SafeWork NSW v Arkwood - [2022] NSWDC 89 - NSWDC 2022 case summary — Zoe

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SafeWork NSW v Arkwood

[2022] NSWDC 89

District Court of NSW|2022-03-08

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Source facts

Court

District Court of NSW

Decision date

2022-03-08

Source

Original judgment source is linked above.

Judgment (58 paragraphs)

[1]

Solicitors: SafeWork NSW (Prosecutor) Barry.Nilsson.Lawyers (Defendant) File Number(s): 2020/303189

[2]

Table of Contents Introduction The Task of this Court The Elements of the Offence The Summons The Risk Reasonably Practicable Measures The Relevant Law General Principles Section 244 of the Work Health and Safety Act Reliance Upon a Specialist Contractor Evidence of Police and SafeWork Inspector Evidence of Workers at the Site Mr Kane Druce Mr Peter Voight Mr Gregory Whitford Mr Scott McIntosh Mr Geoffrey Carey Mr Malcolm Lindsay Documentary Evidence Pre-Incident Safe Work Method Statement (SWMS) Post-Incident SWMS Code of Practice 2006 Work Health and Safety Regulation 2017 (NSW) Clause 299 of the Work Health and Safety Regulation 2017 (NSW) Expert Evidence Agreed Statement of Facts Authority to Bring Proceedings Relevant Parties The Site and the Task The Incident Systems of Work Before the Incident: Wingecarribee Systems of Work Before the Incident: Arkwood Relevant Guidance Material Additional Findings of Fact Findings of Fact Relevant to Reliance on a Specialised Contractor Submissions for the Prosecutor Submissions for the Defendant Consideration of Element 1 - Whether the Defendant Owed a Duty Consideration of Element 2 - Whether the Defendant Failed to Comply with the Health and Safety Duty The Risk Reasonably Practicable - Section 18 The Likelihood of the Risk Occurring - Section 18(a) The Degree of Harm that might result in the Risk - Section 18(b) What the Defendant Knew or Ought Reasonably to Have Known - Section 18(c) Availability and Suitability of Ways to Eliminate or Minimise the Risk - Section 18(d) The Cost Associated with Available Ways of Eliminating or Minimising the Risk - Section 18(e) Delegation to a Specialised Contractor Reasonably Practicable - As Pleaded Conducting a Site-Specific Risk Assessment SWMS Joint Safety Assessment Site Induction No Crane Operations Without a Qualified Dogman Present Dogman or Spotter to Issue Warnings in Relation to the Power Lines Conclusion on Element 2 Consideration of Element 3 - Whether the Breach of Duty Exposed Workers to a Risk of Death or Serious Injury Conclusion Orders

[4]

The Task of this Court

As the judge of the facts in a trial by judge alone, as well as the judge of the law, I must find the facts and draw inferences from them as well as apply the law to the facts that I find. I must bring an open and unbiased mind to the evidence and view it clinically and dispassionately and not let emotion enter into the decision-making process. Both the prosecution and the defendant are entitled to my verdict free of partiality or prejudice, favour or ill-will. I must then deliver my verdict according to the evidence.
The prosecution bears the onus of proving the guilt of the defendant at all times. The defendant does not have to prove that it did not commit the offence charged. If the defendant does adduce any evidence which is consistent with its innocence, it does not have to prove it. It is for the prosecution to disprove it or show that it is irrelevant, otherwise the prosecution will not have proved its case. The standard of proof of the prosecution case is proof beyond reasonable doubt and the defendant cannot be found guilty of the offence unless the evidence which I accept satisfies me beyond reasonable doubt of its guilt.
The defendant is presumed by law to be innocent of the offence unless and until the evidence I accept satisfies me that each and every element of the relevant charge has been proved beyond reasonable doubt. The defendant then loses the presumption of innocence and I must find it guilty. If, however, the evidence which I accept fails to satisfy me beyond reasonable doubt of any or all of the elements of any offence charged then it remains presumed innocent and I must find a verdict of not guilty. If I am satisfied that there may be an explanation consistent with the innocence of the defendant of the charge, or I am unsure of where the truth lies, then I must find the charge has not been proved to the standard of proof required by law and I must find the defendant not guilty.
I must determine whether each of the witnesses is a reliable witness ie whether I can rely on the evidence that the witness gives and so find the facts about which the witness has given evidence. I can accept part of the evidence of a witness and reject part of that evidence or accept or reject it all. I must determine the facts in accordance with the evidence, considered logically and rationally, without acting capriciously or irrationally but I may use my common sense, experience and wisdom in assessing the evidence.
My judgment must include the principles of law applied and the findings of fact relied upon: s 133(2) Criminal Procedure Act 1986 (NSW).

[6]

The Summons

The Summons filed on 22 October 2020 particularises the date of the offence as 25 October 2018 and the place of the offence as Moss Vale Sewerage Treatment Plant, Kennedy Close, Moss Vale, in New South Wales.
Paragraphs 1-12 of the Summons set out the background facts which the prosecutor seeks to prove as follows: "1. The defendant, Arkwood (Gloucester) Pty Limited, being a corporation, was a person conducting a business or undertaking within the meaning of the Act. 2. At all material times, the defendant's business or undertaking was the management of biosolids and included the dewatering of a settlement pond at Moss Vale Sewerage Treatment Plant, Kennedy Close, Moss Vale, New South Wales (the site). The defendant carried out this process by placing a centrifuge and pontoon up on the surface of the pond and removing biosolids which were then transported via truck from the site (the task). The site was a workplace for the purposes of section 8 of the Act. 3. The defendant was subcontracted by Wingecarribee Shire Council, the principal contractor, to undertake works at the site. 4. The defendant engaged Mr Nigel Bennett (Mr Bennett), a sole trader under the trade name of Highlands Cranes to provide crane services at the site, including provision of a mobile crane and crane driver. The words "crane driver" and "crane operator" were used interchangeably throughout the hearing. Both refer to the tasks being conducted by Mr Druce on the day of the incident. 5. Mr Peter Voight (Mr Voight) and Mr Gregory Whitford (Mr Whitford) were workers employed by the defendant and undertaking work at the site. 6. Mr Voight and Mr Whitford were engaged, or caused to be engaged, by the defendant, as they were employees of the defendant. 7. Mr Voight and Mr Whitford's work was influenced or directed by the defendant as they were employees of the defendant. 8. Mr Kane Druce (Mr Druce) was employed by Mr Bennett as a dogman. 9. Mr Druce was engaged or caused to be engaged by the defendant as he was undertaking work for a subcontractor of the defendant at the site. 10. Mr Druce's work was influenced or directed by the defendant as he was undertaking work related to the task at the site. 11. On 25 October 2018 Mr Voight and Mr Whitford were at work in the defendant's business or undertaking in that they were centrifuge operators dismantling a centrifuge at the site and loading it onto a flatbed truck, with the use of a mobile crane, so it could be removed from the site. 12. On 25 October 2018 Mr Druce was at work in the defendant's business or undertaking in that he was operating a mobile crane as part of the conduct of the task at the site."

[8]

Reasonably Practicable Measures

Paragraph 14 of the Summons pleads particulars of the defendant's failure to comply with the duty under s 19(1) of the Act as follows: "14. The defendant failed to ensure, so far as is reasonably practicable, the health and safety of workers, in particular, Mr Voight, Mr Whitford and Mr Druce, in that it failed to take one or more of the following measures, each of which is alleged to have been reasonably practicable, to eliminate, or alternatively minimise, if it was not reasonably practicable to eliminate, the risk: a. Conduct a site specific risk assessment for the task to identify the hazards at the site, including the presence of the high voltage power lines transversing the site and that mobile cranes would be required to operate on the site, and identify control measures to eliminate or minimise the risk; b. Develop and implement a Safe Work Method Statement (SWMS) or safe work procedure for the task and train workers in the procedure, which included instructions to: i. Assess the height and voltage of the overhead powerlines in order to determine a safe approach distance to the overhead powerlines whilst undertaking the task, and ensure that the safe approach distance determined is appropriate for the level of accreditation of the workers, and/or ii. Use, where reasonably practicable, a mobile crane or other plant that is not high enough, even when fully extended, to come into contact with, or in close proximity to, the overhead powerlines, and/or iii. Disassemble the centrifuge away from the overhead powerlines so that the boom of a mobile crane could not come into contact with, or in close proximity to, the overhead powerlines, and/or iv. Discontinue the work near to the overhead powerlines until a qualified dogman and/or spotter was available to observe the task and warn other workers so as to ensure the safe approach distances are being maintained, and/or v. Use appropriate personal protective equipment (PPE) such as gloves and suitable footwear, and/or vi. Follow and implement the checklist provided to workers prior to commencing the task that required cranes to always operate with a qualified dogman, and/or vii. Report to more senior employees at any point during completion of the task where the task could be considered high risk, in order for the more senior employee to direct the workers through the checklist provided to workers prior to commencing the task. c. Require and confirm that prior to crane work being undertaken that all employees engaged in the work together with any employees engaged or caused to be engaged to undertake the cranage work meet and complete a joint safety assessment of the work; d. Confirm workers engaged or caused to be engaged to undertake the task underwent a site induction prior to commencing work at the site; e. Require that workers engaged or caused to be engaged to undertake the task of crane works are suitably qualified prior to work being performed; f. Instruct workers that crane works were not to be commenced at the site without a qualified dogman present to undertake dogman duties; g. Require and confirm a qualified dogman or spotter was tasked with identifying the location of the powerlines and issue warnings in regard to the position of a mobile crane and the powerlines prior to crane work commencing."
Paragraphs 15-16 of the Summons plead that as a result of the defendant's failures, Mr Voight, Mr Whitford and Mr Druce were exposed to a risk of death or serious injury and the injuries suffered by Mr Voight and Mr Whitford were a manifestation of the risk.

