SafeWork NSW v H D Projects Pty Ltd

Facts

1. The parties presented a lengthy Agreed Statement of Facts and I make findings in accordance with those facts. The prosecutor also tendered documents and called a number of witnesses. I will make findings on the few factual matters in dispute, where it is necessary to do so.
2. At all material times the defendant conducted a business or undertaking which involved the installation of permanent formwork systems, including AFS Logicwall Panels. Clyde Daish was a director of the defendant responsible for the management of day to day projects. Richard Hazard was a director of the defendant responsible for securing work. Adam Hamburger and Paul Georges were employed by the defendant as foremen. The defendant from time to time sourced workers through a labour hire firm, Hunter Labour Hire Pty Ltd (HLH), including Mr Dessens.
3. Arise was the principal contractor for the project involving the construction of 58 townhouses at Lot 21, 122 Windsor Road Kellyville (the site).
4. Arise entered into agreements with: 1. The defendant for the supply and installation of the panels; 2. AC to provide the services of a mobile crane at the site; and 3. Erectus to supply and install scaffolding.
5. Barry Ramm was the sole director of AC. Adam Kerr was employed by AC as a dogman.
6. Erectus employed Fred Naesse as its General Manager and Mr Graff and Mr Sitauti as labourers.
7. Arise commenced work at the site in about September 2017. The project consisted of the erection of nine buildings that were referred to in the project as "stacks". Stacks 1 and 8 were to contain eight townhouses and the remaining stacks were to contain six townhouses.
8. On 11 September 2017 the defendant provided a lump sum quotation to Arise for the supply and installation of the panels for the project. The Scope of Work stated that: 1. the defendant was responsible for the supply and installation of the panels (item 1.1); and 2. Arise was responsible for: 1. All safety requirements including perimeter scaffolding, edge protection, penetration covering, scaffolding for the lift and stair shafts and installation of bar caps to starter bars (item 2.6); 2. Cranage for installing panels over 3.6m in height (large panels) [1] (item 2.14); and 3. Cranage (vertical and horizontal) for delivery of wall pallets adjacent to applicable wall number (item 2.16).
9. The Qualifications to the document provided that no allowance had been made for cranage (item 3.12). The quotation was accepted by Arise on the basis of the price and the terms and conditions in it.
10. The defendant commenced work at the site on 25 October 2017.
11. The panels were supplied to the defendant by AFS Systems Pty Ltd (AFS). Approximately 15 panels were supplied stacked in a pack and secured with plastic wrapping. Each panel weighed approximately 76kg.
12. The panels were lifted by a crane in the packs with the use of the Pallet Hook. The Pallet Hook was provided by AFS to the defendant along with an instruction manual prepared by the manufacturer dated October 2010 (the Instruction Manual) and the Pallet Lifter Safe Work Method Statement dated August 2013 prepared by AFS (the AFS SWMS).

The incident

1. On 15 December 2017, panels were being lifted by a mobile crane from the ground to the first floor level of stacks 2 and 3 with the use of the Pallet Hook. Stacks 2 and 3 were under construction. No scaffold or edge protection was installed to the first floor level of Stack 2. Mr Ramm was operating the mobile crane and Mr Kerr was working as a dogman.
2. Between about 8.30am and 10.30am the crane was lifting packs of panels from the ground to the first floor level of stack 2. The crane was initially slewing loads to the right over the back of the crane. The crane then began slewing left, lifting the loads over workers. Slewing right involved lifting the loads over another stack, higher and over a longer distance.
3. Mr Kerr was receiving and detaching the loads of panels on the first floor level of stack 2. He was not directing the crane at that time. Sam Elarchi, an employee of the defendant was on level 1 of stack 2 clearing the slab and directing where the packs of panels were to be landed.
4. Mr Graff and Mr Sitauti were in the vicinity of stack 1 on the ground level and were standing near the formwork frames, discussing the work that they were going to perform after lunch.
5. At about 10.45am, Mr Ramm lifted a load of panels that had been attached to the Pallet Hook by Mr Dessens. He slewed the load to the left over where Mr Graff and Mr Sitauti were standing. When the load was above Mr Graff and Mr Sitauti, one of the panels detached from the load fell, striking Mr Graff on the head and shoulder and then striking Mr Sitauti on the head. Both Mr Graff and Mr Sitauti were knocked down.
6. Mr Graff suffered injuries to his left shoulder, left knee and left cheek. Mr Sitauti went to hospital to investigate a potential concussion but suffered no significant injuries.
7. Between about 11.10am and 11.16am, Mr Hamburger completed a document titled "HD Projects Injury Report" for each of the injured men. Under the heading of "description of event" for the form relating to Mr Graff, Mr Hamburger wrote: Panels being lifted onto slab by crane. Pallet lifter was placed in 2nd last panel not bottom as being lifted bottom panel slipped out falling onto a scaffolder. Crane only had one dogman he was on slab and Mark was loading them from below.
8. At about 1.45pm on 15 December 2017 Mr Hamburger convened a toolbox meeting with the defendant's workers on site. The record of the meeting states that the workers were told: 1. Not to hook up loads of panels even with pallet lifters; 2. To leave that task to the crane dogman; 3. To make sure that the head contractor sets up an exclusion zone; 4. To let the dogman and the crane operator determine if the load is safe; 5. Ensure that there is clear communication with all people involved in directing the load.

