Inspector Rowe v Stephensons Cranes Pty Ltd and Soltau

Inspector Rowe v Stephensons Cranes Pty Ltd and Soltau - [2010] NSWIRComm 68 - NSWIRComm 2010 case summary — Zoe

[73]

[ DISPUTED ] Stephensons failed to properly supervise Mr Kirchen and the crane operator Mr McNeill. Mr Soltau directed or allowed Mr McNeill to lift the load - or otherwise failed to prevent Mr McNeill from doing so - while the pack of floorboards, which eventually fell onto Mr Kirchen, was still partially slung to jib of the crane. 8 Shortly after the incident occurred, the prosecutor attended the site. He described the partially constructed townhouse as having ground level wall frames installed with five floor joists still in position on the northern side of the structure. He said that initially seven joists had been installed but two of these "were broken into different lengths on the floor". He described the remaining five floor joists as being "secured to the top plate of the wall frames by nails, through the bottom rung of the floor joist. The second and third, as well as the fourth and fifth floor joists had intermittent blocking installed to improve joist stability." 9 The material in [28] states that the joists "had not been properly secured, and were not installed in accordance with the supplier's installation guide." The installation guide became evidence in the proceedings. The guide states that temporary battens should be installed by being nailed to the tops of the joists, to provide stability pending the installation of the ultimate flooring. The temporary battens were required to be "braced back to a point of rigidity (no more than 2.5 metres apart) to hold the top flange of each joist straight between supports." These temporary battens had not been installed by Mintark and this reduced the stability of the joists upon which Mr Kirchen was working and upon which the pack of floor sheeting had been deposited. As is set out in [28] of the statement of facts, neither defendant was aware of the necessity for the installation of temporary battens and, as a result, that they had not been installed. 10 Mr Kirchen's evidence consisted of a statement, which he had given to the prosecutor on 16 May 2007 and oral evidence given in these proceedings. In his statement, Mr Kirchen said that he was working on the day of the incident under the direct supervision of Mr Rod Harvey. During the course of the loading of the flooring boards by use of the crane, Mr Kirchen said that he gave hand signals to the crane operator as part of his normal duties. These were duties assigned to him by Mr Harvey. In fact, during the two months that Mr Kirchen had worked at the site, he had worked with mobile cranes, including guiding where he wished the loads to be put down. He had worked previously with Mr Soltau and Mr McNeill, the crane operator on the day. 11 At the time of the crane operation, immediately preceding the incident, the crane had been operated by Mr McNeill and Mr Soltau was acting a dogman. He said that Mr Soltau had hooked up the load and during the lift was watching him. It was Mr Kirchen's understanding that it was he who was directing the crane operator in the positioning of the load. He did not think that Mr Soltau was doing so because "he didn't even have the walkie-talkie on. He was not doing his job at all." At the time of the last lift, Mr Kirchen said that he saw Mr Soltau standing near the front door. After he had the crane operator re-position the load, it was lowered onto the joists and, as far as Mr Kirchen was aware, was perfectly horizontal. Mr Kirchen said that he then proceeded to get the left sling off the load. In order to do this, it would have been necessary for the left hand end of the load to have overhung a joist, otherwise it would have been impossible for the left sling to have been removed. Even then, on the basis of other evidence given in the proceedings, it would have been necessary for Mr Kirchen to reach out to the left some distance in order to manoeuvre the sling over the load. That load was approximately 900mm wide and 1 metre high. Mr Kirchen said in his statement that having got the left sling off he was about to take off the right sling but before he could do so the operator had lifted up the load, without him having given any indication that he should do so. He said that the right hand side of the load was then pressing down on the joists on which he was standing, they snapped and he fell through a hole onto the ground level below. After that, the pack of flooring came down onto him. 12 When discussing in his statement the procedures for directing crane operators and the unslinging of loads he said: "I have not specifically been through a training course but have been shown how to do this in a safe manner for all signals …. I was in the place and I knew what to do and what I wanted basically." 13 In his statement, Mr Kirchen was then asked whether he was assigned duties to unhitch slings from a load and he said: "I don't really know, I'm a carpenter, I can do it." 14 Rodney Gerald Harvey was a director of Mintark Pty Ltd, the employer of Mr Kirchen. A statement was given by Mr Harvey to the prosecutor on 31 May 2007. He said that Mr Kirchen had been involved in directing crane loads onto installed floor joists on the particular site for some time. He said that Mr Kirchen had been doing "that sort of work with me for most of his apprenticeship …." a period of about four years. It was his observation that Mr Kirchen "was giving hand instructions to the crane operator." 15 Mr Harvey made a "supplementary statement" for use in these proceedings on 30 March 2010. That supplementary statement dealt specifically with the circumstances of the incident. 16 Mr Harvey said that at the time of the incident he was standing between the crane and Mr Kirchen, a distance of five to ten metres. He said he had "a clear and unobstructed view of Mr Kirchen prior to and during his fall." He saw Mr Kirchen give directions for the movement of the load just before the incident occurred. He was unsure whether those directions were being given to Mr Soltau, who was on the ground floor, or directly to the crane operator, Mr McNeill. After the load had been repositioned, Mr Harvey said: "I saw the hook attached to the jib of the crane being lowered downwards, and the two nylon slings which carried the load go loose or slacken, which meant that the load was resting with its full weight on the floor joists and the crane was no longer carrying any of the load's weight. I saw that the load was resting flush and evenly on the floor joists. I then turned away from Mr Kirchen to resume my work." 17 Mr Harvey said that he then turned around to face Mr Kirchen "a short moment later." At that stage he "saw one end of the load raised in the air about one metre from the floor joists, and at around a 45 angle to the floor joists. I noticed that one of the slings had been removed, and that the load was connected to the jib of the crane by only one sling. The floor joists on which Mr Kirchen was standing were initially standing upright and were correctly in place. However, when one side of the load was raised in this manner, I saw that the joists on which Mr Kirchen was standing start to twist as it was nailed to the stairwell beam at a 90 angle, roll over and break which then put the weight onto the next adjoining joist causing the same to happen to it. The breaking of the joists caused Mr Kirchen to fall to the concrete slab below …." 18 In oral evidence, Mr Harvey said that when the load finally came to rest after being repositioned, one end of it was overhanging the joists by 600 - 800 mm. He was adamant that the load was "flat". 19 Mr Harvey also said that he did not see Mr Kirchen remove the slings, or indeed anything that Mr Kirchen had done prior to his observations immediately before the incident, which were described in his supplementary statement. 20 The evidence of the defendant Mr Soltau and the crane operator Mr McNeill was quite different to that given by Messrs Kirchen and Harvey in two material respects. The first concerned the involvement of Mr Kirchen in directing the positioning of the load, although he was not a designated dogman. The second concerned the involvement of the operation of the crane immediately prior to and at the time that the joists upon which Mr Kirchen was standing were dislodged. 21 Mr McNeill commenced employment with Stephensons Cranes in November 2003. He had, at the time of the incident, about four years experience as a dogman and held appropriate trade qualifications to be a dogman. At the time of the incident he had been in training to operate a crane for about eight months "on and off." At the time of the incident he was operating the crane under the supervision of Mr Soltau. Mr Soltau was acting as the dogman. In his statement to the prosecutor, Mr McNeill said that he had worked on a number of Mirvac homes and that Mr Kirchen had helped with the unloading of crane loads previously. He had not asked Mr Kirchen whether he had any qualifications or experience in directing the operator of a crane for the placement or positioning of loads. He didn't feel that it was unsafe to work with Mr Kirchen in this way. Furthermore, he said that on the day in question no question of safety arose because he was being directed by the dogman, Mr Soltau. 22 When asked to explain in some detail what had occurred at the time of the incident, Mr McNeill said, in part: "The fourth or fifth lift for the flooring, which the accident happened on and Rick two-way me over the back to hook down and stopped and hooked down again and the weight had come off and waited for Jamie to unhook and waited for Rick to say hook up and when I did hook up, I saw Jamie come down and the flooring came down as well. I turned the crane off and got over there." 23 Mr McNeill had previously said in his statement that at the precise time of the incident Mr Soltau had left the immediate area. 24 Mr McNeill also swore an affidavit which was tendered in the proceedings. It was sworn on 17 December 2009. 25 In the affidavit Mr McNeill said that it was "normal practice from my experience on Mirvac sites for the carpenters to walk on top of the floor joists without any type of fall protection." 26 In describing his understanding of the state of the building site, Mr McNeill said: 6. Mr Harvey indicated to us that he wanted packs of flooring sheets to be lifted up to the first floor and placed on the joists. Mr Soltau and I inspected the floor joists where the loads were to be set down. We could not access the first floor because the scaffolding had a sign to indicate that it was not complete. Neither Mr Soltau nor myself would use or go on to scaffolding which has a "scaffolding incomplete" sign, but we were able to inspect from underneath and did so. The floor joists appeared sufficiently strong and secure, and appeared to be set up the same way as others that we had delivered the same material to before, but neither I nor Mr Soltau is a carpenter and so we relied on Mr Harvey. Mr Harvey is a carpenter and was installing the joists with Mr Kirchen so I understood that they would know whether or not the subject floor joists could support the subject load. Both instructed us to land the loads on top of the floor joists. On their advice I therefore believed that the floor joists were secured and braced appropriately. 27 Mr McNeill described the manner in which the pack was secured and the manner by which it was lifted in the following terms: 9. The packs of flooring were secured together by steel straps, with timber "gluts" underneath to keep the boards off the ground and allow slinging. The two slings were each secured by a reeved (choker) hitch that pulls tighter the more weight is applied, pulling up against one of the gluts at each side, and attached to the crane hook. The slinging was done by me for the first load and Mr Soltau after that. Mr Kirchen played no part in any slinging or "hooking up" of any load.

