a) James Gowans, 20 years of age, as a general labourer.
b) Michael Mende, 31 years of age, as a concrete pump operator.
c) Mario Musumeci, 34 years of age, as a leading hand.
7. At all material times the Second Defendant owned a concrete boom pump manufactured by Powercrete Australia Pty Ltd, model number T100-177-60 ("the pump"), attached to a vehicle with registration number QSV - 987 and supplied it to the defendant for use at the site.
8. At all material times the Second Defendant provided the pump to the First Defendant, A Team Concrete (Aust) Pty Limited, for use at the site.
9. At all material times the First Defendant used the pump to perform concreting work at the site.
10. At all material times the Second Defendant owned trucks, equipment and necessary tools for concreting work and did not have any employees.
11. The Second Defendant purchased the pump from Powercrete Australia Pty Limited approximately 5 years prior to the accident. The pump was used about once a week during the six months prior to the accident and prior to that was used 3 or 4 times a week.
12. Powercrete Australia Pty Limited purchased the pump in 1997 and completely re-conditioned the boom of the pump. Following re-conditioning it was examined by a consulting engineer and certified as satisfying the requirements of AS 1418-15 1994 for concrete boom placing pumps.
13. At all material times, the First Defendant contracted with Concrete Civil Pty Ltd for the provision of labour hire workers at the site including Joseph Romeo.
14. On 11 March 2002 at approximately 7.15 am, James Gowans, Joseph Romeo, Michael Mende, Mario Musumeci and the Third Defendant were performing concreting work at the site and the pump was pouring the first concrete load of ready mixed concrete into the centre of a floor slab at the site.
15. Mr Gowans was working underneath the boom of the pump and Mr Romeo was working close to the boom of the pump when the boom connection failed at the turret of the pump unit and fell to the ground striking them both.
16. A backhoe on site was used to sling and lift the boom off Mr Gowans and Mr Romeo who were then taken by ambulance to Liverpool Hospital. Mr Gowans did not recover from the head injuries he suffered and died at approximately 7.30 pm on the same day. Mr Romeo suffered fractures to his neck, shoulder and ribs and remained in hospital for one week.
17. At the time of the accident, the pump was set up on one side of the floor slab of the building under construction at the site and the boom of the pump extended into the middle of the slab. A laser guided screed was used to perform the finishing work for the concrete surface. The boom was about 19 metres long, constructed of steel and weighed approximately 1.5 tonnes. A rubber hose was attached to the third section of the boom and measured approximately 3 metres in length. The pump was attached to a white UD Truck, with registration plate QSV-987. The truck had four outriggers attached.
18. The Third Defendant was the supervisor of the concrete pour at the site. At the time of the accident, Mr Gowans was directing the flow of concrete by holding the flexible rubber concrete drop hose attached to the end of the boom. Prior to the accident, Mr Cardile was directing the flow of the concrete by holding the hose and then directed Mr Gowans to hold the hose whilst he went to talk to the agitator driver about the concrete being too wet. Mr Romeo was using the concrete vibrator close to the boom and Mr Musumeci was watching the laser guided screed work.
19. The concrete boom pump was being operated by Mr Mende, an employee of the First Defendant, with 10 years of experience in operating such pumps. Mr Mende was operating the concrete boom pump from a cable remote unit and was adjacent to the passenger side front outrigger which enabled a full view of the outboard end of the boom.
20. The pumping of concrete using a concrete boom pump requires the pump operator to position the flexible delivery hose at a location where concrete is to be poured. A person is positioned at the end of the hose and directs the flow of concrete by directing the end of the hose in the direction that the concrete is to flow.
21. The concrete boom pump was set up in a safe fashion.
22. On 11 March 2002 Inspector Wayne James attended the site and undertook a factual inspection, a copy of which is annexed and marked "A". Inspector James also took 17 photographs at the site, copies of which are annexed and marked "B".
23. On the same date, Inspector Sharpin issued a notice to the Second Defendant under section 70 of the Occupational Health and Safety Act 2000 for the pump to be taken to the WorkCover TestSafe facility in Londonderry for testing purposes.
24. Various tests and calculations were performed on the pump and boom by David Ng, head of the Mechanic Unit, TestSafe Australia, Reza Eftekhar, engineer employed by WorkCover and Michael Cheng, engineer employed by Workcover. The tests were to address the boom metallurgical material composition, the rotational force movements and other static and induced stress forces on the boom. Rexroth Pty Ltd conducted tests on the hydraulic components of the boom.