Available guidance material

1. Australian Standard 2550.1.11 Crane, hoists and winches - safe use (AS 2550) provided general guidance on the use of cranes and included the following statements: Personnel should not approach a crane when it is operating or travelling as there is a danger that they may be struck by the crane or the load… barricades and guarding shall be provided where necessary (page 18). When loads have to be handled in the vicinity of persons…the crane operator shall be alert to the possibility of persons being trapped and injured by the movement of the crane or load and exercise caution (page 19).
2. The SafeWork Australia Falling Objects Facts Sheet was published in February 2012 (the FOFS) and it relevantly provided: Objects have the potential to fall on to or hit people at the workplace or adjoining areas if precautions are not taken … examples include … an object free falling from lifting machinery … including loads being lifted that are not well secured … (page 2). When moving a load, a safe means of raising and lowering plant, material and debris should be provided. Examples of additional control measures include: … making sure the load is balanced and secure when the load is lifted … enclosing areas that loads are being lifted over, and establishing "isolation" or "no-go" zones with barriers and trained workers to restrict access (page 3).
3. The WorkCover NSW Code of Practice Construction Work published in July 2014 (the Construction Code) was publically available and provided: Falling objects can pose a significant risk and cause serious injuries to workers at construction work places or members of the public if control measures are not implemented to eliminate or minimise associated risks (page 67). Control measures that can be implemented to manage the risk of falling objects when undertaking construction work include: closure of the adjoining area to form an exclusion zone … using a spotter on the ground level when loads are being lifted to high levels … using the appropriate equipment to raise and lower objects … load pallets correctly to ensure load stability … (pages 67-68).
4. The Instruction Manual provided: Do NOT move the Crane/Pallet Hook unless the safety of persons in the vicinity of the crane is assured … while lifting in an area subject to passing traffic, barriers or warning signs shall be used to prevent any interference (page 6). Means shall be provided to prevent the load from sliding on the tynes, or the load or part of the load of falling … this can be achieved, for example, by … safety chains, straps, wrapping or similar.
5. The AFS SWMS provided: The task of placement of pallet lifter using crane or lifting device was the responsibility of the crane dogman; The procedure for safely placing the pallet lifter identified the hazard of personnel contact and specified the control measure being that the dogman was to ensure site personnel in the area were aware of the activity and to ensure that the load is strapped as per the instruction manual; Prior to the commencement of the lift the panels were to be secured to the pallet lifter using the binding straps provided that are located beside the tynes.
6. Neither the Instruction Manual nor the AFS SWMS were provided to AC by the defendant.

Systems of work in place prior to the incident

1. At the time of the incident, no exclusion zones were in place around the crane. Workers and other persons including Mr Graff and Mr Sitauti were not given any information or a SWMS about working safely near the crane. Mr Naesse was not notified that a crane would be working on that day and was not given any information relating to an exclusion zone, risk assessment or other safety information for the Erectus workers working in the vicinity of a crane.
2. The defendant advised HLH that Mr Dessens' duties were to be general labouring duties such as keeping the work area clean, moving material and assisting installers where required. Mr Dessens' experience consisted of four months working as a general labourer. Mr Dessens informed HLH that he had no "tickets" or qualifications, other than a white card.
3. The defendant supplied a site specific Work Health and Safety Plan to Arise dated 10 October 2017 (WHS Plan). The WHS Plan provided that Mr Georges was the defendant's employee on site with responsibility for the defendant's Scope of Works and for its safety and that the project supervisor was Mr Hamburger. The Scope of Works was noted to include, "supply and take delivery of AFS panels". The Risk Register identified the risk of "falling load" and "striking objects" from the tasks of delivery of panels and cranage of panels onto slab. The control measures identified were the setting up of an exclusion zone for the delivery task, using ticketed and licensed personnel, and use of a spotter with a dogman for the cranage task. The WHS Plan included a reference to AS 2550 relating to mobile plant and equipment.
4. The defendant provided SafeWork with a SWMS No HSE-006 for the work at the site (the defendant's SWMS). It was an agreed fact that the SWMS was signed by workers including Mr Dessens and that Mr Dessens denies ever seeing or signing the SWMS. I pause to note that these agreed facts were contradictory and the determination of whether Mr Dessens was trained on the SWMS is a relevant issue, which I will return to.
5. The defendant's SWMS contained, at entry number 7, the task of "Taking delivery of the AFS Panels". The potential hazards identified included "objects falling from height" and "possible traffic/pedestrian hazards". The initial risk rating was stated to be "1". This was the highest risk rating representing a serious risk of death, permanent disability or serious injury that was very likely or likely to happen. The hierarchy of control measure implemented was stated to be the 3rd priority, being "isolating the hazard from anyone who could be harmed". The control measures identified were: 1. Set up exclusion zone using traffic controls by the head contractor; 2. Only qualified dogmen to attach and direct load; 3. Pallet Lifter to be used in accordance with crane SWMS and manufacturer's instructions; 4. AFS lifting gear to be visually checked for certification; and 5. AFS SWMS must be read in conjunction with this SWMS.
6. The residual risk for the task after the control measures were implemented was assessed as "4", indicating that the task was very unlikely to involve a serious injury. The persons identified with responsibility for implementing the control measures were "Head Contractor, Crane Operator, Dogman, HD employee directing delivery". This was the only task in the defendant's SWMS that identified the use of the Pallet Hook.