[9]

General Principles

The objects clause in s 3 of the Act provides: "(1) The main object of this Act is to provide for a balanced and nationally consistent framework to secure the health and safety of workers and work places by - (a) protecting workers and other persons against harm to their health, safety and welfare through the elimination or minimisation of risks arising from work or from specified types of substances or plant, and … (h) maintaining and strengthening the national harmonisation of laws relating to work health and safety and to facilitate a consistent national approach to work health and safety in this jurisdiction. (2) In furthering subsection (1)(a), regard must be had to the principle that workers and other persons should be given the highest level of protection against harm to their health, safety and welfare from hazards and risks arising from work or from specified types of substances or plant as is reasonably practicable."
The offence is one of strict liability: s 12A of the Act.
The content of the duty is set out in s 19 of the Act which provides: "(1) A person conducting a business or undertaking must ensure, so far as is reasonably practicable, the health and safety of - (a) workers engaged, or caused to be engaged by the person, and (b) workers whose activities in carrying out work are influenced or directed by the person, while the workers are at work in the business or undertaking. (2) A person conducting a business or undertaking must ensure, so far as is reasonably practicable, that the health and safety of other persons is not put at risk from work carried out as part of the conduct of the business or undertaking. (3) Without limiting subsections (1) and (2), a person conducting a business or undertaking must ensure, so far as is reasonably practicable - (a) the provision and maintenance of a work environment without risks to health and safety, and … (c) the provision and maintenance of safe systems of work, and (d) the safe use, handling, and storage of plant, structures and substances, and … (f) the provision of any information, training, instruction or supervision that is necessary to protect all persons from risks to their health and safety arising from work carried out as part of the conduct of the business or undertaking, and (g) that the health of workers and the conditions at the workplace are monitored for the purpose of preventing illness or injury of workers arising from the conduct of the business or undertaking."
The meaning of "worker" is dealt with by s 7(1) of the Act which provides: "(1) A person is a worker if the person carries out work in any capacity for a person conducting a business or undertaking, including work as - (a) an employee, or (b) a contractor or subcontractor, or (c) an employee of a contractor or subcontractor, or (d) …"
Section 16 of the Act provides that more than one person can have a duty, and says: "(1) More than one person can concurrently have the same duty. (2) Each duty holder must comply with that duty to the standard required by this Act even if another duty holder has the same duty. (3) If more than one person has a duty for the same matter, each person - (a) retains responsibility for the person's duty in relation to the matter, and (b) must discharge the person's duty to the extent to which the person has the capacity to influence and control the matter or would have had that capacity but for an agreement or arrangement purporting to limit or remove that capacity."
Section 17 of the Act deals with the management of risks and provides: "A duty imposed on a person to ensure health and safety requires the person - (a) to eliminate risks to health and safety, so far as is reasonably practicable, and (b) if it is not reasonably practicable to eliminate risks to health and safety, to minimise those risks so far as is reasonably practicable."
The word "risk" is not defined in the Act. Risk should not be interpreted in a complicated fashion. Safety cannot be ensured if a risk is present. The presence of a risk to the health or safety of a worker constitutes a breach of s 19 of the Act. It is not necessary that there be a particular accident, or that a person is actually injured. What is required is the creation of the risk. The relevant risk for the commission of the s 32 offence is a risk of death or serious injury: s 32(c) of the Act.
An incident causing injury may be evidence of the presence of a risk and may be relevant in due course to sentencing as a measure of the severity of the harm suffered as a result of the risk. But a distinction must be drawn between the specific risk that manifested in the incident and the general class of risk that the analysis must focus on. Paying too close attention to the specific risk resulting in an incident can lead to error: Tangerine Confectionery Ltd and Veolia ES (UK) Ltd v R [2011] EWCA Crim 2015.
The prosecution bears the onus of proving as an element of the offence that at the time of the offence it was reasonably practicable to ensure the health and safety of the persons alleged to be at risk. The risk should be identified with sufficient precision to determine if it was reasonably practicable to eliminate the risk, or if not, it was reasonably practicable to minimise it. In this way the application of reasonable practicability may arise more than once.
"Reasonably practicable" is defined in s 18 of the Act which provides: "In this Act, reasonably practicable, in relation to a duty to ensure health and safety, means that which is, or was at a particular time, reasonably able to be done in relation to ensuring health and safety, taking into account and weighing up all the relevant matters including - (a) the likelihood of the risk concerned occurring, and (b) the degree of harm that might result from the risk, and (c) what the defendant knows, or ought reasonably to know, about; (i) the hazard or the risk, and (ii) ways of eliminating or minimising the risk, and (d) the availability and suitability of ways to eliminate or minimise the risk, and (e) after assessing the extent of the risk and the available ways of eliminating or minimising the risk, the cost associated with available ways of eliminating or minimising the risk, including whether the cost is grossly disproportionate to the risk."
The state of knowledge applied to the definition of reasonably practicable is objective. It is that possessed by persons generally who are engaged in the relevant field of activity and not the actual knowledge of a specific defendant in particular circumstances: Laing O'Rourke (BMC) Pty Ltd v Kirwin [2011] WASCA 117 at [33].
The reasonably practicable requirement applies to matters which are within the power of the defendant to control, supervise and manage: Slivak v Lurgi (Australia) Pty Ltd [2001] HCA 6; (2001) 205 CLR 304 at [37] per Gleeson CJ, Gummow and Hayne JJ.
The s 19 duty requires knowledge of the risk emanating from the activities of the defendant: Slivak. Foreseeability of the risk to persons from the activity is an element of this question of knowledge. It would not generally be practicable to take measures to guard against a risk to safety that was not reasonably foreseeable: Genner Constructions Pty Ltd v WorkCover Authority of New South Wales [2001] NSWIRComm 267; (2001) 110 IR 57 at [68].
The reasonable foreseeability of an incident is relevant to whether the pleaded measures were reasonably practicable, but is not necessarily determinative: Orr v Hunter Quarries Pty Ltd [2022] NSWCCA 39.
The statutory duty is not limited to simply preventing foreseeable risks of injury. The duty is to protect against all risks if that is reasonably practicable. Reasonably practicable means something narrower than physically possible or feasible: Slivak at [53] per Gaudron J.
The words "reasonably practicable" indicate that the duty does not require a defendant to take every possible step that could be taken. The steps to be taken in the performance of the duty are those that are reasonably practicable for the employer to achieve the provision of and maintenance of a safe working environment. Bare demonstration that a step might have had some effect on the safety of a working environment does not, without more, demonstrate a breach of the duty: Baiada Poultry Pty Limited v The Queen [2012] HCA 13; (2012) 246 CLR 92 at [15] and [38] per French CJ, Gummow, Hayne and Crennan JJ.
Evidence of actions taken by a defendant after the incident is admissible on the question of whether the steps particularised in the Summons were reasonably practicable: Poletti Corporation Pty Limited v SafeWork NSW [2020] NSWCCA at [9] and [35].
An employer must have a proactive approach to safety issues. The question is not did the employer envisage a particular danger, but rather should it have: WorkCover Authority of New South Wales v Kellogg (Aust) Pty Ltd [1999] NSWIRComm 453.
A defendant must have regard not only for the ideal worker but also for one who is careless, inattentive or inadvertent: Dunlop Rubber Australia Ltd v Buckley [1952] HCA 72; (1952) 87 CLR 313 at 320 per Dixon CJ. If there is a foreseeable risk of injury arising from the employee's negligence in carrying out his or her duties then this is a factor which the employer must take into account: Smith v Broken Hill Pty Ltd [1957] HCA 34; (1957) 97 CLR 337 at 343. It may not always be possible to foresee various acts of inadvertence by workers but defendants must conduct operations on the basis that such acts will occur and they must be guarded against to the fullest extent practicable.
The prosecution must prove that the act or omission of the defendant was a significant or substantial cause of the worker being exposed to the risk of injury: Bulga Underground Operations v Nash [2016] NSWCCA 37 at [127].
The question is to be determined by the application of common sense to the facts, bearing in mind that the purpose of the inquiry is to attribute legal responsibility in a criminal matter: Royall v The Queen [1991] HCA 27; (1991) 172 CLR 378.
Regard must be had to the scope and objects of the Act: Simpson Design and Associates Pty Ltd v Industrial Court of New South Wales [2011] NSWCA 316 at [79]-[102]. The relevant question is not whether the particularised failures of the defendant were the cause of the death or injury, but rather whether there was a causal relationship between the act or omission and the risk to which a worker was exposed: Bulga at [130].

[10]

Section 244 of the Work Health and Safety Act

Part 13 of the Act deals with legal proceedings. Division 4 deals with offences by bodies corporate. Section 244 of the Act provides: "Imputing Conduct to Bodies Corporate (1) For the purposes of this Act, any conduct engaged in on behalf of a body corporate by an employee, agent or officer of the body corporate acting within the actual or apparent scope of his or her employment, or within his or her actual or apparent authority, is conduct also engaged in by the body corporate."
In Landmark Roofing Pty Ltd v SafeWork NSW [2021] NSWCCA 95 the Court of Criminal Appeal explained the operation and scope of s 244 as follows: "81 As set out in s 244(1), conduct of an employee acting within the actual or apparent scope of his employment is conduct also engaged in by the body corporate, being the appellant. It is not necessary to consider whether he was acting within his actual or apparent authority because Mr Dart was an employee of the appellant, rather than an independent contractor or agent. 82 The appellant submits that: (1) having regard to Mr Dart's experience, training and previous conduct, his conduct on the day was not foreseeable; and (2) Mr Dart must be considered to have knowingly taken only one rope onto the roof and decided not to hook up and not direct Mr Asser to hook up. This is said to be deliberate disobedient conduct which the appellant submits is outside the attribution function of s 244. 83 Mr Glissan was unable to provide any case in support of the proposition which he advances, which is really that in circumstances in which a site supervisor on a building site fails to follow the instructions of his superior (in this case, the managing director) deliberately, then the company would not be liable for his conduct and s 244 should not be construed in a way as to render it so liable. 84 Section 244 is clear in its terms. Any conduct engaged in by an employee acting within the actual or apparent scope of his or her employment is conduct also engaged in by the body corporate for the purposes of the WHS Act. There is no limitation in s 244 on the type of employee or the level of authority that the employee might have. 85 The only limitation expressed in s 244 is that it must be conduct engaged in on behalf of a body corporate by an employee acting within the actual or apparent scope of his or her employment. 86 As part of its submissions, the appellant emphasises that Mr Dart's conduct was deliberate and disobedient, rather than careless, inattentive, inadvertent or negligent. It submits that such deliberate and disobedient conduct was not foreseeable, referring, in particular, to WorkCover Authority of New South Wales (Inspector Childs) v Kirk Group Holdings Pty Limited and Anor per Walton J VP at [129] as follows: '… the unforeseeable behaviour of a disobedient employee may well lead to the happening of an event that could not be reasonably foreseen, and, therefore, which was not reasonably practicable for an employer to guard against.' 87 His Honour's observations relate to the question of breach and foreseeability. In my view, whether or not an employer might foresee that an employee might act in complete disobedience of his instructions and whether or not such conduct is foreseeable, does not impact upon the application of s 244. 88 There is no qualification to s 244(1) to the effect that if the conduct of the employee, in this case, Mr Dart, was not foreseeable (as the appellant asserts), s 244 would not apply. Section 244 has the effect of attributing the conduct of one person to another, having regard to their relationship, not having regard to employer's state of knowledge of the possibility of the conduct occurring. 89 Further, the general proposition that deliberate disobedience of an instruction by an employee (at any level) on a building site is not foreseeable on the part of an employer might be viewed as novel. 90 The question is not whether the appellant could have foreseen that Mr Dart would act in the way that he did but merely whether in acting the way in which he did, Mr Dart was engaged in conduct within the actual or apparent scope of his employment. 91 If so, then that conduct is deemed to have been engaged in by the appellant and the appellant may be liable for a breach of s 32 WHS Act, even if only because of that conduct."