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None of this occurred. Instead the load was landed and the slings were fully released and swinging free above the load several seconds before Mr Kirchen and the flooring fell. 29 The description contained within his affidavit, which was prepared for the purpose of these proceedings, is much more detailed than the information given by Mr McNeill to the prosecutor in the course of his investigations. I do not state this in any critical sense, because Mr McNeill was merely responding to questions asked of him by the prosecutor. Nevertheless, there is a great amount of detail recalled by Mr McNeill almost three years after the event, as contained in his affidavit, some of which might be expected to have been covered in the statement Mr McNeill gave to the prosecutor. The defendant made the same submission concerning the supplementary statement made by Mr Harvey, which covered a lot more detail than had been contained within Mr Harvey's original statement given to the prosecutor. Again, as the defendant's solicitor pointed out in submissions, Mr Harvey's supplementary statement was created within one month of the date of the hearing. 30 In the course of his oral evidence, Mr McNeill said that he had worked with Messrs Kirchen and Harvey many times at the site. On the day of the incident, he did not have any conversation with Mr Kirchen about where to land the load. He said that in fact he was reliant on directions being given to him by Mr Soltau using the two-way radio. At all times he had a clear view of Mr Kirchen and could see his hand signals. Despite the fact that Mr Kirchen was giving hand signals, Mr McNeill said that he was at all times listening to Mr Soltau, the dogman, and the directions that he gave him. 31 Mr McNeill further said in evidence that when repositioning the load he placed it down again vertically. However, he was unable to see all of the load. He could see about three-quarters of the top part of the load. Furthermore, he could not see the joists on which the load had landed, and therefore could not see how the load was sitting on the joists. His view of Mr Soltau at the time was obstructed by framework as he was walking back and forth. 32 Mr McNeill denied that Mr Soltau was speaking on a mobile phone. 33 Mr McNeill was adamant that he had seen Mr Kirchen remove both slings from the load before he hooked up. He said that he could see the top of the slings. He hooked up the load because Mr Soltau had told him to do so, and not because of any indication having been given to him by Mr Kirchen. 34 The defendant, Richard Gordon Soltau, gave a statement to the prosecutor on 11 July 2007. In addition, he swore an affidavit on 17 December 2009 containing further material and gave oral evidence in the course of the hearing. 35 Mr Soltau had about nine years experience in the construction industry as at the date of the incident. He was qualified and ticketed as a crane operator and as a dogman. At the time of the incident, he had had eight years experience as a dogman and seven years experience as a crane operator. He had been employed by the first defendant for some years. 36 In addition, Mr Soltau had "some years working on a casual basis for TAFE to provide practical classes to workers undertaking their dogging training." To this extent he operated cranes in a training environment. 37 Mr Soltau told the prosecutor that on the day of the incident he was assisting in training Mr McNeill as a crane operator and was carrying out dogging duties. He said that the operation of the crane on that day was undertaken on the basis that Mr McNeill was the driver, he was the dogman and that Mr Kirchen directed where the loads were to be placed. He said that these directions were given to him by Mr Kirchen verbally and that he used the two-way radio to inform Mr McNeill. As part of the working arrangement, Mr Kirchen was involved in assisting in landing the load and in unhooking the load. It was Mr Soltau's understanding that Mr Kirchen was carrying out this work under the supervision of Mr Harvey. 38 In terms of assessing the risk of the work, Mr Soltau said that "we only did a crane specific risk assessment, we didn't do a lot site specific one." 39 Mr Soltau did not regard the participation of Mr Kirchen in the unloading operation on the day of the incident as being unsafe in any way. He said that it was "normal industry practice" for persons to assist in the unloading of loads and he did not regard this as dogman's work. 40 In describing the incident to the prosecutor, Mr Soltau said that Mr Kirchen had told him where he wanted the load to be placed and we let the remainder of the weight off the tension off the slings then Jamie unhooked the slings they were reeved up the slings had dropped down in front of me, I told Nathan to hook up he hooked until the slings were clear of the load and at that stage I walked to the east of the building to hook up the third pack of flooring when I heard the sound of cracking timber I saw Jamie fall to the ground and that stage I saw him hit the ground with his shoulder and head …."

