Inspector Robert Johnston v Hire N' Higher Scaffolding Pty Ltd; Inspector Robert Johnston v Lipman Pty Ltd

Inspector Robert Johnston v Hire N' Higher Scaffolding Pty Ltd; Inspector Robert Johnston v Lipman Pty Ltd - [2006] NSWIRComm 9 - NSWIRComm 2006 case summary — Zoe

[24]

Safety First: This can be displayed generally to create awareness of the load capacity of the scaffold. 5 Prior to the 25 June 2002, and after scaffolding had been erected along Court Road, by the first defendant, it became apparent that the scaffolding hoarding had been built too closely to the building site and had to be relocated approximately one metre closer to Court Road. This entailed shifting about eighty metres of scaffolding which spanned the length of the building facade along Court Road. To perform the task the second defendant engaged the first defendant and Deno's Cranes. No documentation was produced for the task. At that time the first defendant had been working at the site for some two months. The scaffolding as originally erected consisted of standard boards, and transoms. It sat on top of awning. Handrails had been erected on top of the awning. These handrails had been taken down in preparation for the task, and scaffold components including beams had been stacked in pallets on the scaffolding. About twenty tubes which had been tied down by girder clips to the beams (also referred to in the evidence as clamps) had also been removed to facilitate the dismantling process. The purpose of the girder clips was to prevent the beams from slipping. 6 After this preparatory work had been done, Deno's Cranes was contacted by the second defendant. Joe Maviglia, a spokesperson for Deno's Cranes allocated a Franna crane and three employees comprising the crane crew to the task. The crane crew consisted of Frank Zammit who was the crane driver, and two dogmen Harold Murdock and Jeff Vandresco. A Deno's Crane timesheet for the booking nominated the starting time on 25 June as 7am and the finish time as 10am. This document was taken to the site by the crane crew on 25 June. It was signed by Steve Ross an employee of the second defendant. According to the evidence Steve Ross was employed as a labourer by the second defendant and was not authorised to sign such documentation. 7 A safe work method statement had been generated by Deno's Cranes for the use of the crane crew on 25 June. This document was dated 9 May 2002 although the evidence suggested that it would not have been signed by the crane crew until its members had attended the site. The printed names and signatures of the three members of the crane crew appear on the document. In evidence Mr Zammit identified his signature but did not remember signing it. Mr Murdock also identified his signature on the document although it emerged in the evidence that he was unable to read. This fact was accepted by the parties during the course of the hearing. Mr Vandresco did not give evidence. 8 The safe work method statement contained the name Deno's Cranes in the top right hand corner and was headed "Neeta Shopping Centre". It listed a procedure comprising fifteen steps and identified possible hazards, controls and areas of responsibility. This work method statement on its face governed a procedure to be followed upon arrival at the site and preparatory steps which involved checking the crane and lifting equipment. The second step in the procedure required the crane crew to locate the site office, then take part in an induction. This was stated to be the responsibility of the "site manager". In his evidence Mr Maviglia confirmed that "site manager" was a reference to a supervisor at the Neeta Shopping Centre site and not to an employee of Deno's Cranes. (Two other safe work method statements were generated by Deno's Cranes for the task on 25 June but for present purposes they are not relevant to the charges before the Court). 9 The crane crew arrived at the site on 25 June at about 7am. The site supervisor on the day was Richard Quinlan, an employee of the second defendant. Mr Quinlan spoke to Mr Zammit and instructed him to wait until the scaffolders (a reference to the first defendant's employees) were there. He spoke to no other members of the crane crew. He then spoke to the scaffolders after which he returned to Mr Zammit and advised him that the crane crew could perhaps start about 9am. According to Mr Zammit when he arrived at the site someone whom he presumed was the site foreman told him to see the scaffolders who would show him what to do. He also said he was told he had arrived too early and would not be required until about 9.30am to 10.00am. After speaking to Mr Zammit Mr Quinlan then went to the opposite end of the construction site. He did not speak to Mr Zammit again. 10 At some stage during that morning Mr Ken Ross informed the dogmen that he needed a lift. In his evidence Mr Ross said that he was never introduced to the crane crew. He first spoke to Mr Murdock when they were both on the elevated platform. (This platform was some five metres above ground.) The task of the crane crew was to lift the scaffold components which had been stacked on pallets down to the ground. He gave no other instruction to the crane crew. He did not tell Mr Murdock that the tubes that had run along the length of the planking had been removed. 11 A considerable amount of evidence was given during the proceedings which focussed on the circumstances of Mr Murdock's accident. The prosecutor contended in final submissions that the platform was not secure when Mr Murdock fell. The task undertaken by the first defendant on 25 June of dismantling the scaffolding was achieved by taking out the tubes so that the beams were not tied down and could be dismantled. After the removal of the tubes the clamps were adapted to stop the beams from sliding. This meant that the structure was held together by its own weight. It was no longer stable because the tubes which had operated to tie the structure together had been removed. The evidence in support of this was given by Mr Ken Ross. He described the security of the structure in place just prior to Mr Murdock's fall as consisting of boards placed between beams which in turn were secured by clamps to other beams placed underneath to stop the top beams from sliding. In re examination Mr Ross gave some further evidence about the significance of the removed tubes and the clamps to the security of the structure which prevailed at the time of Mr Murdock's fall:

[27]

Q. But when those ties, the 20 foot long tubes are removed, is there some other interim measure you could have taken? A. We were pulling it down, there is no need to have it tied because you were actually pulling it down. You have undone the safety part to keep it together because you are pulling it down, you don't need that, you can't have that. You can't pull it down when its all locked together. You build it, you lock it together and you build it up; you pull it down, you reverse the role on the way up. 12 The second defendant made no submissions which specifically addressed the security of the structure upon which Mr Murdock was working before he fell. What was contended however by the second defendant was that since the precise reasons for the collapse of the scaffolding could not be determined and the accounts of the accident were contradictory it must follow that the prosecutor has not made out his case. The first defendant contended that on the evidence the decking was secured because the metal planks were placed between the RSJ beams and the RSJ beams were in turn supported by the girders underneath and held in place by the clamps. The platform failed because it was struck by the swinging load of the crane which dislodged the RSJ beam thereby causing the planks to fall. 13 According to the evidence the crane crew had lifted two loads of planks from the scaffold platform and placed them on the ground. Mr Murdock was situated on top of the planks and was directing the crane driver, Mr Zammit, by means of a whistle. Mr Murdock gave evidence that at that point in time the platform felt stable. On the third lift he said that Mr Zammit brought the jib around and lowered the chain to which he attached two sets of planks, one at each end. At that time he was standing in the centre of the platform about two metres from the edge. He then felt the planks move beneath him. He described the planks as becoming "really loose", and said it "felt like the whole frame was moving". In order to save himself he grabbed the load which he said caused it to swing. He did not remember the load coming into contact with an RSJ beam. Mr Zammit said in evidence that he did not see the load hit anything before Mr Murdock fell. Mr Zammit also said that he did not see Mr Murdock fall. He heard a noise which he said occurred when the planks hit the ground. He saw Mr Murdock hit the ground on his left side, get up and run, and then collapse shortly after. 14 Both Mr Gordon and Mr Ross gave consistent accounts of the accident that differed significantly from the accounts given by Mr Murdock and Mr Zammit. Mr Gordon and Mr Ross both said that the load was not under the jib of the crane and swung as soon as it left the platform, hitting the RSJ beam and flipping it over. Mr Murdock then fell between the planks. 15 Photographs tendered into evidence which had been taken on 25 June shortly after the accident show a steel beam lying on its side. Beside it is a scaffold clamp which appears to be attached to a support beam lying cross ways underneath. Whether the steel beam was dislodged by a misaligned load of scaffold planks or by Mr Murdock's actions in grabbing the load in an attempt to save himself from planks which became loose beneath him is an issue I do not have to decide. The precise circumstances of the accident do not have to be established by the prosecutor in order to make out the elements of the charges although the accident and any resultant injuries may form some relevant evidence of a risk to safety. In both matters this risk has been particularised as the risk of falls from heights. At the time of the accident Mr Murdock was working on top of an elevated platform at a height of some five metres. An issue that must be determined here is whether that risk arose as the result of some failure on the part of both defendants to ensure Mr Murdock's safety. I will return to this issue in more detail shortly. The relevance of evidence of how an accident occurred in the context of a charge under s 16(2) of the Occupational Health and Safety Act 1983 was the subject of comment by Walton J, Vice President in WorkCover Authority of NSW (Inspector Farrell) v Ross Colin Morrison [2001] NSWIRComm 325 at [43]: It is not necessary to arrive at a precise conclusion as to how the accident occurred. It is now axiomatic that the general duties created by the Act are directed at obviating risks to the health and safety of persons in the workplace rather than to the circumstances or causes of a particular accident: see Haynes v C I & D Manufacturing Pty Ltd (1995) 60 IR 149 at 158; Drake Personnel at 452 - 454 and WorkCover Authority of NSW (Inspector Byer) v Cleary Bros (Bombo) Pty Ltd [2001] NSWIRComm 278 at [68].