[11]

Reliance Upon a Specialist Contractor

Counsel for the defendant submitted that Arkwood had engaged a specialist crane contractor and that it was entitled to rely upon that contractor to carry out cranage safely. Further, it was submitted that it was not necessary or reasonably practicable for Arkwood to be involved in determining how the crane should be operated in a safe fashion. Such a submission took up my discussion of these matters in a previous decision in SafeWork NSW v McConnell Dowell Constructors (Aust) Pty Limited (No. 2) [2020] NSWDC 668 at [58]-[78]. Counsel in the present case accepted that my previous decision correctly stated the law. In that earlier decision I said: "58 An admission was made that the defendant was the principal contractor at the BFH site. Brady Marine was a specialist contractor in marine piling and a specialist contractor in working from and on a barge. Brady Marine provided evidence of its extensive written safety system to the defendant. In those circumstances, it was submitted that the defendant was entitled to rely upon Brady Marine for the maintenance and proper implementation of those systems. Further, it was submitted that it was not reasonably practicable for the defendant to be involved in any capacity in the application of those systems to every aspect of the work performed on the Maeve Anne by Brady Marine (MFI 22, par 22). 59 Reference was made to several decided cases which have considered the duty imposed upon a principal contractor, when there is a specialist sub-contractor on site carrying out specialised work. 60 In Hamersley Iron Pty Ltd v Robertson (Unreported, Supreme Court of Western Australia, Steytler J, 2 October 1998), the facts were that a worker was killed when a reclaimer, which is a specialised piece of mining equipment, collapsed. 61 A magistrate had convicted the appellant of a breach of s 9(1)(a) of the Mines Safety and Inspection Act 1994 (WA). That section provided as follows: 'An employer must, so far as is practicable, provide and maintain at a mine a working environment in which that employer's employees are not exposed to hazards and, in particular, but without limiting the generality of that general obligation, an employer must - (a) provide and maintain workplaces, plant, and systems of work of a kind that, so far as is practicable, the employer's employees are not exposed to hazards …' 62 On appeal Justice Steytler of the Supreme Court of Western Australia said (at p 19): 'It seems to me that s 9, in requiring an employer, so far as is practicable, to provide a safe working environment, imposes a duty, personal to the employer, not only to do what is reasonably practicable for the purposes of obtaining that objective in the course of its own activities but to ensure, where that is reasonably practicable, that reasonable care is taken by subcontractors whose assistance is necessary in circumstances in which their failure to take such care might expose employees of the employer to hazards. However that cannot mean that an employer can never rely upon what is done by a suitably qualified expert engaged by it.' 63 At p 20 his Honour said: 'Here, the personal duty imposed upon the employer is, as I have said, that of providing a safe workplace, so far as is practicable. If that, in turn, requires the employer to call upon expertise which it does not itself have then there is no reason why it should not do so and, indeed, every reason why it should. Moreover, in considering whether it did what it could, so far as was practicable, to ensure that those upon whom it relied in turn exercised reasonable care, its own lack of expertise (if any) and the expertise of the independent contractor must be taken into account. If the task undertaken by the independent contractor is one which demonstrably falls within its area of expertise and outside that of the employer and if the task reasonably appears to the employer, who has such knowledge of the matters specified in s 9(1)(b) of the Act as might be expected to be had by employers of its kind, to have been carefully and safely performed by the independent contractor then it would ordinarily be difficult to conclude that the employer had breached the duty put upon it by the Act. It would not, in circumstances of that kind, ordinarily have been practicable for it to have done more.' 64 The court was also referred to the decision of the Court of Appeal of the Supreme Court of Western Australia in Laing O'Rourke (BMC) Pty Ltd v Kirwin [2011] WASCA 117. The case involved risk which arose when damage was done to residential units, known as "dongas", caused when Cyclone George passed across the Pilbara coast in Western Australia in March 2007. The appellant (Laing O'Rourke) had engaged Pilbara Infrastructure Pty Ltd to construct a railway line associated with an iron ore mine and a port. The dongas were located in a camp (known as RV1) for the workers engaged on the building of the railway line. Laing O'Rourke had not constructed the facilities at the camp. That had been done by a building company in accordance with plans and specifications approved by the local authority. Those plans and specifications contained a significant error. The buildings were not strong enough to withstand the wind load of a cyclone, such as could be expected in that area. The dongas were not designed or built to withstand winds of the force required by the Australian Standard for the relevant location. The foundations of the dongas were structurally deficient. 65 The court noted that s 19(1) of the Western Australian legislation required an employer, so far as is practicable, to provide and maintain a working environment in which the employees of the employer are not exposed to hazards. The word "practicable" was defined in the legislation to mean reasonably practicable having regard to certain prescribed matters. 66 The Court of Appeal said at [31] that the words 'reasonably practicable' are ordinary words, bearing their ordinary meaning which simply called for the making of a value judgment in the light of all the facts: Slivak at 322 per Gaudron J. 67 The Court of Appeal approved the decision of Justice Harper in Holmes v R E Spence & Co Pty Ltd (1992) 5 VIR 119 at 123-124 where his Honour said of an equivalent Victorian provision: 'The Act does not require employers to ensure that accidents never happen. It requires them to take such steps as are practicable to provide and maintain a safe working environment. The courts will best assist the attainment of this end by looking at the facts of each case as practical people would look at them: not with the benefit of hindsight, nor with the wisdom of Solomon, but nevertheless remembering that one of the chief responsibilities of all employers is the safety of those who work for them.' 68 The Court of Appeal noted at [35] that the duty, so far as is practicable, to maintain a safe workplace may involve a consideration of matters which are beyond the employer's own area of expertise. The employer's lack of direct control over such matters may affect its knowledge and, in consequence, the question of what was reasonably practicable in the circumstances. 69 The Court of Appeal at [35] quoted with approval the following passage from R v Associated Octel Ltd [1994] 4 All ER 1051 at 1063: '… the question of control may be very relevant to what is reasonably practicable. In most cases the employer/principal has no control over how a competent or expert contractor does the work. It is one of the reasons why he employs such a person - that he has the skill and expertise, including knowledge of appropriate safety precautions which he himself may not have. He may be entitled to rely on the contractor to see that the work is carried out safely, both so far as the contractor's workmen are concerned and others, including his own employees or members of the public; and he cannot be expected to supervise them to see that they are applying the necessary safety precautions. It may not be reasonably practicable for him to do other than rely on the independent contractor. But there are cases where it is reasonably practicable for the employer to give instructions how the work is to be done and what safety measures are to be taken … The question of what is reasonably practicable is a matter of fact and degree in each case.' 70 The Court of Appeal acquitted Laing O'Rourke as there was nothing to indicate to it, prior to the accident, that the dongas were unsuitable for use as a safe refuge during a cyclone. There was nothing to suggest to a reasonable employer that it should have appreciated or foreseen that the accommodation was not properly designed and built to withstand the weather conditions of a cyclone. The dongas had been built for a reputable and competent organisation with good quality control and had met the requirements of the local authority, including in relation to building standards for cyclone-affected areas. Laing O'Rourke was a construction engineer but not a structural engineer. It did not have the expertise to assess the suitability of the dongas for cyclonic conditions. There was no evidence that even if they had enquired about the construction of the dongas, they would have been told anything other than that they had been constructed in accordance with plans and specifications approved by the Shire and applicable building standards. There was no evidence that Laing O'Rourke could have inspected the dongas before occupying the residential camp. 71 The court was also referred to a case involving the same cyclone and the same dongas. This was Kirwin v The Pilbara Infrastructure Pty Ltd [2012] WASC 99. Many of the authorities considered in Laing O'Rourke were again recited. The Pilbara Infrastructure Pty Ltd was in a different position to Laing O'Rourke, because it was a principal, and it had entered into a contract for the construction of the dongas. 72 In Pilbara Infrastructure Justice Hall said at [108]: 'It is useful to note in this context that the fact of making assumptions is not itself inappropriate; it is the circumstances in which any such assumptions are made that may be relevant in determining whether an employer or principal has done all that is reasonably practicable in the circumstances. It is unlikely to be enough for a person to merely assume that someone else will attend to safety requirements, but if such an assumption is based upon inquiries made, assurances given, a reasonable belief as to the skills of those responsible for construction and a reasonable belief that regulatory approval has been obtained for the buildings, it may be well-founded.' (Emphasis added) 73 Justice Hall also said at [110]: 'The duties of the respondents in the present case cannot be equated with the appellant in Laing O'Rourke v Kirwin. As I have noted, the respondents contracted to have RV1 constructed. This meant that they had some level of control over what was built and who built it. Since RV1 was always intended to accommodate workers and to provide a safe refuge for them, there was a duty to ensure that, so far as was reasonably practicable, the camp was built in such a way as to guard against risks of harm. Whether that duty was breached depends upon an assessment of the circumstances pertaining to the respondents.' (Emphasis added) 74 The following principles can be extracted from these cases: (1) The legislation imposes a duty on a PCBU not only to do what is reasonably practicable to ensure safety, but to take reasonable care that sub-contractors whose assistance is necessary do not expose workers to hazards. (2) A PCBU can call upon expertise which it does not itself have, and its own lack of expertise (if any) and the expertise of the independent contractor must be taken into account. (3) If the task is one which demonstrably falls outside the expertise of the PCBU, and if it appears that the independent contractor has been carefully and safely performing its work, then it would ordinarily be difficult to conclude that the PCBU has breached the duties imposed upon it by the legislation; it would not, in circumstances of that kind, ordinarily have been practicable for the PCBU to have done more. (4) The court must look at the facts of each case, not with the benefit of hindsight, nor with the wisdom of Solomon, but remembering that one of the chief responsibilities of the PCBU is the safety of those who work for it. (5) The question of control over the contractor is relevant to the determination of what is reasonably practicable. (6) If a PCBU engages a person who has the skill and expertise, including knowledge of appropriate safety precautions which the PCBU itself may not have, the PCBU may be entitled to rely on the contractor to see that the work is carried out safely. (7) However, there are cases where it is reasonably practicable for the employer to give instructions how the work is to be done and what safety measures are to be taken. (8) It is unlikely to be enough for a person to merely assume that someone else will attend to safety requirements, but if such an assumption is based upon inquiries made, assurances given, and a reasonable belief as to the skills of the contractor, it may be well-founded. (9) The question of what is reasonably practicable is a matter of fact and degree in each case. 75 In considering the duty to be imposed upon a principal contractor, it is necessary to keep in mind s 16 of the Act which provides that more than one person can have a duty and that each duty holder must comply with that duty to the standard required by the Act, even if another duty holder has the same duty. Section 16(3)(b) requires the court to consider 'the extent to which the person has the capacity to influence and control the matter'. 76 The prosecutor referred to cl 315 of the Work Health and Safety Regulation 2011 (NSW). The clause requires the principal contractor for a construction project to manage risks to health and safety associated with the storage, movement and disposal of construction materials and waste at the workplace. There is a Note at the foot of cl 315 giving a reference to s 20 of the Work Health and Safety Act 2011. Section 20 of the Act provides that a person with the management or control of a workplace must ensure, so far as is reasonably practicable, that anything arising from the workplace is without risk to the health and safety of any person. 77 As senior counsel for the defendant pointed out, the defendant is not being prosecuted for a breach of cl 315 of the Work Health and Safety Regulation 2011 or of s 20 of the Work Health and Safety Act 2011. Nor do those provisions impose an absolute duty upon a principal contractor. The prosecutor acknowledged that those provisions still left room for the defendant to argue that it sought to manage the risk by reliance upon Brady Marine (MFI 29, par 47). 78 Because the question of what is reasonably practicable in the context of a principal contractor and a sub-contractor with specialised skill is a matter of fact and degree, I will defer further consideration of the duties of the defendant in its role as a principal contractor until after I have recorded my findings of fact later in this judgment."