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I deny that Mr McNeill lifted the load or raised the crane hook while one sling was still attached. Both slings were swinging clear below the floor level when I told Mr McNeill to "hook up" and I saw them swinging freely well above the load before I turned away. It was some time after that before Mr Kirchen fell. 46 In the course of his oral evidence, Mr Soltau said that the incident had had a grave effect on him. He said that he felt "really bad for Jamie", that he was diagnosed after the incident as suffering from post traumatic stress disorder, his marriage had fallen apart and he had lost his confidence. He has had difficulty sleeping and is now extremely cautious in relying on decisions made by other persons. He has given up teaching at TAFE. 47 In cross-examination, Mr Soltau was adamant that the load when deposited on the joists was not tilted in any way and was perfectly flat sitting evenly on the joists. 48 Mr Soltau denied using a mobile phone during the course of the operations immediately prior to the incident, and insisted that he had been using a two-way radio to communicate with Mr McNeill, which was hooked up under his coat. Furthermore, he was adamant that whether Mr Kirchen was using hand signals to communicate with Mr McNeill, it was he (Mr Soltau) who was in contact with Mr McNeill and that Mr McNeill only responded to his directions. 49 The narration of the evidence which I have set out above demonstrates a clear and marked contrast in the versions as to what happened between that given on the one hand by Messrs Kirchen and Harvey and on the other hand by Messrs McNeill and Soltau. Whatever the tension in this evidence, I am satisfied beyond a reasonable doubt that Mr Kirchen was, at all relevant times, giving hand signals to Mr McNeill and that Mr McNeill was conscious of them. However, there is no evidence of any hand signals being given by Mr Kirchen to Mr McNeill that conflicted in any way with any instructions given by Mr Soltau as the dogman. I cannot conclude that, per se, the giving of hand signals by Mr Kirchen in some way caused or contributed to the unfortunate incident. 50 However, the controversy concerning the state of the load immediately prior to the incident arguably has a much greater impact upon an understanding of precisely what happened at the time of the incident and why. Both Mr Kirchen and Mr Harvey were adamant that Mr McNeill raised the load unexpectedly and whilst one sling remained attached to the load. On the other hand, Mr McNeill and Mr Soltau both stated that both slings had been removed from the load and were hanging freely so that it was not lifted in any way at the time that Mr McNeill hooked up. In support of this, Mr McNeill said there was no tension felt when he raised the slings and no recoil at the time the load fell. 51 As will be seen, whether and to what extent the load was still attached to the crane will be vital in determining what it was that either caused or contributed to the collapse of the joists, which in turn caused Mr Kirchen to fall. In making this comment, I emphasise that the joists were not as stable as they might otherwise have been if the stabilising battens had been placed upon them. 52 This leads to a consideration of the expert evidence given by Jonathan O'Brien, a consulting engineer who was retained by the defendants to provide an opinion for the purpose of the proceedings. I should say at the outset that Mr O'Brien was clearly well qualified to proffer an expert opinion for the purpose of the proceedings. He has undoubted academic qualifications and on the job expertise to assist the Court in dealing with these proceedings. In formulating his opinions as contained within an extensive written report, Mr O'Brien relied upon material contained within the prosecution's brief served on the defendants consisting of two volumes of documentation. Furthermore, he had access to a set of ten photographs taken "by an unknown photographer - possibly an insurance investigator", one of which assumed some significance. This was a photograph said to represent a view of the accident location taken some little time after the incident. It was said by Mr O'Brien to show "two crane slings visible in the background" and that "neither sling seems to show any evidence of a residual choker loop." There is then a reference to that fact as being "potentially critical." 53 The particular photograph was not proven for the purpose of the proceedings and to the extent that Mr O'Brien has relied upon it for the purpose of his opinion, it is my opinion that it is unsafe to accept his opinion. Furthermore, as Mr O'Brien conceded in cross-examination, the photograph does not show clearly the ends of the two crane slings and it is unsafe to rely upon it as disclosing the state of either sling. 54 In reality, I am unaware of precisely what documentation was contained within the prosecution's brief to the defendants, and I am therefore unsure as to the precise factual material upon which Mr O'Brien based his opinion. Furthermore, this Court has had the benefit of oral evidence given by a number of witnesses, which was obviously not available to Mr O'Brien. I instance also the further witness statement given by Mr Harvey which post-dates the date of Mr O'Brien's report. 55 In his careful analysis of what may have occurred, Mr O'Brien deduced that there may have been nine joists at the building site rather than the seven about which the preponderance of evidence refers. Mr O'Brien undertook certain calculations based on the fact that there were nine joists rather than seven, although, admittedly, he did undertake alternate calculations based on seven joists only being present. 56 Mr O'Brien, in his assessment of the factual circumstances surrounding the incident, was faced with the same dilemma that this Court is confronted with, namely the marked difference in the evidence about whether both slings were clear of the load at the time that the joists collapsed or whether one sling was still attached when the load upended. 57 After summarising such information as was available to him, and after surmising the likely course of events, Mr O'Brien concluded that there were a number of "unresolved questions" concerning the version of events given by Mr Kirchen and Mr Harvey. These included questions about the way in which Mr Kirchen had gone about unhooking and re-hooking the sling which he said had been removed, why the crane operator would begin to lift the load when he had full vision of what was occurring, why the crane operator would continue to lift once the line had become taut, why the crane operator did not indicate that he had received any "shock loading" to the crane once the line became taut, why the remaining sling would not hold onto the load so as to preclude it from falling, why the strapping bands around the load would have broken and why the debris, which he noted from the photographs, had been displaced "so far to the right". 58 However, Mr O'Brien was sceptical about why the joists would suddenly collapse with a static load being placed perfectly evenly transverse to them. This is particularly so given the agreement that the load tipped before falling. Mr O'Brien surmised that the length of the load would have exceeded the area upon which it rested, transverse to the joists. Therefore, some part of the load must have overhung the joists, probably at both ends. However, there was insufficient information available to Mr O'Brien to indicate the length of any overhang in either direction. Mr O'Brien calculated that a load of length 3.6 metres would fall when an overhang of 1.8 metres developed. It would be necessary for such an overhang, perhaps caused by the failure of joists upon which the load was supported, to cause the load to fall. Again, there was insufficient information available to Mr O'Brien to enable him to conclude with any certainty what in fact happened. Furthermore, the matter was complicated because the failure of one or more of the joists could have been caused by the additional weight that Mr Kirchen applied to the edge of the joist as he either stood on it or pushed against it, coupled with the weight of the load, or by the "slow pulling out of one of the nails in the girder's bottom flange" or "some form of creep or progressive cracking effect in the timber." 59 Mr O'Brien thought that it was possible that whilst all of the witnesses thought that the load was positioned level resting on the joists, it may in fact have been positioned at a slight angle, caused by one of the gluts resting on a joist. It could therefore have been out of level by about 10mm over a 3.6 metre length, and this would not be detectable to the eye. This may have contributed to the failure of the joists. However, there is simply no evidence given in these proceedings that would suggest that the load was positioned other than directly resting upon the joists. 60 Mr O'Brien was of the opinion that more precise information about a number of matters would be required before he could furnish a more concluded opinion about how the incident occurred and what may have caused it. This information included more precise details of the load, its length and width, the number of straps, the strapping arrangement, the nature of the gluts and their spacing, the exact number and spacing of the girders, the nature of the end fixings, a precise indication of where Mr Kirchen was standing at the time that he fell and so on. 61 Whilst the Court appreciates the detailed examination undertaken by Mr O'Brien and his best intentions to furnish an opinion that will assist in the determination of these proceedings, in all the circumstances there are so many imponderables that it would not be appropriate to accept Mr O'Brien's report and his oral evidence as providing any safe or appropriate basis upon which to resolve the controversy between the witnesses to which I have previously referred. But I do accept as valid the doubts he has raised concerning the cause of the collapse of the joists on the hypothesis of either competing version. The factual background - resolving the controversies

