that any failure at this point would involved a fall from the lowest possible height. Mr Forbes could find no basis for any failure involving the slab itself. He then dealt with testing of the slings and the adequacy of the facings but there was no inadequacy found in relation to these matters. Mr Forbes stated that there was very little risk that the wire rope in a well maintained crane would fail without warning and that did not occur on this occasion: the same could be said for the possibility for a crane toppling or sustaining a failure of its structural member. The remaining factor involved the possibility of some form of mechanical failure. In Mr Forbes' opinion, a risk assessment of the operation carried out on 21 June 2002 would have rated the probability of an uncontrolled fall while the load was suspended over the adjoining building as "low". In normal circumstances, Mr Forbes would judge the risk of mechanical failure as found by the Morrow Report to be "very low" because in engineering practice margins for safety were over and above the rated load and included in structural and mechanical design. It appeared from that Report that an additional unforseen factor had prevented the normal operation of the brakes. 20 In the present case, the brakes did not fail but were prevented from operating. In Mr Forbes' view the risk of brake failure on the crane while the panel was being lowered in position over an adjacent building was one that could not have reasonably been considered or foreseen by the defendant on this project. 21 Mr Forbes concluded that it would have been impossible to totally eliminate lowering the panels over the adjoining building because they were being erected on the property boundary. A lesser intrusion would still not have prevented the panel falling into the adjoining property in event of a brake failure on the crane. He also gave consideration to the possibility of re-designing the building so that it was set back from the property line but he thought that even in this circumstance, the panel would have fallen into the adjoining property: the fact that the panel was suspended over the adjoining property was not, as he saw it, a significant cause of the damage done by the falling slab and Mr Forbes regarded this as an important issue. 22 The use of hoardings on street frontages to protect the public was then discussed. Mr Forbes stated that these hoardings protected against minor accidents involving relatively small pieces of construction equipment or building material falling from the building or possibly from cranes. However, high load capacity hoardings would not provide sufficient protection against a large piece of falling precast concrete. In his view it was impracticable to protect the adjoining building with hoardings such as would be used on the footpaths due to general lack of support. While it may have been possible to have erected a system that would have protected the adjacent premises from damage resulting from smaller falling objects, he did not believe that it would have been practical to protect against a large precast panel. 23 Mr Forbes concluded that it was inevitable in the process of major construction work (such as the erection of a multi storey building where cranes are used to handle routine everyday loads for positioning) that from time to time, the loads will be lifted across areas where people are working. He regarded it as impracticable that work be stopped during such ordinary crane operations or that buildings be vacated every time a load was lifted, suspended, lowered over or close to them. Once the brake failure occurred, the damage which occurred on 21 June 2002 would have in all likelihood occurred even if the slab had not been suspended over 11 George Street because the slab would have almost certainly rotated away from the building. DELIBERATION 24 In determining the objective seriousness of this offence, it is necessary to consider firstly, which of the particulars pressed by the prosector have been made out on the evidence and to the criminal standard. It is relevant to this task that senior counsel for the defendant accepted that the risk identified by the evidence was that a load might fall from the crane when manoeuvring slabs for installation on the facade of the building being constructed. Having regard to the Statement of Agreed Facts, it did not appear to be part of the prosecutor's case that the risk identified included the possibility that some mechanism in the crane or the crane's structure itself might fail during the task of fixing the precast concrete panel. 25 In relation to the charge as framed, I do not accept that the prosecutor had confined the case to this particular day and the risk to Mr Wilfert who was working in the adjoining building and who narrowly escaped serious injury. The charge was framed by reference to a failure to ensure that persons not in the employment of the defendant and in particular Mr Wilfert, were not exposed to risk to their health and safety from the conduct of the defendant's undertakings. The reference to "persons not in its employment" in the charge is not a reference to all persons working in New South Wales, but to those persons who are identified by the evidence as being sufficiently connected to the building site to raise the defendant's obligation to ensure their safety. On the evidence, those people were employees and others who had cause to be on the top floor of the adjoining building during the construction being carried out at 9 George Street by the defendant. It was not in contest that that floor was occupied by two entities as tenants and that there were ordinarily six to eight people who were in attendance at that location. 26 In relation to particular a. it appears that there are two aspects to that particular: firstly, a failure to take adequate measures to prevent a panel from falling through the roof; and secondly, a failure to prevent the risk of injury to persons within 11 George Street created by the fall of the panel. I am unable to accept, having regard to the Statement of Agreed Facts and the evidence before the Court, the first aspect of this particular, namely, that the defendant failed to take adequate measures to prevent the concrete panel falling through the roof of the adjoining building. As earlier discussed, the panel fell because of a failure of the crane mechanism and it is accepted by the parties that the essential cause related to the braking system which could not be observed and was not foreseeable. Further, the charge has proceeded essentially on the basis not of the defendant's failures in relation to ensuring the effective operation of the crane and its mechanism but, rather, concentrates on the method of work that required the slab to be placed over or near the adjoining building in the process of fixing the panel to the building being constructed.