[12]

Evidence of Police and SafeWork Inspector

Senior Constable Miller of Moss Vale Police Station attended the scene of the incident on 25 October 2018, along with his colleague Constable Muir. He gave evidence that his main aim on the day was to find a landing spot for a helicopter which was taking Mr Voight to hospital. He spoke to the crane operator (Mr Druce) and "a few witnesses that actually didn't witness what happened but assisted in after the incident".
Senior Constable Miller took photographs which are reproduced in PX 1, Tab 3. The photograph numbered 7 looks upwards towards the boom of the crane which has been raised to a point very close to the overhead power lines.
The photograph numbered 8 has been taken from the back of the crane showing the boom raised at about 45 degrees. Chains are connected from the hook of the crane to the conveyer belt which was due to be lifted when the incident occurred.
Photograph numbered 9 shows two chains and hooks attached to the conveyor belt, which is suspended above the ground.
Photograph numbered 10 shows the crane from side on. The boom is fully extended at an angle of about 45 degrees. The top of the boom is adjacent to the power lines. The hook is a considerable distance below the boom. Connected to the hook are two chains which in turn are connected to the conveyor belt, which sits on the ground. In the background can be seen some of the emergency services personnel.
I accept the evidence of Senior Constable Miller.
Inspector Baldwin from SafeWork NSW was based at the Goulburn office and attended the site on the day after the incident. He served a Notice under the Act upon the police and obtained some photographs taken by the police the previous day. When Inspector Baldwin attended the scene he spoke to Mr Druce, Mr Bennett, and a person named "Scott" from Arkwood.
Inspector Baldwin also caused photographs to be taken. These are reproduced in PX 1, Tab 5. The crane had already been moved back from under the power lines and the boom had been lowered. White markings were placed on the ground to indicate where the tyres of the crane were at the time of the incident.
Inspector Baldwin issued an Improvement Notice to Arkwood under the Act, which is to be found at PX 1, Tab 8, pp 1-3.
The Notice directed Arkwood as follows: "1. You must eliminate the risk associated with dismantling of the centrifuge. Where this is not reasonably practicable you must minimise the risk, so far as reasonably practicable, by: - reviewing your current systems of work and updating them as required. 2. You must provide training to your workers on any identified changes to your systems of work."
Steps were taken by Arkwood, which are discussed below. Inspector Baldwin was satisfied with those steps and he "complied" the Notice.
I accept the evidence of Inspector Baldwin.

[13]

Mr Kane Druce

Mr Druce attended the site on one occasion before the day of the incident. He had worked as a dogman on that occasion. The crane operator was Mr Nigel Bennett, the principal of Highlands Cranes.
On 25 October 2018 Mr Bennett asked Mr Druce to drive the crane to the site. It was a Franna crane. A Franna crane is a wheeled heavy vehicle with an extendable boom. After a load is picked up, the vehicle can then be driven to deposit the load elsewhere. They are called "pick and carry" cranes. Mr Druce had a heavy vehicle licence which entitled him to drive the crane on the road to the site. Mr Druce introduced himself to two workers performing tasks with the conveyor belt. They discussed what needed to be lifted and they discussed where various parts were to be placed on the semi-trailer, to be taken away. Mr Druce understood that the task was to dismantle the conveyor and load it onto the semi-trailer.
Mr Bennett had only asked Mr Druce to drive the crane to the site. When he arrived Mr Bennett was not at the site. Mr Druce rang him and Mr Bennett said that he was running late. Mr Druce gave evidence that Mr Bennett said that the two men working with the conveyor belt had dogman and crane tickets and had been doing it for 20 or 30 years and had done this job hundreds of times. Mr Bennett told Mr Druce that the men would do the dogging work until he got there.
Mr Druce said that he operated the crane while the two men were hooking up the loads. This was done with the chains. The two men directed him where they wanted the crane positioned while they hooked up the loads. Mr Druce said that they directed him with hand signals. Two items were moved onto the truck prior to dealing with the large conveyor belt which was going to be lifted onto the semi-trailer.
Mr Druce said that once the conveyor was hooked up he was signalled by the men to "jib up". This meant lifting the boom of the crane rather than simply raising the hook towards the boom. Mr Druce said that when he raised the boom it struck the power lines. One of the men was holding on to the conveyor belt and the other one was standing to its side. He said the men were electrocuted. He rang the ambulance and shut the crane down. Mr Bennett came to the site within what seemed like a few seconds. He arrived during the phone call which Mr Druce was making to the emergency services.
Mr Druce said, by reference to the photograph at pp 7-10 of PX 1, Tab 3, that the boom was extended all the way out when it was raised and touched the power lines.
Mr Druce attended the site on the day after the incident to speak to the SafeWork inspector.
It is common ground that Mr Druce did not have a licence to drive the crane or a dogman's licence on the day of the incident. He received training after the incident and obtained a crane licence. He is still employed as a crane operator. Mr Druce said that he would now do the operation of lifting the conveyor belt completely differently, with the licence and knowledge that he now has. He said he would keep the load as low as possible, the chains as short as possible and the hook as close to the jib as possible.
In cross-examination Mr Druce said that he was directed by Mr Bennett to drive the crane to the site. He said that everyone was wanting to work, and the two men told him that they had been doing this job for years. Mr Druce then contradicted himself and agreed that it was Mr Bennett who told him by telephone that the two men were experienced dogmen who had been doing the job for 25 years. Mr Druce had not told the SafeWork inspector that the two men told him either that they were dogmen, or that they were competent to hook up the loads for him.
Mr Druce said that on the day of the incident he had a discussion with Mr Voight and Mr Whitford about the fact that there were power lines nearby. He discussed how he was going to operate the crane taking into account that there were power lines on site. Mr Druce acknowledged that it was his job as the crane operator to determine where the crane was set up to work. Mr Bennett had said to him that he was only going to be a few minutes late and that Mr Druce should start operating the crane until Mr Bennett arrived.
Mr Druce acknowledged that he had little or no experience in operating the crane. He was asked whether he told Mr Voight and Mr Whitford that he did not have a licence to operate the crane and his answer was that he could not recall what he said on the day.
In cross-examination Mr Druce said that the two men were directing him on exactly what they wanted him to do. They gave signals for hooking down or turning left or right. When it was suggested to Mr Druce that he had operated the crane incorrectly, he said on many occasions that he operated the crane in accordance with the signals from the two men. He reiterated that he could recall being given a signal to jib up just before the two men were electrocuted. Mr Druce could not remember whether he was reversing backward at the time the crane contacted the power lines.
Mr Druce was cross-examined about the hand signals which he alleged were given by Mr Voight and Mr Whitford. He acknowledged that he told a SafeWork inspector that what he knew about hand signals came from his own research and what Mr Bennett had taught him. Up until the incident he had never done a job operating a crane. Mr Druce acknowledged that he told the SafeWork inspector that: he should have been aware of his surroundings; he took full responsibility; and it could have been a lot worse because he could have killed two men through not being safe.
It was put to Mr Druce in cross-examination that there was nothing obstructing him looking straight out the front window of his cabin and seeing the boom. Mr Druce disagreed saying that there was a roof which obstructed him looking up and that he had no vision of the raised boom when he was in his cabin operating the crane.
During cross-examination Mr Druce said that he was "in a mess that day" and was "in a mess for quite a long time". He said that he was doing his best to give truthful answers.
Mr Druce again said in cross-examination that he had discussed the existence of power lines with Mr Voight and Mr Whitford and identified that this was a possible danger on the site. Mr Druce had moved the crane under the power lines on a number of occasions that day when he was picking up pieces of machinery prior to dealing with the conveyor belt.
In re-examination Mr Druce reiterated that he did not have vision from the cabin which allowed him to see the end of the boom when it was fully extended, as seen in the photographs.
In final submissions counsel for the defendant attacked the credibility of Mr Druce. He described parts of his evidence as self-serving, evasive, and internally inconsistent. He submitted that Mr Druce would not make concessions which should have been made.
I observed Mr Druce closely when he was giving his evidence. He appeared to me to be doing the best he could to tell the truth. I take into account that he was a young man completely out of his depth on the day. Not only did he not have a ticket to drive the crane, but this was the first time he had operated the crane to do any lifting work.
The criticism of Mr Druce largely arose from his assertion that he operated the crane in accordance with the hand signals given by Mr Voight and Mr Whitford. While he now says that he depended on them because he lacked experience, I do not accept that any arrangement was reached on the day for Mr Druce to simply follow any hand signals of Mr Whitford and Mr Voight.
The evidence of Mr Whitford is referred to below, and in respect of hand signals I prefer his evidence to that of Mr Druce. All Mr Whitford and Mr Voight were doing on the day was giving signals to show which piece of equipment should be picked up next and where it should be placed on the semi-trailer. I find that Mr Druce, in giving evidence that he operated the crane in accordance with hand signals given by the two workers, is really seeking to comfort himself by believing that he was not to blame for what occurred on the day.
Further, I do not accept his evidence that Mr Voight and Mr Whitford said anything to him that day to the effect that they were qualified dogmen. They were not. They had no reason to say this to Mr Druce.