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27 As to the standard of proof that should be applied, we would adopt what was said by the majority in R v Storey [1998] 1 VR 359 at 369 (per Winneke P, Brooking and Hayne JJA and Southwell AJA) - that a sentencing judge "may not take facts into account in a way that is adverse to the interests of the accused unless those facts have been established beyond reasonable doubt. On the other hand, if there are circumstances which the judge proposes to take into account in favour of the accused, it is enough if those circumstances are proved on the balance of probabilities.") 64 During the course of submissions, the attention of the Court was drawn to the fact that some of the witnesses had made recent statements which contained matters of detail not included within the information originally given to the prosecutor when he investigated the incident some months after it occurred. The fact is, however, that Messrs Harvey, McNeill and Soltau all made statements or swore affidavits for the specific purpose of these proceedings. Furthermore, Mr Kirchen in his oral evidence in the proceedings was much more specific in terms of some of the matters when compared with information which he had given to the prosecutor in his statement made on 16 May 2007. On one view, these more recent documents and the oral evidence would usually be found to be more detailed and more focussed by reason of an upcoming court proceeding without any suggestion of recent invention or exaggeration. 65 I am unable to reconcile the two versions given by the various persons whose evidence I have summarised. I am unable to conclude by reference to the evidence given by any of these persons that one or other of the versions is to be accepted over the other. Neither version provides any entirely satisfactory explanation as to what caused the joists to fail and the load to slip and fall in the way in which it did. For example, even if I were to accept that one sling had been removed, why did the choker effect of the other sling fail to hold the load? In the same way, the fact that the load fell may be more consistent with both slings having been removed. 66 Furthermore, there is no evidence about whether and to what extent the placement of the load caused or contributed to the collapse of the joists. Any such evidence would require an opinion of an expert. It would involve a conclusion about the stability of the joists, the forces that were brought to bear on them and the impact of the static force created by the placement of the load in the context of the period of time which elapsed between its placement and the collapse of the first joist. I shall return to this matter when considering the objective seriousness of the offences. 67 I conclude, in the context to which I shall shortly refer, that the prosecutor has not proven a number of facts adverse to the interests of the defendants to the required standard. 68 I turn now to deal with the statement of facts and those parts of it that were disputed and that relate to the circumstances in which the incident itself occurred. It follows from the conclusions in [65] that I must find that the prosecutor has not proven beyond a reasonable doubt that at the time that the incident occurred the load started to lift whilst one of the slings, namely the right sling, was still attached and that those disputed facts in the statement of facts at [15] and [36] that are based on this allegation have not been proven and should be struck out. 69 I now deal with the remaining matters of contention as contained within the statement of facts. The first relates to the expertise, capability and qualifications of Mr Kirchen to become involved in the positioning of the load and the unloading of the load, including the direction given by him as to where the load was to be positioned. 70 There can be no doubt that the work undertaken by the defendants contemplated that Mr Kirchen would be involved in directing where the load was to be positioned and that he was expected to become involved in the unloading process. I have previously indicated that I accept that Mr Kirchen was giving hand signals directed to Mr McNeill, that Mr Kirchen was in Mr McNeill's sight and that Mr McNeill was aware of the hand directions being given by Mr Kirchen. There is no suggestion by any witness that Mr Kirchen had not had experience in doing any of these things or was not competent or capable of doing so. The evidence is that he had been involved in this type of work for some months on the Mirvac site. The evidence is that this was common practice at least on that site. 71 The prosecutor asserted that it was unlawful for Mr Kirchen to be involved in this work because in order to do so he would require to be certified as a dogman. "Dogging" was, at the time of the incident, defined by regulation 265 of the Occupational Health and Safety Regulations 2001. It was defined to mean: (a) The application of slinging techniques, including the selection or inspection of lifting gear, to safely sling a load, or