Systems of work following the incident

1. After the incident the defendant took the following steps: 1. it conducted a toolbox talk on 15 December 2017 to discuss the incident and identify the relevant control measures; 2. it re-inducted its workers into their SWMS; 3. investigated the incident to determine the cause to be "pallet lifter was placed in 2nd last panel not bottom as being lifted bottom panel slipped out falling onto a scaffolder. Crane only had one dogman he was on slab and Mark was loading them from below."

The investigation

1. On 15 December 2017 Inspector Ball and Inspector Mizzi attended the site to make observations and to record the details necessary for the investigation of the incident to be allocated to a lead investigator.
2. Inspector Ball had a conversation with Mr Hamburger, about which she made notes in her notebook. Mr Hamburger stated that there had been a delivery of 11-12 pallets of panels on that day that were being moved by the crane to level 1 of stack 2. The tynes of the Pallet Hook were intended to pass through the bottom panel, but passed through the second panel. The bottom panel fell when the pack was lifted, because it was only being held in place by the plastic. The panel fell about 5m onto the injured workers who were waiting for the crane to move their equipment to level 1 of stack 2.
3. Inspector Ball had a conversation with Mr Ramm, about which she made notes in her notebook. Mr Ramm was filling in for a crane operator who was sick. He had moved 6-8 packs of panels before the incident. He was unsure of the precise number. The dogman was up on level 1 landing the loads. A HD Projects worker was assisting in loading the panels onto the Pallet Hook. He was not a dogman.
4. On 19 December 2017 Inspector Mizzi issued two Improvement Notices to the defendant relating to eliminating or minimising the risks associated with falling objects during the cranage work.
5. On 22 December 2017 Mr Georges sent an email to Inspector Mizzi relating to the steps taken by the defendant to comply with the Improvement Notices. The email included the following: Firstly, I'd like to start by saying that on behalf of HD Projects, we would like to thank you and SafeWork NSW for your guidance in this unfortunate matter. We accept both Improvement Notices handed to us and hope that this response, noting our revised control measures implemented, in accordance to the Work Health and Safety Regulation 2017, has shown the improvement required. I have taken your advice and read over clause 38 (review of control measures) of the Work Health and Safety Regulation 2017. I'd like to think that I am more aware of the control measures required to minimise the risk on site, so that our staff can return home every day safely to their loved ones. … Since the day of the incident (FRIDAY the 15th of December), we at HD Projects have taken immediate action into bettering ourselves to hopefully avoid the situation from ever happening again. We know we cannot eliminate the risk associated with an object falling on a person, but we know we can minimise the risk by developing, implementing and maintaining a safe system of work. The best safe system of work is our Safe Work Method Statement (SWMS), as you pointed out to me, after reading the section in regards to this matter, on the day of the incident.
6. The email continued to outline the content of task number 7 in the defendant's SWMS and to state what the relevant control measures were as set out in [35] above.
7. On 6 February 2018 Inspector Halcroft was appointed to be the lead investigator of the incident.
8. On 16 March 2018 Jinsong Cui, a director of Arise, sent an email to Inspector Halcroft providing Arise's response to a s 155 Notice issued to it seeking answers to formulated questions. The parties tendered the questions and answers, to questions 5 and 6 of the Notice, that provided: 5. What was the work that Arise was conducting on 15th December 2017 at 22 Stone Mason Drive, Lot 21-122 Windsor Rd, Kellyville (the site)? A. Mobile crane lifting AFS logicwall wall panels and scaffolding materials to the first floor of stacks 2 and 3. The following works were also being carried out at the site: Scaffolding at stack 1; Formworks at stack 5; Plumbing at stack 7; Roof trusses at stack 8; Electrical at stack 8; Gyprock at stack 9; and Metal roof cladding at stack 9. 6. What was the scope of works for the site? A. The project is for the construction of 58 townhouses at the site and consists of the following work: top soils and demolition of one house; excavation; concrete piles; dincel retain wall; concrete slab on the ground; AFS wall system; formwork; steelfixing and concreting; aluminium door & window system; timber roof trusses; metal cladding roof and metal cladding wall; electricals; plumbing including gas, stormwater sewer & recycling water; NBN; private road construction; scaffolding; mechanical and AC; gyprock, render, painting; kitchen cabinets, wardrobe vanity; bedroom wardrobe, waterproofing, tiling
9. On 23 April 2018 Inspector Halcroft conducted an interview with Mr Dessens that was recorded and later transcribed. Mr Dessens' evidence can be summarised as follows.
10. Mr Dessens stated that he worked intermittently for the defendant at the site. He believed that he first worked at the site on 5 December 2017. He was shown the defendant's SWMS but denied signing it or that his name that was handwritten on the last page of the document was in his handwriting. Mr Dessens stated that he had not seen the defendant's SWMS before. Mr Dessens stated that on the day of the incident that he was loading the packs of panels onto the pallet lifter. He said that he taught himself how to do it and had done it many times. After the incident he thought that he must have put the tynes in the second panel, but he was pretty sure that he put them in the first panel. He was told what to do by one of the HD Project guys, but he could not remember which one. He stated that he may have been told to do it by the mate of the crane driver, but he did not remember. Nobody showed him what to do, he had just seen other people do it. Mr Dessens stated that he had done this "just maybe one time before". Looking at the photographs of the pallet lifter, Mr Dessens did not recall it having straps next to the tynes. Mr Dessens did not recall anyone working in the area with him.