[14]

Mr Peter Voight

On the day of the incident Mr Voight was employed by Arkwood as a centrifuge operator. Because he received such a severe electric shock, he has no recollection of the two weeks before the date of the incident or the two and a half months after the incident. He has no recollection of even being at the site during that time.
Prior to October 2018 Mr Voight had been involved in dismantling and moving the centrifuge operation from a sewerage treatment plant about 40 times. He had a road train truck licence, a forklift tractor end loader licence and a licence to perform high-risk work around equipment and machinery. He never had a licence to do dogman work.
In cross-examination Mr Voight said that on any job he always used the crane company preferred by the sewerage plant operator. He could recall working with Highlands Cranes once on a similar job at Mittagong. Whenever he asked for a crane to assist in dismantling the centrifuge he ordered a 20-tonne Franna crane, with a driver and a dogman. He said that asking for a dogman was "one of my golden rules". Mr Voight said that he understood that a crane operator and dogman worked together and had their own signals. It was a specialised field and the dogman knew what chains needed to be used and the length and strength of chains and slings. Mr Voight said that this was "not our area of expertise".
Mr Voight said that he never had a crane show up without a dogman and he had always delayed any crane work until a dogman was supplied. He had never told anyone that he had a dogman's licence. On previous jobs the crane operator and the dogman had chained and lifted the various pieces of equipment onto the semi-trailers. He had never told a crane operator how the crane should be operated. He has no training in crane operation. He would have expected the crane operator to determine where he should position the crane. The crane operator should also decide how high the boom should be or how much rope should be in or out.
I accept the evidence of Mr Voight. However, a curious feature of his evidence was his assertion that he would never start a cranage operation without a dogman. Yet that is exactly what happened on the day of the incident.

[15]

Mr Gregory Whitford

Mr Whitford gave evidence that on the day of the incident he was employed as a truck driver by Arkwood. He had undergone an induction prior to commencing work at the site. He recalled a young fellow driving the crane onto the site and saying that the crane company was triple-booked. He was surprised to see the young man driving the crane, as a week prior the young man had been working as a dogman on site.
The centrifuge was like a Meccano set which could be taken apart. The various pieces were put back on a semi-trailer in a set order. The conveyor belt goes on top at the end of this process. It is first off and last on.
In cross-examination Mr Whitford said that Mr Druce never told him that he did not have a licence to operate the crane. Mr Whitford said that he did not tell the crane operator where to go or what to do but all he told him was what he wanted picked up. Mr Whitford said that Mr Druce and Mr Voight had a discussion about identifying hazards on the site, but he could not recall this discussion as "I wasn't with them".
Mr Whitford said that he definitely did not give any hand signals to the crane operator on the day of the incident. The only instructions he gave were what to pick up and where to put it on the semi-trailer. Neither Mr Whitford nor Mr Voight told Mr Druce where to put the crane. Mr Whitford relied on the expertise of the crane operator to position the crane.
Mr Whitford was shown some photographs of the conveyor belt with chains attached (DX 2). He identified red marks on the conveyor belt which was where chains had to be hooked up. Anyone hooking up the chains to this conveyor belt did not have to make any decision about where they went, as the marks were already painted on the metal. There were marks for a four-chain hookup or a two-chain hookup. Mr Whitford said that the crane operator only provided two chains, so the chains were put on the red marks in the centre of the conveyor belt.
In re-examination Mr Whitford was taken to answers he gave in a formal interview under s 155 of the Act. He acknowledged that in the interview he said that prior to the incident he did discuss the specific location of the crane and the vicinity of the overhead power lines. These questions and answers in the interview were tendered (PX 6).
I accept the evidence of Mr Whitford.

[17]

Mr Geoffrey Carey

On the day of the incident Mr Carey was employed by Wingecarribee Shire Council (Wingecarribee Council) at the site as the main operator. He had been doing that job for 10-12 years. If someone came to the site and had not yet been inducted, they were expected to proceed to the office where an induction would take place. There was a gate to the site, but once someone drove through the gate they drove across a farm and then across a cattle grid and they were in the plant.
Mr Carey worked alone at the plant. On the day of the incident he went to Moss Vale to attend a meeting about a new plant. He left workers from Endeavour Energy on site. They were working on an electrical main. Mr Carey said that the Arkwood workers informed him that they were getting ready to pack up.
Mr Carey was shown a contractor visitors register and said that when people came on site they were supposed to sign that register. While he was away at the meeting at the Civic Centre there was no-one else operating the sewerage treatment plant.
While he was at the meeting Mr Carey was contacted by a manager from Endeavor Energy. The crew had hit a rising sewer main. Mr Carey went back to the site and was with the Endeavour Energy workers trying to fix the problem. He noticed the crane on site a couple of hundred metres away down the other end of the plant. He recognised it as a Highlands Crane vehicle and assumed that Mr Nigel Bennett was driving the crane. Mr Carey had never met Mr Druce and had never inducted Mr Druce.
Mr Carey said that there was an explosion, which he realised was down where the crane was working. He went towards that site. He started to call emergency services. The Endeavour Energy workers made sure the power was off before anyone got close to the crane. He could see the crane was up against the power lines.
Mr Carey had worked with Mr Voight and Mr Whitford before and said "they were pretty good at what they did".
In cross-examination Mr Carey said that when Mr Bennett had brought cranes to the site on previous occasions he usually came with a dogman. He said that when Council requested Mr Bennett to come to site they always requested a dogman.
In cross-examination Mr Carey said that if someone came to the site and did not have an appropriate licence, they would not have been hired and they would not have been allowed onto the site.
I accept the evidence of Mr Carey.

[21]

Post-Incident SWMS

Reference has already been made to the Improvement Notice issued by Inspector Baldwin.
In response to the Improvement Notice Arkwood provided a summary of the steps taken (PX 1, Tab 8, p 4). The steps included: 1. Generating a checklist that must be completed prior to commencement of crane operations. The form requires employees to visibly check the documentation carried with the crane, ensure all operators are licensed and ensure the vehicle has been serviced and is fit for duty. 2. Employees will be instructed that they are not to allow operations to begin unless the documentation is satisfactory and at least two qualified operators are present, one being a rigger. 3. Employees must maintain a safe distance from the crane at all times. 4. Additional training in all aspects of the changes was to be carried out.
In a document headed "QP.9 Product - Centrifuge Operations" the following is stated: "NOTE: When the crane is delivered, you must complete the Centrifuge Pre-Operations Checklist. Sight licences before proceeding. Site hazards must be identified and recorded on the form. The Arkwood operator must approve the form, sign it and email a copy to the Office. A qualified rigger/dogman must be present. If any of these criteria are not met, contact the Centrifuge Supervisor and do NOT allow the crane to be operated on the site until the deficit has been remedied. Crane operators and riggers/dogmen must be suitably inducted onto the site. The Arkwood Checklist must be completed." (PX 1, Tab 8, p 8)
In s 9.11 of that document, headed "Work Health and Safety" the following appears: "Tool box talks must be conducted on every site and be signed off by all personnel present, with actions listed to manage and control risks or hazards. Operators must identify site hazards both prior to commencing work and during operations. … Risk assessments must be completed for all identified risks. … LOOK UP AND LIVE * Risk assessment. Extreme Risk of injury or death. Extreme care must be taken around power lines and power poles! • Check for power lines. If there are poles, there WILL be lines. • Determine the exclusion zone." (PX 1, Tab 8, p 24)
The Centrifuge Pre-Operations Checklist is at PX 1, Tab 8, pp 32-33. It refers to the need to sight documentation for the crane itself, and the high-risk work licence for the crane operator and a "Rigger/Dogger". It also requires a review of the hazards above the work site.
Arkwood also provided, in response to the Improvement Notice, statements of additional training given to Arkwood employees (PX 1, Tab 8, pp 34-37).
The new SWMS for dismantling the centrifuge for dewatering operations is site-specific for dewatering at the Moss Vale Sewerage Treatment Plant (PX 1, Tab 8, p 38). It lists a potential hazard as "overhead" which is rated as an "Acute" risk. The controls are: "Check for power lines and other hazards. Move work area."
Item 7 in the new SWMS relates to the job step of "disassemble legs on centrifuge outloading conveyor and lift on to position on centrifuge trailer". The potential overhead hazard, which is "an Acute" risk, is required to be controlled as follows: "Check for power lines and other overhead hazards. Check power line clearances so vehicles able to pass safely under power lines in transit. Equipment to be unloaded away from any overhead power lines. Loads to be carried as low as possible in vicinity of power lines. Use observer. Move work area." (PX 1, Tab 8, p 44)
Arkwood created a new SWMS for the activity of loading the mobile centrifuge unit. Again, this new SWMS was site-specific for the Moss Vale Sewerage Treatment Plant. Item 1d was "remove conveyor support legs and lift using crane and place on trailer". The overhead hazards were rated as "Acute" and the controls were the same as those set out above (PX 1, Tab 8, p 51).
A table which follows those words indicates that the exclusion zone for low voltage lines up to 135 kV is three metres.
The document goes on to say: "• Do NOT raise the trailer unless it is safe to do so. • Do NOT raise the boom of a crane unless it is safe to do so."

[22]

Code of Practice 2006

The prosecutor tendered the WorkCover Code of Practice 2006 entitled "Work Near Overhead Power Lines" (Code of Practice) (PX 2, Tab 16). The purpose of the Code of Practice is set out in s 1.2 as follows: "This code of practice provides practical guidance in order to protect the health and safety of persons working near overhead power lines and associated electrical apparatus. It provides guidance on the risk control measures, competency requirements and approach distances to live electrical conductors, including no go zones for cranes and plant (and their loads), as well as for vehicles, individuals and hand-held tools. It applies to persons with varying levels of qualification, training or knowledge."
The Code of Practice applies to work which is carried out near overhead power lines and associated electrical apparatus - s 1.3.
Chapter 2 of the Code of Practice deals with "consultation and risk management". Section 2.2 headed "Risk Management at the Workplace" says: "The process of risk assessment and control is made up of the following steps: • Identify the hazards. • Assess the risk(s) to the health and safety of persons arising from the hazards. • Use appropriate control measures to eliminate or control the risk(s). • Monitor and review the control measures to ensure on-going safety."
Section 2.2.2 of the Code of Practice says that the factors that need to be considered in a risk assessment should include: "• Harm that can be caused by exposure to the hazard. • Number of people and the duration and frequency of exposure to the hazard. • Capability, skill and experience of people exposed to the hazard."
Section 2.2.3 of the Code of Practice is headed "Eliminate or Control the Risk". It says that the risk can be eliminated by discontinuing the work activity or arranging for de-energising the overhead power lines. It says that the risk can be minimised by a number of steps, one of which is: "Adopting administrative controls, by example, signage, warning barriers marking the work site, safe work procedures such as maintaining a safe distance from overhead power lines and using a safety observer to warn people before they encroach the approach distances specified in this Code."
Section 2.3 of the Code of Practice deals with "information, instruction, training and supervision". It says that work near overhead power lines "should not be performed unless those performing the work have received appropriate instruction and training". It also says that "employers must provide adequate supervision". It specifically refers to the need to supervise crane and plant operators working near overhead power lines.
Section 2.2 of the Code of Practice deals with "preparation for work to commence". It says: "Careful planning and preparation is an essential step to ensure that work is done safely. When preparing for the commencement of work all controls indicated by the risk assessment(s) and Safe Work Method Statement(s) as applicable must have been put in place and that no new hazards exist, or have been created."
Chapter 3 of the Code of Practice deals with "approach distances when working near overhead power lines". Table 1, on p 23 of the Code of Practice, says that the approach distance for power lines up to 132 kV is three metres.
Section 3.9 of the Code of Practice is headed "Safety Observer - General Requirements". It says: "The Safety Observer is a person specifically assigned the duty of observing the work near overhead power lines and associated electrical apparatus in order to - • warn personnel or the crane or plant operator so as to ensure the approach distances are being maintained and • warn of any other unsafe conditions. The Safety Observer must - • be used whenever the work activity is likely to be performed in the Accredited Person Zone."
None of the three men working near the overhead power lines on the day of the incident was an "Accredited Person" as defined in s 1.8 of the Code of Practice.
Appendix 2 of the Code of Practice sets out an example of a risk assessment checklist (pp 55-56). Appendix 3 of the Code of Practice sets out an example of a Safe Work Method Statement (pp 57-59).
Section 275 of the Act relates to the use of Codes of Practice in proceedings. Section 275 says: "(1) This section applies in a proceeding for an offence against this Act. (2) An approved code of practice is admissible in the proceeding as evidence of whether or not a duty or obligation under this Act has been complied with. (3) The court may - (a) have regard to the code as evidence of what is known about a hazard or risk, risk assessment or risk control to which the code relates, and (b) rely on the code in determining what is reasonably practicable in the circumstances to which the code relates. Note - See section 18 for the meaning of reasonably practicable. (4) Nothing in this section prevents a person from introducing evidence of compliance with this Act in a manner that is different from the code but provides a standard of work health and safety that is equivalent to or higher than the standard required in the code."