[57]

No system to ensure the safe dismantling of scaffolding: second defendant 33 An analysis of the evidence in relation to the second failure alleged against the second defendant reveals that the second defendant had in place a system to ensure the safety of all contractors on the site. That system included a requirement imposed on all contractors entering the site to produce a safe work method statement. The purpose of the requirement Mr Cadby said was so that the second defendant could make any adjustments and improvements to the work method proposed. The evidence disclosed that the first defendant provided such a document as did Deno's Cranes. In relation to this latter document no employee of the second defendant asked for it to be produced. As adverted to earlier in relation to the evidence against the second defendant concerning its failure to provide fall protection, the safe work method statement generated by Deno's Cranes for the site was not produced to Mr Quinlan although he had intended before the crane crew commenced work to ask for it. 34 Another aspect of the second defendant's system developed to ensure the safety of contractors working at the site was a practice of inducting all contractors. The induction involved discussion on how to perform the particular task. During an induction workers were required to provide evidence of their qualifications and employer details. Mr Cadby explained in his evidence that the second defendant had a standard form which was to be completed by each worker during induction. The workers were also questioned about their company's particular work method statement and whether they had such a statement or been involved in its creation. After induction a worker was given the two back pages of the standard form and the second defendant retained the first page. The front pages of the two standard induction forms were tendered into evidence to confirm that following Mr Murdock's accident the two remaining employees from Deno's Crane's, Mr Zammit and Mr Vandresco were inducted by the second defendant. Both forms contain details of each respective employee, including their relevant qualifications.

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55 In my view the conduct of the crane crew in commencing work before they had been inducted by Mr Quinlan was foreseeable. I have dealt with these circumstances in some detail in this judgment. Mr Quinlan's instruction to the crane crew was deficient in that it left open the possibility that the crane crew would form the impression that they could properly commence work when the scaffolders or more particularly Mr Ross informed them that he needed a lift. Nor was it not reasonably practicable for the second defendant to comply with the Act. Mr Quinlan gave evidence that safety harnesses were available at the site and he identified in his evidence a lifting iron that he said could potentially be used as a possible harness hook. In relation to the second defendant's failure to provide a safe system for dismantling the scaffolding it was open to Mr Quinlan to issue an express instruction to the crane crew not to commence work until they had been inducted and safety requirements discussed. As the evidence disclosed Mr Quinlan did not do this. 56 In relation to the defence available under s 28(b) of the Act the second defendant submitted that it had successfully made out this defence on the facts, those facts being that Mr Murdock had suffered a head injury the previous day and was unable to read the safety instructions contained in Deno's Cranes safe work method statement. These facts together with the fact that the crane crew commenced work contrary to Mr Quinlan's instruction and without being inducted even though they knew an induction was necessary means it was impracticable for the second defendant to make provision against the commission of the offence. 57 In my view this submission cannot be sustained. First, Mr Murdock gave uncontradicted evidence that a head injury which he had suffered the previous day at another worksite did not affect his capacity to work on 25 June 2002. Secondly, Mr Murdock's inability to read may well have come to Mr Quinlan's attention if Mr Quinlan had properly instructed the crane crew not to commence work until they had undergone an induction. In any event Mr Murdock's inability to read safety instructions does not preclude the giving of safety instructions orally by way of, for example, discussion about how the task could be performed safely. It was reasonably open on the evidence for Mr Quinlan to have initiated discussions at any stage after the crane crew entered the site. Thirdly, the crane crew did not, as I have found, commence work contrary to Mr Quinlan's instruction. Mr Quinlan's sole instruction issued to Mr Zammit was to wait until the scaffolders were there. Fourthly, there was no evidence to support a conclusion that the crane crew knew an induction was necessary. 58 I find that the second defendant has not discharged its onus under either s 28(a) or s 28(b) of the Act. The second defendant is therefore found guilty of the offence. 59 I find the offences proven in relation to the prosecution in Matter No IRC 3476 of 2004 against the first defendant and in relation to the prosecution in Matter No IRC 3475 of 2004 against the second defendant. Both matters will be set down for directions hearings at 9.30am on Tuesday, 7 February 2006 for the purpose of programming sentence hearings. Orders

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Judgment (85 paragraphs)

Cases Cited (8)

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