11. Mr Dessens' Record of Interview was tendered by consent and he was not required for cross-examination. I am satisfied that I should accept his evidence, but I note that there are internal inconsistencies in his evidence. The issue is whether or not I can rely on it to prove the elements of the offence beyond reasonable doubt. I will return to that issue in deciding Element 3.
12. On 4 May 2018, Mr Daish sent an email to Inspector Halcroft providing the defendant's response to a s 155 Notice issued to it seeking answers to formulated questions. The parties tendered the following questions and answers: 6. What was the work that HD Projects Pty Ltd (HD) was conducting at [the site] on 15 December 2017? A: HD were installing the AFS wall system. 7. Who from HD was in control of the work activities at the site? A: Paul Georges and Adam Hamburger. 8. What was the scope of works at the site? A: Install the AFS system in accordance with the scope on the HD quote. Questions 15-36 have been answered in consultation with Adam Hamburger (exact details not under my knowledge) 16. What consultation occurred between the crane crew and other workers on the site? A: HD are not aware of any consultation that took place between the crane crew and other workers, however HD's worker Sam Elarchi was preparing space on L1 slab for the landing of the pallets by the dogman and showing the dogman where each pallet should be landed. 17. How many packs had the crane moved before the incident? A: Around 14 pallets 18. Who told Marc Dessens to sling the AFS packs? A: We do not know who told Marc to handle the pallet lifter. No-one from HD instructed him to that position so we can only assume it was a direction of the crane crew. 19. Who inducted Marc Dessens to the SWMS? A: Adam Hamburger. 20. How many packs did he sling before the incident? A: We do not know. 21. What training was he provided in using the pallet lifter? A: HD did not provide any training to Marc for the pallet lifter, as he was not supposed to be performing that task. 22. What experience did he have working with mobile cranes? A: We do not know his experience with mobile cranes. 23. When did he start working at the site? A: Marc started in this site on 5th December 2017 for 1 day, was inducted by HD that morning and signed into our SWMS. He then did not return to site until 14th December 2017. 24. What were his duties on site? A: Cleaning and de-bracing walls. 26. Why was he told to sling the AFS panels? A: We don't know. 31. Who was responsible for establishing an exclusion zone around the crane operating area? A: Arise were responsible for establishing exclusion zones and controlling the site. 32. Why wasn't an exclusion zone established in accordance with HD's SWMS? A: We do not know the reason why an exclusion zone was not established by Arise. 34. Who conducted the risk assessment on 1 August 2017? A: HD's SWMS are dated 1 October 2017. It was prepared by HD's office and reviewed by myself. [2] 36. What steps did HD take to consult and coordinate activities with other subcontractors and workers likely to be affected by the work activities on 15 December 2017? A: Co-ordination of the day's activities was undertaken on the day before through consultation with Arise. Arise would then direct the subcontractors and activities accordingly. 38. What remedial steps were taken as a result of the incident? A: HD performed toolbox meeting immediately before any further work was undertaken on-site, ensuring all HD workers knew of the incident, its cause and pathway to elimination of the hazard. HD also re-inducted their workers into their SWMS and ensured that they were inducted into the site by Arise. Further to this, I engaged a company called Recovery Partners to undertake 3 sessions of risk management for supervisors and managers in January 2018. They spoke to around 40 of our management staff over the 3 sessions to refresh awareness and understanding. [3]
13. On 25 May 2018 Mr Ramm provided Inspector Halcroft with responses to particular questions posed to AC in a s 155 Notice. From the select questions and answers tendered by the parties, the following matters are established. Mr Ramm did not know who directed Mr Dessens to sling the loads, who showed Mr Dessens how to use the pallet lifter or who was supervising him. Mr Ramm stated that an exclusion zone was not put in place in accordance with AC's SWMS because in slewing right the load was being lifted over a driveway and the load was not going over anyone. Mr Ramm stated that after the incident, AC implemented the use of two dogmen.
14. On 15 June 2018 Mr Cui sent an email to Inspector Halcroft providing Arise's response to a later s 155 Notice issued to it seeking answers to formulated questions. The parties tendered the question and answer to item 4 on the notice to the effect that on 1 August 2017 there were about 50 workers on the site.
15. Inspector Halcroft did not seek to speak to or conduct a formal interview with anyone from Arise. She knew that the following persons were employed by or associated with Arise: Mr Zhang a site manager, Mr Xue a site manager, Carlos Carrapico the site safety manager, and Mr Cui a director.
16. Inspector Halcroft did not seek to speak to or conduct a formal interview with anyone from AC. She knew that Mr Ramm and Mr Kerr were working for AC at the site on the day of the incident.