[25]

Expert Evidence

Expert reports by Mr J Kent (PX 5) and Mr P Spry (DX 1) and a joint conclave report (PX 7) were tendered. The experts also gave joint oral evidence.
Because of the view which I have formed concerning the actions and responsibilities of Mr Voight and Mr Whitford at the site, and because the experts reached a degree of consensus in their conclave report, I will not go into the fine detail of the expert reports in this judgment.
In his Executive Summary (DX 1, p 2), Mr Spry said: "The underlying incident occurred when a Franna crane being used to move a conveyor assembly became electrified due to its proximity to energised power lines and consequently electrocuted two Arkwood ground based employees. Fundamentally it is my view that the incident occurred as a result of the decision by Highlands Cranes (HC, the owner of the Franna crane) to provide and use a trainee crane driver/dogman to operate a crane in the vicinity of powerlines without crane specific supervision and appropriate work practices. The requirement of the task should have been based on a properly considered lift plan, which is likely to have required; • An experience and licensed crane driver and • Potentially an experienced and dedicated spotter when operating near energised overhead powerlines The requirement of a spotter assumes the lift plan uses a work methodology that also assumes the crane boom cannot be reasonably monitored by the crane driver and that there is a risk of the boom getting too close to the powerlines. In practical terms whenever a hazard exists (e.g. energised powerlines) that cannot be monitored by the crane driver a spotter is usually supplied as a necessary part of the crane operation team. The Arkwood employees (Mr Peter Voight & Mr Greg Whitford) who were electrocuted, were at the time acting as fitters i.e. dismantling the conveyor assembly and advising when it was needed to be moved (e.g. after it had been unbolted and free to be moved, etc.). As part of their fitting role the Arkwood employees nominated where and when the lifted load (conveyor assembly) should be moved, and HC were contracted to provide both the crane and operating personnel to safely maneuver the crane and move the load."
Mr Spry said that a spotter could be a person who was not necessarily qualified as a dogman. The function of a spotter is often delegated to persons otherwise qualified as either a crane operator, dogman or rigger, provided they are dedicated to the spotting task only at that time and are competent in that role. A fundamental requirement of spotting is that a clear and uninterrupted view of the crane during load movement is maintained, and the spotter is dedicated to the act of spotting during the lift and has a clear line of communication to the crane operator (DX 1, p 5).
The report of Mr Kent (PX 5) was obtained by the prosecutor to respond to the report of Mr Spry. In his Executive Summary (PX 5, p 2) Mr Kent said: "This report has been prepared following a request by Helen Williams (Senior Lawyer, Legal, Department of Customer Service), reference number HW:3910079, dated 18 February 2022. The request was to review an Expert Report authored by Peter Spry and answer questions. Mr Spry's report examines an incident where two workers received injuries due to a crane contacting energised overhead power lines. The request included a brief of photographs, statements, documents, and a list of factual assumptions, which, along with my experience and qualifications, have been used to provide the answers given in this report. A copy of a signed expert certificate, CV and extracts from any referenced documents have been included in this report. I have read and agree to be bound by the principles governing expert evidence. My main area of disagreement with Mr Spry is the nature of the task being undertaken by Arkwood workers at the time of the incident. As a result of this, I also disagree with his conclusions regarding how Arkwood should reasonably manage risk associated with the task. I do not agree Arkwood workers were only undertaking fitting work, or that Arkwood had adequately managed risk by engaging a crane company to undertake lifting work work. Arkwood workers were slinging loads and performing dogging work, thus Arkwood must either manage risk associated with this task or ensure their workers did not undertake this task. There was a foreseeable risk of Arkwood workers touching a load that had become energised through inadvertent crane motion. This risk is identified in existing guidance material, along with appropriate control measures. This risk would still exist even if their workers were only undertaking fitting work. Both Arkwood and Highland Crane workers were actively involved in lifting operations, and thus both companies had an obligation to manage risks associated with activity."
In the conclave report (PX 7) Mr Spry and Mr Kent agreed upon the following statement: "The operation of the crane was not undertaken in accordance with recognised industry practice and available guidance material (eg AS 2550.5, COP Work near overhead power lines), and significantly contributed to the risk of electric shock."
Mr Kent disagreed with the conclusion of Mr Spry that the Arkwood workers were undertaking fitting work. Mr Kent disagreed with the opinion of Mr Spry that Arkwood had sufficiently managed risk by engaging a crane company. Mr Kent disagreed with the opinion of Mr Spry that Highlands Cranes were responsible for the lifting operation. To a large extent these disagreements between the experts came about because each was asked to make a different set of assumptions. That issue is fully explored in the joint oral evidence given by the experts.
Mr Kent agreed with the proposition put by counsel for the defendant as follows (Tcpt 183/24-28): "Equally, once power lines have been identified and the crane driver makes an assessment of how he should set up the crane, given there are power lines in the vicinity, again, it would be reasonable for Mr Voight and Mr Whitford to rely on that judgment, because he's operating the crane?"
However, Mr Kent did give evidence, shortly after that concession, that the proximity of the crane to the power lines created a risk to the workers on the ground as there was a risk of inadvertent contact. He said that the foreseeable risk of inadvertent contact is directly related to the activity of the Arkwood employees, not just the crane activity (Tcpt 184/15).
Mr Spry was asked whether it was necessary, once two chains were used to lift the conveyor belt, for one or more of the Arkwood employees to hold the conveyor belt at either end to control its movement once it was lifted. Mr Kent and Mr Spry agreed that at least one of the employees would need to be involved, as once the conveyor belt was lifted with two chains at the balance point, there could be movement of the conveyor belt when the crane moved (Tcpt 185/32-186/6).
Both Mr Kent and Mr Spry agreed that if all the men were doing was stabilising the conveyor belt once it was lifted off the ground, then the Arkwood workers were not conducting dogging work and were not directing the crane operator. They were simply helping to stabilise the load (Tcpt 186/8-18).

[34]