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(b) The directing of a crane operator or hoist operator in the movement of a load when the load is out of the operator's view. 72 Some clarification of the requirements imposed by the relevant regulations, as understood by the WorkCover Authority of New South Wales, was contained within an information document published by it, which became evidence in the proceedings. This information sheet seems to indicate that a person can "sling and direct a load" without a dogging certificate "when the load remains in clear view of the crane operator and there is no requirement to exercise judgment in relation to which sling to use, how to sling the load, the condition of the sling or the load and its centre of gravity." This would seem to imply that where a load does not remain in clear view of the crane operator at all times, a dogging certificate is required. This would seem to be consistent with the definition of "dogging" contained within regulation 265, which I have previously set out. 73 The evidence in these proceedings was that at some stage Mr McNeill was unable to see the bottom part of the load, for approximately "half a foot above the floor joists". Accordingly, he was not able to see all of the load during the very last part of the operation when it was placed on the joists. This raises for consideration the question as to whether or not the load is "out of the operator's view" when some part of it cannot be seen, or whether the definition is intended to be read as requiring that all of the load must be out of the operator's view when directed, so as to attract the requirement for a dogging certificate. 74 The regulation was the subject of consideration by Boland J, President, in Inspector Hayes v Santos and Lorenzo [2009] NSWIRComm 163. His Honour's consideration of this matter commences at [131]. However, the facts in those proceedings were relevantly different to those that applied in these proceedings and his Honour's focus of attention was on whether judgment had been exercised by a person in a particular manner so as to attract the requirement to hold a certificate. For reasons that follow, it is not necessary, in my opinion, that I resolve this particular aspect of these proceedings. 75 No matter whether Mr Kirchen should have been so certified, it would still be necessary for the prosecutor to establish that the fact that Mr Kirchen was not so certified created, in all the circumstances, the risk to his health, safety and welfare particularised in the amended application for order. Whilst this is not an essential ingredient of the statutory offence, it is an essential element of the offence with which the defendants are charged. Given the finding that I have made, that the prosecutor has failed to establish beyond a reasonable doubt that the incident occurred in the circumstances attested to by Mr Kirchen and Mr Harvey, the Court is left with a version that has the joists failing after the load has come to rest on the joists and both slings removed. In these circumstances, it is hard to see on the evidence how the participation of Mr Kirchen in these activities without being certified as a dogman can be said to have caused the risk of falling or of a load falling from a crane upon him. This is sufficient to dispose of disputed [34] in the statement of facts and renders the disputed matters in [19], [31] and [32] irrelevant in that they refer to certification or qualifications. 76 It is then necessary to deal with disputed [23],[24] and [25]. These require reference to the safe work method statement that the defendant, Stephensons Cranes, had promulgated. 77 The safe work method statement used by Stephensons Cranes was in evidence. Item 12 applied to "Crane Crew working with Personnel accessing Crane Working Radius." The statement required that all persons assisting crane crew were to sign a joint safety analysis document and that "designated dogman only to direct crane." Mr Kirchen did not sign the document and it was asserted that in allowing someone other than Mr Soltau as designated dogman to direct the crane, the defendant Stephensons Cranes breached its own safe work method statement. I agree that this is a matter that has been proven. It is clear on the evidence that Mr Kirchen was assisting the crane crew and therefore should have been required to sign the job safety analysis document. Furthermore, he was directing the crane in the sense that he indicated where the load was to be positioned. This was contrary to the safe work method statement. I should observe also that item 12 also provides that there should be communications from one source only. As I have found, Mr Kirchen was in direct communication with Mr McNeill. 78 Item 13 of the safe work method statement required fall arresters and safety harnesses to be used in work at heights. This item does provide evidence pointing to a requirement for heightened awareness by this defendant and its employees to ensure that anyone participating in the operation of the crane, as was Mr Kirchen, was provided with appropriate fall arrest equipment. 79 Item 11 required the "dogman to ensure Load is clear and confirm minimum area flat, smooth and continuous beneath Load." 80 This provision in the defendant's safe work method statement is replicated in particulars (b) of the charge brought against Stephensons Cranes Pty Ltd and particular (e) of the charge brought against Mr Soltau with the addition of the words "and otherwise secure". The prosecutor alleged that the failure to ensure that the load was deposited on a flat, smooth and continuous area and was otherwise secure was one of the manifestations of a failure to take adequate steps to guard against the risk of injury to Mr Kirchen. It is clear that there has been a breach of this part of the safe work method statement. 81 I refer to particulars (c) and (g) respectively. The defendants were admonished because they allowed the load of flooring materials to be deposited on an area where not all of the floor joists constituting the landing area had been installed across the whole floor area, as well as being adequately secured. I note, in passing, that such a particular is, prima facie, inconsistent with particulars (b) and (e) respectively which would, as I have said, prohibit the depositing of a load of flooring materials on an area upon which the flooring materials had not already been affixed. 82 I am satisfied, on the evidence, that the material within [16] of the statement of facts, which is not admitted, has been proven beyond a reasonable doubt. The evidence of all of the witnesses to the event, save for Mr Soltau, is to the effect that one or more of the joists cracked. There is also evidence that one or two joists twisted before the cracking sound that led to two joists breaking and falling. 83 Of course, having determined that [15] of the statement of facts has not been proven beyond reasonable doubt and is thereby to be excluded from consideration, there is something of a hiatus because of the reference contained within [15] to the "inner last floor joist" flipping over onto its side which is connected with the reference to the "second floor joist" contained within [16]. For completeness, I repeat that on the evidence I am satisfied that there was a failure of two joists leading to Mr Kirchen falling as described in [16]. The objective seriousness of the offences

[89]