The evidence of Mr Ramm

1. Mr Ramm was called to give evidence and his evidence can be summarised as follows. Mr Ramm was operating the crane on the day of the incident because one of his employees had called in sick. AC had been engaged by Arise to supply the mobile crane and the services of a crane operator and one dogman. Prior to the incident, AC had supplied a crane about once per week to the site to undertake lifts of various materials. The only work that Mr Ramm personally performed at the site was on the day of the incident. Mr Ramm's evidence was that Mr Hamburger was the defendant's foreman on site, but that he did not recall any conversations with him on the day.
2. Mr Ramm said that he was at the site for three to four hours before the incident, and about two hours was needed to set up the crane. The packs of panels were being loaded by Mr Dessens and landed by Mr Kerr on level 1 of stack 2. Mr Ramm estimated that Mr Dessens loaded about 10 packs before the incident occurred. Mr Ramm did not have full visibility of Mr Dessens while he was loading the packs. Mr Ramm was in radio communication with Mr Kerr but had no organised form of communication with Mr Dessens. Mr Ramm said that Mr Dessens did not use proper hand signals, but that sometimes even experienced dogmen do not use the proper hand signals. Mr Ramm gave evidence that on the morning of the incident he had asked Mr Dessens if he was a dogman and he said he was.
3. AC conducted an investigation into the incident and concluded that a number of steps should have been taken including setting up an exclusion zone and having a second dogman on the job. Mr Ramm did not know who gave instructions to Mr Dessens to load the Pallet Hook or how to do it. Mr Ramm did not observe anyone supervising Mr Dessens.
4. In cross-examination, Mr Ramm said that he had experience of unloading similar panels with a crane from the back of a truck on another site. At this site, the panels were taken off the truck and brought to the crane on a forklift, because the site did not have sufficient room for a semi-trailer to enter and manoeuvre between the stacks.
5. I do not accept Mr Ramm's evidence that he thought Mr Dessens was a dogman for the following reasons. First, he made an admission to Inspector Ball on the day of the incident that Mr Dessens was not a dogman. That admission was not qualified by the claim that Mr Dessens had told him that he was a dogman. Second, Mr Ramm observed that Mr Dessens was not using proper hand signals. Third, Mr Ramm's evidence on this point is self-serving. Fourth, there was no suggestion in AC's responses to the s 155 Notice to the effect that Mr Ramm had been misled about the qualifications of Mr Dessens. If that was true, it was a significant mitigating factor that I would have expected to be included in AC's responses. Fifth, I observed Mr Ramm's demeanour at the time he gave this evidence and he struggled to get his words out and he appeared flustered. I got the impression from his appearance that he knew that he was not giving honest evidence on this issue.

The elements of the offence

1. The prosecution bears the onus of proving the elements of the offence beyond reasonable doubt. There is no onus on the defendant. It is not for the defendant to prove its innocence, but for the prosecution to prove its guilt and to prove it beyond reasonable doubt.
2. Section 32 of the Act provides: A person commits a Category 2 offence if: (a) the person has a health and safety duty, and (b) the person fails to comply with that duty, and (c) the failure exposes an individual to a risk of death or serious injury or illness.
3. The elements of the s 32 offence for a breach of the s 19(2) duty are:

• Element 1 The defendant was conducting a business or undertaking;
• Element 2 The defendant owed a health and safety duty to ensure, so far as was reasonably practicable, the health and safety of other persons is not put at risk by the work carried out as part of the business or undertaking;
• Element 3 The defendant failed to comply with its health and safety duty; and
• Element 4 The failure exposed an individual to a risk of death or serious injury.