27 The second aspect of particular (a) is the failure to prevent the risk of injury to persons within 11 George Street created by the fall of the panel. It seems to me that this particular is closely related to particular (c)(i) to which the defendant has pleaded guilty. In many respects, this particular does not add a great deal in describing the charge and it is par (c) of the particulars that essentially performs that task. Considered in that context, I am satisfied that part of particular (a) has been made out by the prosecutor, although little turns upon it.

28 Paragraph (b) of the particulars identifies the persons who were not in the employment of the defendant, who were at risk and who were not otherwise identified in the body of the charge. In the Statement of Agreed Facts and on the evidence, persons in the adjoining building on the third floor and, in particular, Mr Wilfert, were the persons at risk and that does not appear to be controversial. The defendant points to the fact that, in this particular, there is a reference to those persons "at the time" being in that location in the adjoining building as indicating that this charge is limited to the details and particulars of this incident, rather than constituting a general charge. I am not satisfied that is necessarily so but, in any event, whether it was a course of conduct or a specific incident that has been charged, it seems to me that, on the facts of this case, little would be added to the objective seriousness of the offence. Indeed, in my view, properly considered, the various particulars worked to identify the nature of the risk in terms accepted by the defendant, namely, the risk that a load might fall in the course of fixing the precast panels to the exterior of the building being constructed. 29 In relation to particular (c)(ii), the prosecutor alleges a failure or a failure to adequately warn or notify persons in the adjoining building that concrete panels were being lifted and suspended above that building and that such an undertaking constituted a risk to those persons' health and safety. It is not in contest that no warnings were given by the defendant to those who occupied that building that the concrete panels were being lifted and suspended above the adjoining building. The defendant takes issue with the allegation that working in this way constituted a risk to those persons' health and safety. The defendant takes this position, relying on evidence that the operation of the crane in this way was unexceptional and in accordance with industry practice and that, despite the considerable safety measures and approaches adopted by the defendant, experienced people from the defendant and various subcontractors engaged with the crane, dogging and rigging work had not considered that there was a possibility that a precast panel might fall from the crane. I am unable to accept that proposition, as put forward on behalf of the defendant. The evidence of the defendant's expert, Mr Forbes, accepted that there was a risk that a load could fall from the crane but analysed that risk as being a very low risk. This legislation, of course, focuses upon ensuring that there is no risk to employees and non-employees in a workplace environment. While the risk may have been low, it is possible and not fanciful that a load could fall from the crane while working over the adjoining building because of human error, failure of the panel lifting bars or any number of other possibilities identified by Mr Forbes although assessed by him to be of low risk. All that was required of the defendant was to consider that if, for unexpected reasons and contrary to the steps that they had put in operation to safely operate the crane, nevertheless, the load fell, what steps should be taken? If that exercise had been undertaken, then one of the matters that would have had to have been considered was warning or notifying the persons in the adjoining building that large panels were, for brief periods of time, being held by the crane over the top of their building and there could then have been some discussion as to the best means by which the construction could continue, yet the risk to those persons in the adjoining building eliminated. I am satisfied that this particular has been made out by the prosecutor.