84 I have previously stated that this is the starting point for the assessment of the appropriate penalties to be imposed on the defendants. The particulars of the offences with which each of the defendants is charged are relevantly similar and it is convenient to deal with this aspect of the proceedings in relation to the charges brought against both defendants. 85 It is important at the outset to observe that each of the amended applications for order particularises the risk that is an integral part of the charge and asserts that the risk was the result of the acts and omissions particularised as failures with which each of the defendants is charged. The risk as particularised is "the risk of persons, in particular Jamie Kirchen, being injured from falling from a height and from a falling load, in circumstances where a slung load of flooring was lowered by mobile crane onto a second storey deck area consisting of unsecured timber joists, and where that load placed pressure on the timber joists, thus causing the unsecured joists to give way and collapse." It is an integral part of the particulars of the risk that the placement of the load in turn placed pressure on the timber joists and caused the unsecured joists to give way and collapse. I shall return to this aspect shortly. I observe for completeness that the allegations made against each defendant is that, as a result of the failures alleged, "persons" and in particular Jamie Kirchen "were placed at risk of injury from falling from a height, and from a load falling from a crane." 86 The only risk with which the Court is concerned is that which is particularised and the only circumstances with which the Court is concerned is the risk of injury from falling etc as brought about by the failures asserted against each of the defendants. 87 There is no doubt on the evidence that two joists collapsed and this caused Mr Kirchen to fall. But there is considerable doubt about what caused them to give way. On the evidence given in the proceedings, it is possible that the joists gave way because of any one or more of the placement of the load, the inadequate securing of any one or more of the joists, the inadequate blocking of the joists, the failure to affix stabilising battens, the inadequate number of joists, the failure of one or more of the nails affixing the flange or flanges of any one or more of the joists, or pressure applied by Mr Kirchen as he moved onto or along any one or more of the joists. 88 I have already observed that there is no evidence that would allow the Court to be satisfied on whatever standard of proof applied about the precise cause or causes of the first and then the second joist to fail. 89 It follows that in considering the seriousness of the offence with which of these defendants are charged, I cannot be satisfied that the placement of the load by itself actually caused the unsecured joists to give way and collapse. 90 Of course, as is obvious, the reference in the particulars of the risk to "unsecured timber joists" is not, in the circumstances of the facts proven in these proceedings, a reference to timber joists which were not secured in any way. They were, in reality, secured, but in an inadequate manner. 91 It might be observed that by their pleas of guilty the defendants conceded that the particulars of the risk were as set out in the amended applications for order. Notwithstanding such a concession, it is a fundamental requirement that the Court must be satisfied that there is an appropriate factual basis upon which a determination of guilt may be made, notwithstanding any apparent acquiescence which is inherent in the entry of a guilty plea. The offences charged against the defendants

[90]

92 I now turn to consider in some greater detail, and by reference to the particulars, the offences with which each of the defendants is charged against the background of the factual matrix which I have concluded has been proven and which applies to the proceedings. I have previously set out the provisions of each of the charges brought against each of the defendants. They are relevantly similar and I shall refer for convenience to those pertaining to the defendant Stephensons Cranes. The same observations will apply also to the charge brought against the defendant Mr Soltau. 93 The charge alleges firstly in general terms a failure to ensure that persons other than employees of the defendant "and in particular Jamie Kirchen" were not exposed to risks to health or safety in terms contained within s 8(2) of the Act. There then follows a number of particulars. The first is, as I have previously observed, the particulars of the risk. The risk is stated as involving a risk of injury from falling from a height and from a falling load by reference to a slung load of flooring being lowered by mobile crane onto a second storey deck area consisting of unsecured timber joists "and where that load placed pressure on the timber joists, thus causing the unsecured joists to give way and collapse." Accordingly, the risk of injury particularised within the charge brought against this defendant in these proceedings contains within it as an essential element the fact that the load placed pressure on the joists thus causing them to give way and collapse. I should emphasise that when speaking of an essential element, I am not referring to an essential element of s 8(2) of the Act, but an essential element of the particular charge particularised against this defendant and with which this Court has been asked to deal. 94 I repeat that I am not satisfied that there is evidence that would establish that the load placed pressure on the joists and caused them to give way and collapse, either solely or in conjunction with any other force. 95 There then follows the particulars of the charge that set out a number of failures on the part of the defendant. At the conclusion of the particulars there is the following passage: As a result of the defendant's failures persons, and in particular Jamie Kirchen, were placed at risk of injury from falling from a height, and from a load falling from a crane.

[91]