The relevant law

1. The offences are strict liability offences: section 12A of the Act.
2. 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 an employee, a contractor or subcontractor or an employee of a contractor or subcontractor: section 7 of the Act.
3. Section 14 of the Act provides that a duty provided for by the Act is not transferable.
4. Section 16 of the Act provides: (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.
5. The content of the duty is set out in section 19(3) of the Act, which relevantly provides: (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 (b) the provision of safe plant and structures, 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.
6. The inclusive list of specific obligations set out in section 19(3) of the Act have each been identified at common law.
7. The requirement to 'ensure' means to guarantee or make certain: Carrington Slipways Pty Ltd v Callaghan (1985) 11 IR 467 at 470.
8. Safety cannot be ensured if a risk to the health and safety of a worker exists. The existence of the risk constitutes a breach of section 19 of the Act. It is not necessary that there is an accident or that a person is injured: Kirk v Industrial Court of New South Wales (2010) 239 CLR 531 at [13]. The relevant risk for the commission of the section 32 offence is the risk of death or serious injury.
9. The word "risk" is not defined in the Act. Risk means the mere possibility of danger and not necessarily actual danger: R v Board of Trustees of the Science Museum [1993] 1 WLR 1171 and Thiess Pty Ltd v Industrial Court of New South Wales (2010) 78 NSWLR 94 at [67].
10. An incident causing injury may be evidence of the presence of a risk and may be relevant 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 and Director of Public Prosecutions v Vibro-Pile (Aust) Pty Ltd (2016) 49 VR 676 at [3]-[6].
11. A duty imposed to ensure health and safety requires the person to eliminate risks to health and safety so far as that is reasonably practicable, and if that cannot be done, to minimise those risks so far as is reasonably practicable: section 17 of the Act. The risk should be identified with sufficient precision to determine if it was reasonably practicable to eliminate it or minimise it.
12. "Reasonably practicable" is defined in section 18 of the Act. The Court must take into account and weigh up all relevant matters including; 1. the likelihood of the risk concerned occurring, and 2. the degree of harm that might result from the risk, and 3. what the defendant knows, or ought reasonably to know, about 1. the risk, and 2. ways of eliminating or minimising the risk, 1. the availability and suitability of ways to eliminate or minimise the risk, and 2. after assessing the extent of the risk and the available ways of eliminating or minimising the risk, the cost associated with either of those options, including whether the cost is grossly disproportionate to the risk.
13. The state of knowledge applied to the definition of practicable is objective. It is that possessed by persons generally who are engaged in the relevant field of activity and should not be assessed by reference to the actual knowledge of a specific defendant in particular circumstances: Laing O'Rourke (BMC) Pty Ltd v Kirwin [2011] WASCA 117 at [33].
14. The reasonably practicable requirement applies to matters which are within the power of the defendant to control, supervise and manage: Slivak v Lurgi (Aust) Pty Ltd (2001) 205 CLR 304 at [37] per Gleeson CJ, Gummow and Hayne JJ.
15. The phrase "exposed to risks" contained in section 8(2) Occupational Health and Safety Act 2000 was interpreted to mean that a person was sufficiently proximate to the source of a risk for the risk to come home, irrespective of the mechanism by which that could happen: Thiess.
16. The section 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 at [68].
17. 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.
18. The words "reasonably practicable" indicate that the duty does not require a duty holder to take every possible step that could be taken. The steps to be taken in performance of the duty are those that are reasonably practicable for the duty holder 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 Ltd v R (2012) 246 CLR 92 at [15], [33] and [38] per French CJ, Gummow, Hayne and Crennan JJ.
19. A duty holder must have a proactive approach to safety issues. The question is not did the duty holder envisage a particular danger, but rather, should it have: WorkCover Authority of New South Wales v Kellogg (Aust) Pty Ltd [1999] NSWIRComm 453.
20. A duty holder must have a structured and systematic approach to risk management: WorkCover Authority of NSW v Atco Controls Pty Ltd (1998) 82 IR 80 at 85 per Hill J and Inspector Ching v Bros Bins Systems Pty Ltd [2004] NSWIRComm 197 at [32].
21. A duty holder 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) 87 CLR 313 at 320 per Dixon CJ. If there is a foreseeable risk of injury arising from a worker's negligence in carrying out his or her duties then this is a factor which the duty holder must take into account: Smith v Broken Hill Pty Ltd (1957) 97 CLR 337 at 343. It may not always be possible to foresee various acts of inadvertence by workers but duty holders must conduct operations on the basis that such acts will occur and they must be guarded against to the fullest extent practicable.
22. The unforeseeable behaviour of a disobedient worker may well lead to the happening of an event that could not be reasonably foreseen and therefore was not reasonably practical to guard against: WorkCover Authority of New South Wales v Kirk Group Holdings Pty Ltd (2004) 135 IR 166 at [129].
23. One of the matters duty holders must recognise and plan for is the inevitability of human error ranging from inadvertence, inattention or haste through to foolish disregard of personal safety and deliberate non-compliance with safe systems of work: R v Commercial Industrial Construction Group Pty Ltd (2006) 14 VR 321 at [49] and Director of Public Prosecutions v JCS Fabrications Pty Ltd and JMAL Group Pty Ltd [2019] VSCA 50 at [51].
24. Where an employer is found to have laid down a safe and proper practice and there is no evidence that the employer failed to use due diligence to see that the practice is observed, then a casual failure by inferior employees, even if of supervisory rank, to observe that practice on a particular occasion will not render the employer criminally liable for a failure to ensure safety: Collins v State Rail Authority of New South Wales (1986) 5 NSWLR 209 at 215E.
25. The question of what is reasonably practicable is also a question of fact, depending on the circumstances of each case. The fact that an employee has carried out work carelessly or omitted to take a precaution does not preclude the employer from establishing that everything that was reasonably practicable in the employer's undertaking to ensure that persons were not exposed to risks to their health and safety had been done: R v Nelson Group Services (Maintenance) Ltd [1998] 4 All ER 332 at 351e-f.
26. Reliance on a person with specialist skills or knowledge is a relevant consideration: Kirwin v The Pilbara Infrastructure Pty Ltd [2012] WASC 99 and Nash v Resource Pacific Pty Ltd (No 3) [2018] NSWSC 45 at [423]-[429]. For example, where a contracting party relies on a specialist contractor to perform a task demonstrably within the contractor's area of expertise, it would not ordinarily be practicable for it to do more, provided that the task undertaken reasonably appeared to have been carefully and safely performed by the contractor: Hammersley Iron Pty Ltd v Robertson (unreported WASC 2 October 1998).
27. Section 275 of the Act provides that an approved code of practice is admissible in proceedings for an offence against the Act as evidence of whether a duty under the Act has been complied with. The court may have regard to the code as evidence of what was known about a risk or the measures available to control a risk, and may rely on the code to determine what is reasonably practicable in the circumstances to which the code relates.