Additional Findings of Fact

I make the following findings of fact, over and above the agreed facts set out above. I have been assisted in this task by the proposed findings of fact set out in writing by both counsel as part of their final submissions (MFI 1 and MFI 2).
Counsel for the prosecutor put forward 22 facts which he asked the court to find. I make findings in accordance with the document MFI 1, save that I decline to make the findings numbered 13 and 16. The findings of fact which I do make by reference to MFI 1, and based upon the evidence summarised above, are as follows: "1. Mr Druce did not hold a dogman's licence. 2. A number of energised power lines traversed the Moss Vale Sewerage Treatment Plant located at Kennedy Close, Moss Vale, owned, controlled, and managed by Wingecarribee Council (the site). 3. 25 October 2018 Mr Voight and Mr Whitford were at work at the site dismantling a centrifuge and loading it onto a flatbed truck, with the use of a mobile crane (the crane), so it could be removed from the site (the task), when the boom of the crane came into contact with, or in close proximity to, an energised overhead powerline (the incident). One of the components of the centrifuge was a conveyor. 4. Arkwood's procedures require that a dogman be supplied with a mobile crane. 5. There was no dogman supplied with the crane. 6. There was no spotter assigned to that task on the day of the incident. 7. When Mr Druce arrived at the site driving the crane there was no Wingecarribee Council employee present to carry out an induction and ensure that Mr Druce possessed the required licence to operate a mobile crane. 8. Mr Druce did not expect to operate the crane on the site when he arrived. Mr Druce and Mr Bennett had expected Mr Bennett to be at the site for the task, but Mr Bennett was attending another job that was delayed, and was not available at the required time. 9. Mr Druce was instructed by Mr Bennett via the telephone to operate the crane and complete the cranage necessary to lift the machine components, despite Mr Druce not being qualified to operate a mobile crane. 10. The crane was placed directly underneath the overhead power lines when moving the conveyor. As a result, its boom, on extension, could travel in an arc and come into contact with, or in the vicinity of, the power lines whilst carrying out relevant lifts. The presence of these powerlines was known to all persons working on the site and was discussed between Mr Druce and Mr Whitford when setting up the work. 11. The crane was set up inappropriately so that the block was a considerable distance below the tip of the boom of the crane resulting in the boom needing to be raised to a greater height than it should have been. 12. As Mr Druce was driving the crane, he was not able to see where the head of the boom was in relation to the powerlines. 13. [Not Made] 14. Prior to lifting the conveyor, Mr Druce had lifted and loaded about one dozen items, with Mr Voight and/or Mr Whitford carrying out the function of the 'hooking up' of those loads and directing Mr Druce as to the correct order for them to be placed on the semi-trailer. 15. Mr Voight and Mr Whitford, when engaged in attaching chains to the conveyor and guiding the lifting of the conveyor, were working in the vicinity of the overhead powerlines. 16. [Not Made] 17. Mr Voight had carried out the same task of dismantling the watering plant as at 25 October 2018 up to 40 times previously. 18. Mr Voight, as at 25 October 2018, did not hold a dogman's licence. The high risk work licence he held was for forklift driving and working in proximity to machinery. 19. Mr Whitford, as at 25 October 2018, held no HRWL. 20. Arkwood did not conduct a site-specific risk assessment that identified the presence of the high voltage powerlines traversing the site. 21. Arkwood did not instruct its employees to ensure that there was: a. A dogman present on the day of the incident, nor b. That they cited [sic: sighted] the crane operators qualification prior to work commencing. 22. Inspector Baldwin issued an Improvement Notice on the defendant on 26 October 2018. In response the defendant modified it's systems of work documentation."
I decline to make the findings of fact sought by the prosecutor and set out in pars 13 and 16 of MFI 1. The prosecutor asked me to find as follows: "13 Mr Druce was directed by Mr Voight and/or Mr Whitford as to the movement of the crane loads by the use of hand signals." "16 Mr Druce, when lifting the conveyor, was directed by hand signals given by Mr Voight and/or Mr Whitford to 'jib up'."
For reasons set out above in relation to the credibility of Mr Druce I decline to make these findings. Neither Mr Voight nor Mr Whitford were qualified dogmen. The evidence was that crane operators and dogmen worked together by the use of a shared code of hand signals. Mr Druce had no training in the use of hand signals, except that given to him by Mr Bennett. There was no indication that Mr Voight or Mr Whitford would have known, either from Mr Druce, or Mr Bennett, or from their own experience, of the hand signals which would have been used by workers engaged by Highlands Cranes. I find that the only hand signals given by Mr Voight or Mr Whitford related to pointing to the next item to go on the semi-trailer, and then pointing out where on the semi-trailer the item was to be landed.
Counsel for the defendant set out in MFI 2 27 findings of facts which he asked the court to make. I find that all of those matters have been established by the evidence which has been summarised above: 1. Mr Whitford was a truck driver. 2. Mr Voight was a centrifuge operator and centrifuge supervisor. 3. Mr McIntosh was a truck driver. 4. Mr Whitford, MrVoight and Mr McIntosh were not dogmen. 5. Mr Druce was not licensed to operate the crane. 6. Mr Druce was not licensed as a dogman. 7. Neither Mr Whitford, Mr Voight or Mr McIntosh had any knowledge that Mr Druce was unlicensed as a crane operator or a dogman. Mr Druce did not tell Mr Whitford, Mr Voight or Mr McIntosh that he was not licensed to drive the crane. 8. Cranage work was not an integral part of Arkwood's work, and as such, cranage was not part of Akwood's expertise. 9. Previously, on 18 October 2018 when Highlands Cranes first attended, Mr Druce had been the dogman assisting Mr Bennett on site. 10. On 18 October 2018 and then again on or before 25 October 2018, Arkwood ordered Highlands Cranes to supply a crane, a crane operator and a dogman. 11. Mr Druce was directed by Mr Bennett to: 1. Drive the crane to site; and 2. Operate the crane at the site without a dogman. 1. Mr Bennett told Mr Druce that the Arkwood workers were experienced dogmen. 2. Mr Druce was the crane operator and at all times was in control of how the crane operation was to be undertaken. 3. Mr Druce did not advise Mr Whitford or Mr Voight that he required a spotter. 4. Mr Druce did not advise Mr Whitford or Mr Voight that he required a dogman. 5. Mr Whitford and Mr Voight did not tell Mr Druce they were qualified dogmen or had years of experience. 6. Mr Druce did not ask Mr Whitford and Mr Voight if they were licensed dogmen. 7. Wingecarribee Council had previously used Highlands Cranes on the site. 8. Arkwood had previously used Highlands Cranes on the site. 9. Highlands Cranes provided the lifting chains. 10. Mr Whitford and/or Mr Voight told the crane operator, Mr Druce, what to move and where it needed to be moved to. 11. Mr Whitford and Mr Voight did not give instruction to Mr Druce on: 1. How to move the items; or 2. How to operate the crane in terms of approach, path of travel and way of lifting. 1. The conveyor belt had pre-marked locations to identify where the chains of a crane were to be attached. This was because the same conveyor belt was repeatedly assembled and disassembled by Arkwood with the assistance of a crane specialist company. 2. Neither Mr Voight nor Mr Whitford were engaged in dogging work. 3. Neither Mr Voight nor Mr Whitford used hand signals that would be understood to be typical of such signals used by a dogman. 4. There was a prestart discussion between Mr Druce, Mr Voight and Mr Whitford addressing the location of the power lines and the evenness of the ground. 5. Arkwood and its workers held a genuine belief that Mr Druce held the relevant qualifications to operate a crane and had the relevant experience to operate the crane at the site.

[35]

Findings of Fact Relevant to Reliance on a Specialised Contractor

The submissions and the legal issues in relation to reliance on a specialised contractor have been set out above. All of the authorities say that the question of what is reasonably practicable is a matter of fact and degree in each case.
My findings of fact relevant to this issue are as follows: 1. Highlands Cranes was a PCBU which had expertise and experience in the supply and operation of mobile cranes. 2. Arkwood had no such experience or expertise. 3. On the day of the incident Arkwood ordered a crane and a dogman to assist in the dismantling of the centrifuge and the loading of its component parts onto a semi-trailer. 4. The Arkwood employees, Mr Voight and Mr Whitford, recognised the existence of the hazard of overhead power lines and discussed the presence of the power lines with Mr Druce. 5. Arkwood had an existing SWMS which required site-specific hazards to be identified, mitigated and signed off at a toolbox talk (PX 1, Tab 8, p 90). 6. Arkwood had an existing SWMS which set out the following controls in relation to overhead power lines: 1. Check for power lines and other overhead hazards. 2. Equipment to be unloaded away from any overhead power lines. 3. Use observer. 1. Arkwood employees did check for power lines and recognised that they constituted a danger. 2. Arkwood employees did not ensure that equipment was placed away from overhead power lines. 3. Arkwood employees did not use an observer. 4. The Code of Practice applied to Arkwood as well as to Highlands Cranes, since Arkwood personnel were working near overhead power lines. 5. Section 2.2.3 of the Code of Practice provided that the risk could be eliminated by discontinuing the work activity or arranging for de-energising the overhead power lines. Neither step was taken. 6. Section 2.3 of the Code of Practice says that work near overhead power lines "should not be performed unless those performing the work have received appropriate instruction and training". 7. There was no evidence of appropriate instruction or training. 8. Section 2.3 of the Code of Practice says that "employers must provide adequate supervision". The Code of Practice specifically refers to the need to supervise crane and plant operators working near overhead power lines. 9. There was no supervision of the crane operator working near overhead power lines. 10. Section 2.3.3 of the Code of Practice said that the risk could be minimised by, inter alia, "using a safety observer to warn people before they encroach the approach distances specified in this Code". Section 3.9 of the Code of Practice provided that a Safety Observer is a person specifically assigned the duty of observing the work near overhead power lines in order to "warn personnel or the crane or plant operator so to ensure the approach distances are being maintained". (Emphasis added) 11. There was no safety observer. 12. Either Mr Voight or Mr Whitford could have acted as a safety observer or spotter - see the evidence of Mr Spry referred to above. 13. The work being carried out by Arkwood employees was "high risk construction work" within the meaning of cl 299 of the Regulation, because it was work "carried out on or near energised electrical installations or services" - cl 291 of the Regulation. 14. There was no appropriate SWMS prepared, as required by cl 299. In particular, there was no SWMS describing how suitable control measures were to be implemented, monitored and reviewed.

[37]

Submissions for the Defendant

Counsel for the defendant made the following submissions: 1. The pleaded risk is incident focussed not a general risk. 2. The assessment of whether steps are reasonably practicable is a forward-looking process based on the facts that were in existence at the relevant time, and relevant to the incident. 3. The particulars pleaded in the Summons are backward-looking. For example, reference to a checklist arises only because a new SWMS was created as a result of the Improvement Notice, and this incorporated a checklist. 4. The assessment of reasonable practicability is a forward-looking assessment whereas causation is backward-looking. 5. It may well be that a defendant has breached one or more of the duties but that does not mean that the prosecutor necessarily succeeds. The prosecutor must demonstrate a causal connection between the act or omission of the defendant and the risk that materialised on the particular day. 6. Section 18(a) of the Act refers to the likelihood of the risk concerned occurring. 7. The defendant was completely entitled to rely on the expertise of the crane operator in the way he operated the crane, the decisions he made in relation to how it would approach the tasks and whether the crane operator required a dogman or a spotter. These are all matters which were in the complete discretion and expertise of the crane operator and the crane company. 8. It is an agreed fact that Arkwood ordered Highlands Cranes to supply a crane operator and a dogman. 9. There was nothing to put anyone on notice about Mr Druce's lack of qualifications and lack of experience. 10. Mr Whitford should be accepted when he said that he did not give hand signals to the crane operator. 11. The evidence of Mr Druce was on occasions evasive. He would not make concessions which should have been made. His evidence was internally inconsistent. 12. There was no reason for Arkwood to think that Mr Druce had not been inducted, because Mr Bennett had been inducted, and Mr Druce was there with Mr Bennett a week or so before. 13. It was not foreseeable to Arkwood that on the day of the incident Mr Druce was not a licensed crane operator, was completely incompetent or that he had not been inducted. This is the forward-looking approach to foreseeability. 14. There was very little dispute between the experts. They agreed that if the chains simply had to be placed on the conveyor belt where the red painted marks are, that takes away any discretion necessary in relation to slinging the load. This is particularly so where the job always involves the same piece of equipment. 15. There was no evidence of where the work was being done and when or where the crane was underneath the power lines. 16. Mr Druce conceded that it was his decision how to operate the crane because Arkwood did not have any expertise in operating the crane. 17. The court could draw an inference that Mr Voight or Mr Whitford or both of them attached the chains to the conveyor belt at the red marks. 18. The court should accept that Arkwood was not going to tell the crane operator how to operate the crane or what approach should be taken to the equipment. It was a matter for the crane operator because Arkwood did not know how to pick up these pieces of equipment using a crane. 19. An inference should be drawn that Mr Druce determined, rightly or wrongly, that he did not need a dogman, nor did he need a spotter. 20. The defendant accepts that par [74] of the decision in McConnell Dowell, referred to above, correctly states the principles which can be extracted from the various authorities in relation to use of a specialist contractor. 21. Arkwood was entitled to call upon the expertise of Highlands Cranes in circumstances where it did not have such expertise. 22. Highlands Cranes was a known entity, which Wingecarribee Council had used on numerous occasions and which Arkwood had used before. 23. Mr Druce was known to Arkwood because he was used as a dogman by Mr Bennett on the previous job. 24. There was a lack of expertise on the part of Arkwood and there was expertise on the part of Highlands Cranes. 25. Arkwood had no control over the crane operation and could not tell the crane operator how to operate the crane. It was limited to directing the crane operator to take one piece of equipment from a location and deliver it to the semi-trailer. 26. Nobody from Arkwood would really know whether the crane was approaching the piece to be picked up from the appropriate direction nor whether the boom should be up or down. 27. Arkwood had no appropriate knowledge about the appropriate safety precautions that crane operators needed to take. In those circumstances, it was entirely appropriate for it to rely on the skill and expertise of Highlands Cranes. 28. The decision of the Court of Criminal Appeal in Grasso Consulting Engineers Pty Ltd v SafeWork NSW [2021] NSWCCA 288 (discussed below) requires the court not only to look at whether there is a causal connection, but requires the court to examine the counterfactual situation.