25. An engineering report was prepared by Michael Cheng on 30 April 2002 which concluded that the boom detached from the turret of the pump unit at the main trunnion connection. This was caused by the two trunnion retaining rings fracturing. One ring had approximately 45% fatigue fracture areas and the other ring approximately 20% fatigue fracture areas which had been growing for a considerable time prior to the accident. The ring with the 45% fracture front broke first causing an immediate overload failure to the other ring and the collapse of the concrete boom assembly. Mr Cheng also concluded that a proper inspection and maintenance program should have been able to detect the cracks before they grew to a critical size. A copy of photograph number A7 from the report is annexed and marked "C".
26. Reza Eftekhar, senior engineer of WorkCover, also prepared a metallurgical engineering investigation report dated 28 April 2002. Mr Eftekhar also concluded that the immediate cause of the accident was the two fatigue fractures in the trunnion retainer rings. Mr Eftekhar believed the fractures had been in place for a long time and could have been detected via inspection by a competent person. The reason for the fractures developing was found to be the inappropriate mechanical properties of the rings due to an error in material selection during the design, manufacture or repair of the boom. This inappropriate material selected was brittle and predisposed to the initiation of fractures. Copies of Figure 1 and Figures 4 to 9 from the report are annexed and marked "D".
27. Opinion is divided as to how the presence of the cracks that caused the failure of the trunnion rings could have been detected. Mr Leonard, managing director of Concrete Pump Parts Pty Ltd, believes that a magnetic particle crack test or dye penetrant crack test undertaken by an expert is required to identify the presence of such a crack.
28. Following the accident, documents were obtained from the pump which included the WorkCover NSW Code of Practice for Pumping Concrete and a safety manual issued by Schwing America, a concrete boom manufacturer. A formal log book system was not found. Documentation was located which contained pipe thickness test results on dates between 1 June 2000 and 20 February 2002.
29. The safety manual from Schwing America includes directions to:
a) Avoid standing directly under or over the boom or the system pipeline.
b) Have the boom inspected by a certified boom inspector on a regular basis.
c) Ensure proper and timely maintenance of the boom.
d) Inspect the boom for cracks and how to test for cracks in the boom.
30. Inspector Sharpin issued a notice under section 62 of the Occupational Health and Safety Act 2000 to the Third Defendant on 20 March 2002 for all records relating to the maintenance and repair of the pump. The documents produced did not indicate that the boom had ever had a formal inspection. The only work recorded on the boom was for tyre changes and electrical wiring repairs for the chassis only.
31. The First Defendant ensured that James Gowans, Michael Mende and Mario Musumeci had undertaken the general health and safety induction training for construction work and held the relevant green card . These employees had not undertaken work activity or site specific induction training.
32. The First Defendant did not provide adequate training or instruction for the safe pumping of concrete to persons not in its employment and in particular, Joseph Romeo.
33. The First Defendant did not provide adequate training or instruction for the safe pumping of concrete to its employees and in particular, James Gowans, Michael Mende and Mario Musumeci.
34. The Second Defendant did not perform any crack testing on the pump.
35. On or about 28 February 2002, Michael Mende took the pump to Concrete Pump Parts Pty Limited for a quotation inspection for repairs. No repairs were carried out on the pump by Concrete Pump Parts Pty Limited prior to the accident.
36. The three Defendants have no prior convictions under the Occupational Health and Safety Act 2000 or the Occupational Health and Safety Act 1983.
37. The three Defendants co-operated with the WorkCover investigation to the extent that interviews were conducted with the employees of the Defendants and the Third Defendant without the need for notices to be issued under section 62 of the Occupational Health and Safety Act 2000.
24 The agreed statement of facts annexed the following:
a) a factual inspection report relating to the subject incident by Assistant Principal Inspector Wayne James dated 11 March 2002;
b) 25 colour photographs showing location of the incident, the concrete boom pump, the power to boom connection, the instrument panel of the boom pump and broken rings welded to the turret or crown trunnion structure;
c) three victim impact statements of Joseph Romeo dated 21 April 2004;
d) a victim impact statement of Ms Jade Gowans, the partner of the deceased.
25 The defendant tendered three affidavits that were read. The first was by Andrew McColm, the New South Wales State Manager of Brief Group Pty Limited. This company is an occupational health and safety consultancy that develops and assists in the implementation of occupational health and safety management systems. The second by Gregory John Torzillo the General Manager of Flowcrete Concrete Pty Ltd, a company that builds, sells, maintains and services concrete pumping equipment. The third affidavit was that of Theo George Kotselas, a practising accountant who has acted for each of the defendants for the past three years. None of the deponents were required for cross examination. The defendants also tendered the WorkCover Authority Code of Practice for pumping concrete dated 1 March 1994 and a medical certificate of Dr L Susino, the third defendant's treating doctor who was not required for cross examination.