Causation

1. The relevant question on causation is whether 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].
2. 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) 172 CLR 378.
3. 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 injury to the worker, but rather whether there was a causal relationship between the act or omission and the risk to which the worker was exposed: Bulga Underground at [130].

Issue 1 - Was the cranage work, "work carried out as part of the conduct of the [defendant's] business or undertaking" as referred to in s 19(2) of the Act?

1. Issue 1 is relevant to Element 2 of the charge.
2. The defendant contended that in its contract with Arise, the cranage work, was work that it was expressly not responsible for. The defendant contended that the prosecutor pleaded that it was an installer of the panels and that the prosecutor was bound by that allegation, because it was the case that the defendant came to Court to meet.
3. I accept that the defendant quoted on the basis that Arise would engage a contractor to do the cranage work, that Arise accepted the defendant's quotation and in doing so, the contract between Arise and the defendant came into existence. It follows that the defendant was not contractually obliged to do the cranage work and that it was not engaged to do the cranage work.
4. In 4 of the Summons the prosecutor alleged that the defendant was engaged to install the panels, but it also went on to allege that this included "directing loads of [panels] being lifted by crane to certain areas of the site" because the defendant had management or control of the panels and the Pallet Hook. In [7] of the Summons, the prosecutor alleged that Mr Graff and Mr Sitauti were put at risk from the work carried out as part of the defendant's conduct of its business or undertaking.
5. Paragraph 4(b) of the Summons could have been more explicit to plead that the work being conducted as part of the defendant's business or undertaking included Mr Dessen's work. However, considered as a whole, I am satisfied that it was clear from the pleading that the prosecutor alleged that Mr Graff and Mr Siuati were put at risk by the cranage work and that the defendant had involved itself through Mr Dessens in that work. The defendant did not object to the evidence adduced by the prosecutor that supported this allegation. If I am wrong on this interpretation, s 16(2) Criminal Procedure Act 1986 provides that no objection can be taken or allowed on the Summons [4] on the grounds of any variance between it and the evidence adduced in the proceedings for the offence and this would be an appropriate case to allow the prosecutor to amend 4 of the Summons, if that was necessary.
6. I am not satisfied that the defendant's contentions should be accepted because they do not address the language used in s 19(2) of the Act. The s 19(2) duty is to ensure, in so far as is reasonable 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 (emphasis added).
7. In WorkCover Authority of NSW v E & T Bricklaying Pty Ltd [2015] NSWDC 369, Judge Kearns SC rejected the argument that a worker was not "at work in the business or undertaking" by performing work that his employer was not engaged to do. In that case, the supervisor of a bricklaying contractor was asked by the director of the principal contractor to assist him by doing a task that the bricklaying contractor was not contractually obliged to perform or engaged to do. Judge Kearns at [47]-[48] decided that by requiring its employee to undertake the task, that the bricklaying contractor accepted the task as part of its work for that day and it was part of its business or undertaking.
8. E & T Bricklaying is not precisely on point because the employee's supervisor expressly directed him to perform the work, whereas in the present case the defendant asserted that no-one from the defendant directed Mr Dessens to load the Pallet Hook. However, for the reasons that follow, I am satisfied that the same result should follow where Mr Dessens was acting in accordance with his actual or apparent authority, because he had not been adequately trained or supervised in his role at the site, including by being prohibited from loading the Pallet Hook.
9. Section 244 of the Act provides: (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. (2) If an offence under this Act requires proof of knowledge, intention or recklessness, it is sufficient in proceedings against a body corporate for that offence to prove that the person referred to in subsection (1) had the relevant knowledge, intention or recklessness. (3) If for an offence against this Act mistake of fact is relevant to determining liability, it is sufficient in proceedings against a body corporate for that offence if the person referred to in subsection (1) made that mistake of fact.
10. Section 244 of the Act is a deeming provision that has the effect of facilitating proof of the responsibility of a corporation and it is designed to attribute conduct to the corporation for which it would not otherwise be responsible: Walplan Pty Ltd v Wallace (1985) 8 FCR 27 at 38 per Lockhart J. In order to invoke the deeming provision the employee engaging in conduct must be acting within the actual or apparent scope of his or her employment and/or an agent must be acting within their actual or apparent authority.
11. The defendant contended that Mr Dessens was not an employee or agent as defined in s 244 of the Act. The defendant made no specific submission relating to Mr Dessens' scope of employment or his authority to act. I will deal with each of these matters in turn.