30 I am not satisfied that particulars (c)(iii) and (iv) have been established by the prosecutor. The Statement of Agreed Facts and the evidence make it clear that the panels had to be lifted into the airspace above the adjoining building. Further, there is nothing in the evidence that establishes the capacity or authority of the defendant to "cause" persons in the adjoining building to leave those premises while panels were being lifted above that building. On an analysis of the other particulars, the word "cause" here must mean to "direct" or "require", but there is no evidence that the defendant had that authority.

31 In relation to par (c)(v), the defendant says that the allegation of a failure to "ensure" that the concrete panels were only lifted and suspended above the adjoining building when that building was unoccupied also raises the issue of the authority and therefore the capacity of the defendant to remove people from that building. I do not agree that the particular is to be read in that manner. If the occupants of that building had been notified or advised that there was a heavy panel being lifted over their building but they declined to make arrangements to either vacate the building or give a schedule as to when it was convenient for that work to take place while they were absent, then the defendant was simply left in the position of doing that work while they were not there, which was, on the evidence, between 7.00 and 9.00 am during weekdays and on Saturdays. It was not beyond the capacity of the defendant to attend on the adjoining building, in the absence of some co-operation with its occupants, at a time when this work was taking place, to ascertain if they were present and, if they were and refused to leave, it was up to the defendant to schedule the work when those persons were not present. I am unable to accept the defendant's challenge to this particular.

32 In relation to par (d) of the particulars, the defendant points out that Mr Wilfert was not struck by debris from the falling concrete panel but was struck by material within the office as a result of the panel falling through the roof of the adjoining building. The evidence demonstrates that that is what occurred and this particular can only be read in the light of the evidence showing the nature of the risk. Quite apart from the actual injury to Mr Wilfert, there was a risk of a serious injury.

33 Paragraph (e) of the particulars states that, as a result of these failures, the persons identified from the adjoining building were exposed to risk to their health and safety. I am satisfied that particular has been established on the evidence: the words "these failures" is now more narrowly confined having regard to the particulars accepted as being established.

34 Approaching the matter on the basis of the modified particulars as found above, I then come to consider the objective seriousness of the offence. The defendant points to substantial systems of safety that it implemented and the fact that there was an absence of negligence or careless indifference about this particular operation involving the tower crane. In addition, there was an involvement of a number of subcontractors with specialties in relation to the role of riggers, crane drivers and the maintenance of the crane. I have no difficulty accepting those matters put forward by the defendant, but the Statement of Agreed Facts makes it clear that, as construction manager, the defendant had substantial authority in relation to co-ordinating and supervising the works on site, determining the method of construction and the management of subcontractors, controlling the day-to-day running and controlling the process on site including construction sequences and, importantly, the controlling of occupational health and safety compliance measures. Bearing in mind that the defendant's obligation under the legislation was to ensure that persons not in its employment were not exposed to risk to their health and safety arising from the conduct of its undertaking, it must have occurred, or at least should have occurred, to the defendant that, notwithstanding its best efforts, human frailty and even lack of attention could intervene in circumstances where there was an otherwise safe system of work such as to put at risk those people. The defendant's approach that industrial practice and the expert's evidence that it was a very low level of risk that the load would fall does not lead to the result that the defendant's responsibility can be diluted. The fact is that there was a risk, and that is the evidence of the defendant's own witness, and the risk was evident on a simple common sense assessment of a situation where a crane would hold a heavy load over an adjoining building containing people during the course of construction. To ensure that level of risk was addressed required the defendant to take some steps either in relation to the scheduling of its work or reaching some co-operative arrangement with those in the adjoining building when this work was to be performed. It did not mean, as Mr Forbes suggested, that every time a panel had to be moved would require the impractical step of going to the adjoining building to advise and ensure that people were moved whilst the exercise took place. It was a commonsense and practical approach required to undertake this work at times when those people were either not there by co-operative arrangement or were not present because of usual working hours. 35 In relation to deterrence, the defendant accepts that, in proceedings such as this, there is a role for general deterrence. The building and construction industry is one where those employed in it are exposed to significant risks. This defendant has demonstrated its concern about those risks and its desire to address them with quite detailed safety plans and procedures. This particular incident demonstrates the need for participants in the industry to be vigilant and not to be lulled into a false sense of security by an assessment that a particular operation is "low risk". While general deterrence is a factor in the sentence to be imposed upon the defendant, I regard the significant systems already in operation at the initiative of the defendant and the steps taken after this incident as leaving a very limited role for the operation of specific deterrence.