The allegation therefore with which the defendant and the Court are required to deal for the purpose of these proceedings is that the failures as particularised, and with which I shall shortly deal, created a risk of injury of a person falling from a height and a risk of injury from a load falling from a crane. As I will discuss later in these reasons for judgment, it is not necessary that the prosecutor establish each and every one of these particulars in order to demonstrate guilt on the part of the defendant. It is only necessary that any one of them be established that has the relevant causal nexus with the particularised risk. 96 Particular (b) alleges a failure to ensure that there was a safe system of work for mobile crane operation activities, directed particularly to "slinging, landing and unhooking of loads." The further particularisation is directed to ensuring that there was a landing area that was "flat, smooth, continuous and otherwise secure beneath the load." This is obviously directed to the state of the first floor level which consisted of exposed joists upon which the load was placed. 97 For this particular to be made out, there must be factual material that would allow the Court to conclude that the placement of the load on the exposed joists per se caused a risk of injury as described. There is no evidence, as I have concluded, that would enable the Court to conclude that the placement of the load of itself and without anything more created a risk of falling, or, to use the language in the amended order, caused any person to be "placed at risk of injury" from falling etc. 98 Particular (c) alleges that the failure consisted of placing the load on floor joists on the first floor level in circumstances where not all of the joists had been installed across the whole floor area and were adequately secured. Again, there is simply no evidence given in the proceedings that would allow the Court to conclude that the risk as particularised was caused by the fact that the load was deposited in an area where some joists only had been installed, but not all of the joists had been installed, whether properly secured or otherwise. One would think that matters of this kind would need to be the subject of expert evidence, and no evidence was adduced about this point. Furthermore, such a failure as alleged is inconsistent with particular (b), which required the landing area to be flat, smooth and continuous. Presumably, this could only be accommodated after the flooring material, which was being loaded onto the area, had been installed. 99 I appreciate that, as previously observed, it is only necessary for the prosecutor to succeed on any one of the particulars so they can be seen to be postulated on an alternative basis. Nevertheless, some degree of "practicality" needs to be incorporated within the application of the Act, so that others operating in the building industry will understand whether flooring materials should only be placed on an area where flooring materials have already been affixed or whether it is permissible for flooring materials to be placed on exposed joists, albeit properly secured. 100 Particular (d) alleges a failure constituted in turn by a failure to ensure that there were available fall prevention measures. In that Mr Kirchen was clearly involved in the activities of the defendant and in that there was clearly a risk of falling through or from floor joists, I am satisfied on the evidence given in the proceedings that this failure, when taking its meaning as confined by the words used in (d), has been made out. However, if the "risk of falling" which is referred to in (d) is a reference back to the particulars of the risk contained in (a), which would incorporate within its terms a chain of events including collapse of the joists caused by the load placing pressure upon them, then it is arguable that this particular has not been made out. 101 Particular (e) alleges a failure to ensure that persons who were involved in the operation of the crane, the slinging of loads and the unhooking of loads should have had a certificate of competency in dogging or had been trained and employed as a dogman etc. 102 Given the state of the evidence in the proceedings, including the lack of evidence that the placement of the load upon the joists caused them to collapse, it is arguable that there is no evidence that the failures as alleged in (e) placed Mr Kirchen or any other person at risk of injury as asserted. 103 The failures particularised in (f), (g) and (h) may be dealt with in the same manner. They refer to supervision, the provision of information, instruction and training and the failure to undertake an adequate risk assessment. I repeat that, on the state of the evidence as I have found, it has not been proved that when the load was placed upon the joists it caused them to fail. It is arguable in these circumstances that there is no evidence that would allow the Court to conclude that any of these failures placed Mr Kirchen at risk of injury from falling from a height etc as alleged, especially in the context of the particulars of risk as asserted, namely one which includes a causal nexus between the collapse of the joists and the placement of the load upon them. 104 I should state for completeness that I fully appreciate that there is a fundamental difference between the essential elements of an offence and the essential particulars of a charge. It is mandatory for a prosecutor to establish the essential elements of an offence with which a defendant is charged. Failure to establish any one or more particulars of the charge will not be fatal, provided that ultimately such particular or particulars as are necessary to be established to make out the essential elements of the offence has or have been established. 105 Nevertheless, particulars have an important part to play in the administration of the criminal justice system. Because, in my experience, difficulties often arise by reason of the manner in which charges are particularised in prosecutions brought under the Act in this Court, it is important that I refer to this matter in some little detail. I had occasion to make reference to this matter in Sacco Builders Pty Ltd v Inspector Chaston [2009] NSWIRComm 153, a judgment of a Full Bench of this Court in which I was in dissent. That judgment has been quashed by the New South Wales Court of Appeal with the consent of the respondent, Inspector Chaston. (Orders made on 19 April 2010 in 40417/09). I proceed on the basis that the observations which I made in my dissenting judgment may appropriately be restated for the purpose of these proceedings. In Sacco I said: 98 Particularisation of a charge brought against a defendant is a fundamental requirement in the administration of the criminal justice system. It is a basic tenet of criminal law that a defendant and the court must at all times be made aware of the particulars of the charge that has been asserted by the prosecutor. These are the particulars of how it is asserted that the offence has been committed.

[111]

36 It might emerge when the evidence is led that some of the matters alleged as particulars did not contribute to the contravention of the statutory command on the occasion in question, that is, when the employee used the horizontal borer. It may be that the evidence will reveal that a number of the matters alleged as particulars lack the required nexus in time, place and circumstance for them to be treated as proof or part of the proof of the alleged contravention. In that event the relevant particular will not be made out. It is possible that when the evidence is heard it might tend to establish not the offence alleged, but some other breach of the statutory command that plays no part in the offence alleged. In that event, latent duplicity will have emerged and the relevant particular should be struck out, and the relevant evidence held inadmissible. 106 Since publishing my reasons for judgment in Sacco, the High Court of Australia has handed down its decision in Kirk v Industrial Court (NSW) [2010] HCA 1; (2009) 239 CLR 531. Those proceedings examined the provisions of the Occupational Health and Safety Act 1983, the predecessor to the Act. Whilst the section numbers have changed, the discussion by the High Court of the provisions of the 1983 Act are, relevantly, applicable to the provisions of the Act with which I am concerned in the context of these proceedings. 107 In describing in general terms the offences created by the relevant provisions in the 1983 Act, the majority members of the High Court said: 14 A statement of an offence must identify the act or omission said to constitute a contravention of s 15 or s 16. It may be expected that in many instances the specification of the measure which should have been or should be taken will itself identify the risk which is being addressed. The identification of a risk to the health, safety and welfare of employees and other persons in the workplace is a necessary step by an employer in discharging the employer's obligations. And the identification of a risk which has not been addressed by appropriate measures must be undertaken by an inspector authorised to bring prosecutions under the Act. But it is the measures which assume importance to any charges brought. Sections 15 and 16 are contravened where there has been a failure, on the part of the employer, to take particular measures to prevent an identifiable risk eventuating. That is the relevant act or omission which gives rise to the offence.

[113]