[47]

Delegation to a Specialised Contractor

I reject the submission of the defendant that it was entitled to, in effect, leave the entire safety of the crane operation to the crane operator. My reasons are: 1. The Act imposes a duty on a PCBU not only to do what is reasonably practicable to ensure safety, but to take reasonable care that other contractors whose assistance is necessary do not expose workers to hazards. 2. The defendant was entitled to call upon the expertise of the crane contractor, as the defendant did not have that expertise. 3. If the task is one which demonstrably falls outside the expertise of the PCBU, and if it appears that the independent contractor has been carefully and safely performing its work, then it would ordinarily be difficult to conclude that the PCBU has breached the duties imposed upon it by the legislation. However, Arkwood through its workers were able to observe that the crane was being driven back and forward underneath the power lines. Further, Arkwood through its workers could observe that in positioning itself for the lift of the conveyor belt, which would require some raising of the boom, the crane was positioned underneath the power lines and thus the boom could inadvertently come into contact the power lines. 4. The court must look at the facts of each case, not with the benefit of hindsight, nor with the wisdom of Solomon, but remembering that one of the chief responsibilities of the PCBU is the safety of those who work for it. 5. The question of control over the specialised contractor is relevant to the determination of what is reasonably practicable. While the physical operation of the crane was left to the crane operator, the defendant through its workers had the ability to simply stop the work if they realised that it was being done in an unsafe fashion. Further, having ordered a dogman, Arkwood's employees continued with the task of loading the machinery onto the semi-trailer. Mr Voight gave evidence that it was his golden rule that he would not even commence crane operations without a dogman, and yet on the day of the incident this is what happened, and the crane was used for some considerable period of time to do several lifts without a dogman. The defendant had the ability to simply decline to do any work involving the crane until a dogman was supplied, as ordered. 6. There are cases where a PCBU cannot give instructions on what safety measures are to be taken. This is not one of them. Arkwood's workers could have taken two simple safety precautions. The first was placing the equipment to be lifted away from the power lines. The second was using an observer. 7. It is not enough for a person to merely assume that someone else will attend to safety requirements. Arkwood had control over its own employees, and those employees had the power to stop work, or insist that work be carried out in a different and safer fashion. 8. In any event s 16 of the Act provides that more than one person can have a duty and that each duty holder must comply with that duty to the standard required by the Act, even if another duty holder has the same duty. 9. The Code of Practice sets out steps which should be taken during crane operations, not just by the crane operator itself, but also by others. 10. The Code of Practice points out that there is a duty to observe and supervise crane operations, particularly to guard against the risk of inadvertent contact with overhead power lines.
Extracts and a summary of the provisions in the Code of Practice have been set out above as evidence of what is known about the hazard of overhead power lines. I rely on the Code of Practice in determining what is reasonably practicable in the circumstances. I take into account the extracts from the Code of Practice as evidence of whether or not a duty or obligation under the Act has been complied with.

[50]

SWMS

Paragraph 14(b) of the Summons pleads that the defendant should have developed and implemented an appropriate SWMS, but further it alleges that the defendant should have trained workers in the procedure in the SWMS.
While the pleading alleged seven matters which should be included in the SWMS, counsel for the prosecutor did not press subpars (ii) and (v) under par 14(b) in the Summons.
Subparagraphs (i), (iii) and (iv) required a SWMS which mandated that workers should assess the height and voltage of the overhead power lines, disassemble the centrifuge away from the overhead power lines, discontinue work near the power lines until a qualified dogman and/or spotter was provided to observe the task and give warnings concerning the safe approach distances between the boom and the power lines.
The original SWMS of the defendant did set out control measures to deal with overhead power lines including doing work away from the power lines and using an observer. For reasons unbeknown neither control measure was employed on the day. In relation to the absence of a dogman, it is perplexing that while Mr Voight said it was one of his golden rules to never conduct crane operations without a dogman, he and Mr Whitford proceeded to do their task on the day of the incident even though a dogman did not turn up with the crane.
While the original SWMS of the defendant set out, in a very summary fashion, steps which could be taken, they were not taken on the day of the incident, which leads to the inference that neither Mr Voight nor Mr Whitford had been trained in the control measures set out in the original SWMS. There was no evidence that they had any particular knowledge of the SWMS or that they had ever received any instruction in relation to adopting the control measures set out in the SWMS.
Subparagraph (vi) under par 14(b) of the Summons refers to implementing a checklist requiring cranes to always operate with a qualified dogman. This is something which was missing from the original SWMS ie there was no checklist in the original SWMS and there was no requirement mandating that a dogman always be provided with a crane. If that requirement had been in the SWMS, and if the workers had been trained and instructed to follow that requirement, then the risk would have been eliminated on the day because the work would never have been commenced until the dogman was supplied.
Subparagraph (vii) under par 14(b) of the Summons refers to the SWMS containing a requirement that workers should report to more senior employees when the task could be considered high risk in order to receive a direction from senior employees to work through the checklist before commencing the task. While such a requirement in the SWMS might have been ideal, Mr Voight and Mr Whitford were experienced workers in the task being undertaken on the day. If the SWMS had been adequate, and they had been properly trained and instructed in the SWMS, I do not see that there would have been any particular need to go higher up the chain (probably to someone who is not even on the site) to make sure that the checklist was completed.
It is noted that each of the subpars under par 14(b) of the Summons is joined by the conjunction "and/or". Of those subpars which are pressed, I find that a reasonably practicable measure which the defendant should have taken would have been to develop and implement a SWMS encompassing subpars (i), (iii), (iv) and (vi).

[56]

Consideration of Element 3 - Whether the Breach of Duty Exposed Workers to a Risk of Death or Serious Injury

The relevant question on causation is not whether the failures of the defendant were the cause of the injuries to Mr Voight and Mr Whitford, but whether the acts or omissions of the defendant were a substantial or significant cause of Mr Voight, Mr Whitford and Mr Druce being exposed to the risk of injury: Bulga at [127], [130].
That question must be considered in the light of the objects of the Act and the provision contained in s 19(1), namely to ensure the health and safety of workers: Bulga at [129]-[130]. The fact that third parties (in this case Wingecarribee Council and Highlands Cranes) missed opportunities to eliminate the risk in question does not mean that the court is precluded from finding that the defendant's failure substantially contributed to the risk: Simpson Design at [117].
The Court of Criminal Appeal recently considered the issue of causation in Grasso. In that case the defendant was an engineer who was asked to give advice concerning the appropriate method for the demolition of a large building. The defendant made handwritten calculations only and did not run a computer model, which was available, to check its calculations. The trial judge found that the element of causation was established.
The Court of Criminal Appeal allowed the appeal in relation to causation and quashed the conviction. The basis upon which the court did so is best expressed by Simpson AJA at [2] as follows: "I agree, for the reasons given by Cavanagh J, that each appeal succeeds on the issue of causation. Grasso Consulting Engineers Pty Ltd ('GCE') gave relevant advice, specifically in the certificates of 11 February 2016 and 9 March 2016. Had that advice been acted upon and had the roof collapsed, GCE and Mr Grasso may have been held liable for the exposure of individuals to risk of injury, those individuals including Messrs McClutchie and Hayward. However, as the advice given by GCE was not acted upon and different instructions were given to the demolition workers, the chain of causation was severed. It was not any failure on the part of GCE or Mr Grasso that exposed the demolition workers to the risk of injury; it was the decision to demolish in accordance with the plan prepared by Mr Arnold. I agree, therefore, that grounds 4 and 5 must be upheld."
Justice Walton agreed with the conclusion reached by Justice Cavanagh saying at [12]: "I further agree with his Honour that grounds 4 and 5 of the appeal should be upheld with respect to the issue of causation, essentially upon the basis of the conclusions reached by Cavanagh J that there were too many intervening events or factors to permit the finding that the way in which Mr Grasso depicted his advice diagrammatically without additional words was a substantial and significant cause to the demolition workers being exposed to a risk of death or injury whilst they were undertaking demolition work. Further, there was an absence of evidence as to how and why a failure to undertake computer modelling constituted a substantial cause of the risk to which the workers were exposed at the time the risk materialised."
Justice Cavanagh set out the principles in relation to causation at [229]-[235] as follows: "229 In this matter the question of causation arises for the purposes of attributing blame in the criminal context. The Court is assessing causation for the purposes of assessing whether a criminal sanction should be imposed on a person. 230 As was said in Bulga, the question is whether the acts or omissions which ground the finding of non-compliance with the duty were a significant or substantial cause of the risk to which the individual was exposed. 231 It is not sufficient that the conduct be a cause. It must be a significant or substantial cause. The use of such language tends to emphasise the importance of the conduct of the duty holder to the exposure which ultimately happened, although there may still be more than one significant cause. 232 Exposure to risk at the workplace is often multi-factorial. It is not necessary to establish that the conduct was the most important or the most significant causal factor provided it was a significant or substantial cause. 233 This is not a theoretical exercise. There must be a sufficient connection between the conduct and the individual actually being exposed to a risk. 234 Further, it is necessary to establish a causal connection between the failure/conduct and the employee (person) being exposed to the risk at the time the work was being performed (in this matter whilst the demolition workers were demolishing the roof). 235 In addressing causation, it is necessary to consider the events which actually occurred. The Court is not considering the conduct from the perspective of the duty holder when that person performed the work, that is, prospectively. The Court does that when assessing breach, i.e. whether the other persons were put at risk."
The conclusion reached by Justice Cavanagh was expressed at [241]-[243] as follows: "241 The onus was on the respondent to establish causation. The respondent could not do so without establishing that the failure to undertake computer modelling exposed the demolition workers to a risk to their health and safety whilst they were undertaking their demolition work. 242 It is conceptually difficult to understand how this could be when the demolition workers were not following GCE advice and there is no evidence as what the computer modelling of the GCE sequencing advice would have shown. 243 In my view, in accepting the causal connection between the failure to undertake computer modelling and the workers being exposed to a risk to their health and safety, the trial judge erred in considering the causation question through the prism of what GCE did at the time of breach rather than how its work exposed the workers to a risk at the time they were doing the demolition work."
The failure to undertake the reasonably practicable steps which should have been taken by the defendant exposed the three workers to a risk to their health and safety while they were undertaking the work of lifting the conveyor belt. Given my findings that the defendant was and should have become aware of the risk, and the simple, inexpensive and effective reasonably practicable means available to it to ensure safety, I find that the breach of duty by the defendant was a significant or substantial contributing factor to the risk.
Had a proper risk assessment been carried out and had it identified appropriate control measures, either the work would have been carried out away from the power lines, or an appropriate warning would have been given by a spotter to Mr Druce that the boom of the crane was approaching dangerously close to the power lines.
I am satisfied beyond reasonable doubt that the breach of duty by the defendant exposed workers to a risk of death or serious injury.

SafeWork NSW v Arkwood

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Judgment (58 paragraphs)

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Legislation Cited (6)

Cases Cited (21)

Cited By (2)