36 Having considered those matters, I am unable to reach the conclusion, as urged by the defendant, that this was not a serious breach of the Act. There are, however, a number of subjective factors that need to be considered and there are a substantial number of those factors that operate in favour of the defendant.

37 It is urged upon the Court that there were others on site who also bore a responsibility for this lifting work involving the crane and the panels to be attached to the external face of the building being constructed. I accept that there were a number of others involved, but there is no evidence as to the nature of their participation in discussions with the defendant about the appropriate measures to take in the circumstances. This is a matter that the defendant wishes to be taken into account and if it wishes to establish the culpability of others then it is an onus that the defendant bears (see the decision in Inspector Stewart v Siemens Dematic Pty Ltd (2003) 121 IR 283). It might be something of a curiosity, as the defendant submits, that others were not the subject of a charge under the Occupational Health and Safety Act, but there is a total lack of evidence that would allow the Court to make a positive finding of culpability in others such that it may detract from the culpability of the defendant. In this context, the overall control exercised by the defendant as construction manager is a significant matter and one not adequately addressed by the defendant's approach.

38 There was some little debate as to whether, a year after the proceedings were instituted, a plea of guilty being entered that this plea could be considered as an early plea for the purpose of a substantial discount on penalty. This is a somewhat unusual case because, despite that long period, having regard to the decisions I have made as to the particulars, it can be concluded that the defendant was entitled to resist entering a plea of guilty when those matters remained as part of the particulars in the case put against it. I think, in all the circumstances, it was reasonable for the defendant to resist entering a plea of guilty in relation to particulars that were not made out on the available evidence. In those circumstances, I think it appropriate that this plea should be considered as a plea entered at an early stage, certainly entered before a contested trial had been set down for hearing and representing considerable utilitarian value having regard to the complexity of the case that the Court may have had to deal with should the defendant have elected to pursue a full defence.

39 I accept the submissions for the defendant that its plea of guilty is a sign of its contrition and there is other evidence that supports such a finding. In addition, it is significant that this defendant, after nearly 15 years in the building and construction industry, has only come to attention on this one occasion. In my view, that is a good industrial and safety record. It is also important that the defendant co-operated with the WorkCover Authority in its investigation of this accident. It is in those circumstances that I would reduce the penalty by 25 percent for the utilitarian value of the plea, and would further reduce the penalty for the other subjective factors just discussed.

ORDERS 40. (a) The defendant is found guilty of the charge under s 8(2) of the Occupational Health and Safety Act 2000 in relation to the particulars established against it in Matter No. IRC2394 of 2004, and to which a plea of guilty has been entered.

(b) The defendant is fined the sum of $110,000 with half the fine to be paid as a moiety to the prosecutor. (c) The defendant is to pay the costs of the prosecutor as agreed or, in the absence of agreement, as determined by the Court.

DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated.

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