17 Section 53(a), in the context of proceedings for offences against ss 15 and 16, referred to the situation where it is not reasonably practicable for an employer to comply "with the provision of this Act". It is not to be understood as requiring an employer to negative the general provisions of ss 15 and 16 and to establish that every possible risk was obviated. It requires that regard be had to the breach of the provision which it is alleged constituted the offences. A breach or contravention of s 15 or s 16 is the measure not taken, the act or omission of the employer. 108 At [30], the majority members of the Court (French CJ, Gummow, Hayne, Crennan, Kiefel and Bell JJ) discussed the particularisation of charges under the former Act and in particular "particularisation of the acts and omissions said to found the charges." Their Honours commented: Without that particularisation, the Industrial Court would be placed in the position to which Evatt J referred in Johnson v Miller where it would act as "an administrative commission of inquiry" rather than undertake a judicial function. Proceeding without further particularisation of the acts and omissions said to found the charges reflected views as to the nature and extent of the duty cast upon an employer by ss 15 and 16 and the limited operation to be given to the s 53 defences. 109 Their Honours addressed this matter again at [34] where they said: Walton J referred to earlier case law that the duty imposed upon an employer "is to be construed as meaning to guarantee, secure or make certain" and that the duty is directed at obviating "risks" to safety at the workplace. References to guarantees, and emphasis upon general classes of risks which are to be eliminated, tend to distract attention from the requirements of an offence against ss 15 and 16. The approach taken by the Industrial Court fails to distinguish between the content of the employer's duty, which is generally stated, and the fact of a contravention in a particular case. It is that fact, the act or omission of the employer, which constitutes the offence. Of course it is necessary for an employer to identify risks present in the workplace and to address them, in order to fulfil the obligations imposed by ss 15 and 16. It is also necessary for the prosecutor to identify the measures which should have been taken. If a risk was or is present, the question is - what action on the part of the employer was or is required to address it? The answer to that question is the matter properly the subject of the charge. 110 I should not be taken to be asserting that in any way the particulars contained within each of the amended applications for order in these proceedings are deficient in the manner asserted by the High Court of Australia in Kirk. They are, in my opinion, clearly adequate. However, the purpose of the discussion is to emphasise that it is the charge as particularised which each of the defendants is required to meet and with which the Court is required to deal in the context of the factual matrix that has been established. 111 My review of the evidentiary material, which I have found to have been proven whether by agreement or otherwise, undertaken in the context of the manner in which the particulars of charge were framed leads me to conclude that there must considerable doubt about whether or not there is sufficient evidence to enable me to embark upon the sentencing process. I make these observations in the context of the conclusions which I have made concerning the evidence which was controversial and the impact of those conclusions on the agreed statement of facts against the overarching ingredients contained within the particulars of the charges brought against each defendant as set out in the amended applications for order. 112 There are a number of authorities that deal with the fact-finding process involved in the sentencing component in criminal proceedings. 113 The obligations imposed upon the parties in assisting the Court concerning the relevant and appropriate factual material in the context of a sentencing process were referred to by Howie J in the New South Wales Court of Criminal Appeal in R v Palu [2002] NSWCCA 381. Levine and Hidden JJ agreed with his Honour's judgment. At [21] his Honour said: 21 It behoves the parties, especially after a "plea bargain", to ensure that the sentencing court is made aware from the outset of the proceedings whether there is any dispute as to the factual basis upon which the offender is to be sentenced and identify with particularity what matters are in issue. Disputed facts are to be resolved by accusatorial process upon evidence before the court, Chow v DPP (1992) 28 NSWLR 593 at 604-608. If a statement of facts is to be tendered, it should both support the charge for which the offender is to be sentenced and accord with the offence charged. It should not contain facts that would aggravate the offence in breach of the principle in The Queen v De Simoni (1981) 147 CLR 383. If it purports to be an agreed statement of facts so that it is intended to provide the factual basis upon which the parties wish the court to sentence the offender, the facts should be sufficient to permit the court to exercise its discretion and the Crown should not tender other material which might supplement or contradict the facts set out in the agreed statement. If other material is placed before the court which relates to the facts of the offence, then the parties should understand that the court is not bound by the tendered statement of facts or any agreement made between the parties as to the basis upon which the offender is to be sentenced: Altham (1992) 62 A Crim R 126; Chow v DPP , above at 606. All too frequently, or so it seems to me, uncertainty, confusion and, sometimes, error arises because of the failure of the parties, and in particular the Crown, to clearly identify the material upon which the facts of the matter are to be gleaned by the sentencing court. So it was in the present case. 114 The fundamental importance of the fact-finding exercise in connection with the sentencing process in criminal trials was emphasised in the joint judgment of Gleeson CJ, Gaudron, Hayne and Callinan JJ in the High Court of Australia in R v Olbrich (1999) HCA 54; 199 CLR 270. At [1], their Honours said, in part: 1 The process by which a court arrives at the sentence to be imposed on an offender has just as much significance for the offender as the process by which guilt or innocence is determined. Unless the legislature has limited the sentencing discretion, a judge passing sentence on an offender must decide not only what type of penalty will be exacted but also how large that penalty should be. Those decisions will be very much affected by the factual basis from which the judge proceeds. In particular, the judge's conclusions about what the offender did and about the history and other personal circumstances of the offender will be very important. 115 I have previously extracted the discussion by their Honours concerning the onus and standard of proof in connection with the fact-finding process involved in the sentencing component of criminal proceedings at [63] above. 116 I should refer also briefly to the decision of the High Court of Australia in R v De Simoni (1981) 147 CLR 383. The Court concluded that in the circumstances of those proceedings, and in criminal proceedings generally, the sentencing process must be directed to the manner in which the charge is framed. If, for example, it is asserted by the prosecutor that the particular proceedings constitute an aggravated example of the offence, the prosecutor is required to prove the facts that establish that conclusion beyond reasonable doubt. Conclusion

[114]

117 Whilst it is clear that on the day alleged in each of the charges, and at the place so alleged, Jamie Kirchen fell from the first floor level of a construction site on which he was then working and sustained serious injuries, especially caused by being struck by falling flooring materials, and it is clear that two joists gave way causing him to fall, there is insufficient evidence before the Court to determine what was the cause or causes of the joists giving way. This circumstance needs to be considered in the context of the offence with which each of the defendants is charged. The charge is that which is set out in each of the amended applications for order. They contain particulars of the offence. It is each offence as particularised with which each defendant is being charged. Neither defendant has been charged with any other offence particularised in any other manner. 118 I have already referred to the functions fulfilled by the particularisation of an offence and the necessity for such particularisation to be given as will allow a defendant to understand the precise terms of the charge that is levelled and to enable a court to adjudicate. The particulars of the charge will identify the way in which it is said the defendant has committed the offence with which it has been charged and will establish the case that the prosecutor must make out in order to secure a conviction. Particulars when ordered and delivered will have a force and significance by virtue of the very fact that our criminal procedure provides for them. Once delivered they will have a consequence in the further conduct of the trial. Obviously they will have to be read with the terms of the indictment in defining the terms of the charge and the case which the Crown has to prove. (Per Macrossan CJ in the Queensland Court of Appeal in R v Lewis [1994] 1 QdR 613 at 624.) 119 For the reasons which I have previously given, there must be some doubt about whether or not the factual circumstances that apply to these proceedings, as contained within the agreed statement of facts and as found by me in dealing with the controversy between the parties, are sufficient to make out all or some of the particulars of the charge brought against each defendant. The conclusions that I have reached concerning the state of the evidence and the impact on the proceedings could not have been known to the parties at the time they made their submissions. In fairness they should be given an opportunity of considering and making submissions about what course the Court should now take. 120 For these reasons I stand the proceedings over to allow further submissions to be made by the parties. Administrative arrangements will be made by my associate to list the proceedings in about a month's time to allow for this to occur.

At a glance

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Judgment (115 paragraphs)

Parties

Cases Cited (18)

Cited By (1)