Was Mr Dessens an employee or agent of the defendant?

1. "Employee" is not defined by the Act and it therefore takes on its ordinary meaning. The online Macquarie Dictionary definition provides that an employee is "a person working for another person or a business firm for pay". As a matter of law, a labour hire worker is not an employee but has a relationship with the host employer that is analogous to an employer/employee relationship: TNT Australia Ltd v Christie (2003) 65 NSWLR 1 at [41]. However, the meaning of employee in the Act must be determined by reference to the objects of the Act and the context in which the term is used, rather than by reference to its legal meaning.
2. In the present context, the application of the legal meaning of employee would ascribe the conduct of a person to the body corporate, only if the body corporate had a direct relationship of employment with the person and not if the person was engaged as a labour hire worker, notwithstanding that the body corporate has the same control over an employee as it has over a labour hire worker. In my view, the ordinary meaning of employee should be used in interpreting s 244 of the Act, and by applying the definition I have set out above, Mr Dessens was an employee of the defendant and his conduct of loading the Pallet Hook was conduct of the defendant.
3. "Agent" is also not defined by the Act and it therefore takes on its ordinary meaning. When used in legislation, the meaning of "agent" is determined by the objects of the Act and the context in which the term is used, rather than by reference to its legal meaning: Kench v Adams (1906) 23 WN (NSW) 48. The online Macquarie Dictionary definition of agent includes "a person acting on behalf of another". At common law, a person may be an agent by being engaged by the principal to provide a service to the principal: Gino Dal Pont, The Law of Agency, 3rd edition, Lexis Nexis, Sydney, 2013 at [1.3]. In Kench, the statute prohibited the sale of adulterated milk by dairymen or their agents. The defendant, a dairyman, was charged with breaching this prohibition by appointing an agent to make the sale, who then employed a third party who actually made the sale. The defendant argued that a sale had not been effected by his agent. Pring J held that, given the object of the statutory prohibition, the word "agent" should receive a liberal construction to include any person who sells goods of the defendant when the money generated by the sale goes into the defendant's pockets.
4. If I am wrong in my conclusion that Mr Dessens was an employee, then I am satisfied that Mr Dessens was an agent of the defendant.

Was Mr Dessens acting outside of the scope of his employment or his actual or apparent authority?

1. The defendant contended that Mr Dessens was trained in the defendant's SWMS and that task 7 of the SWMS made plain that the use of the Pallet Hook was a job for a qualified dogman. In its s 155 response, the defendant stated that the use of the Pallet Hook was not a task that Mr Dessens was supposed to be performing, it was a task that he had not been asked to perform by the defendant and that he had not been trained by the defendant to do that work.
2. Mr Dessens stated in his ROI that he had not been shown the defendant's SWMS before the incident and that his signature did not appear on the document. He stated that where his name was handwritten on the document, it was not in his handwriting. A comparison of his handwritten name on one of the documents completed by him for HLH corroborates that evidence.
3. The fact that Mr Dessens was performing the task supports an inference that he was not trained, adequately or at all, in the requirements of the defendant's SWMS.
4. I do not accept the assertion by the defendant that Mr Dessens was trained on the SWMS for the reasons that follow. Mr Dessens had no interest in the outcome of the proceedings and his evidence was more independent than the assertion made by the defendant. By comparison, the defendant's assertion was aligned with its interest in the outcome of the proceedings. Mr Dessens did not indicate in the usual way, by signing an acknowledgment at the rear of the document, or at all, that he was aware of the content of the defendant's SWMS. Mr Dessens acted inconsistently with the control measures specified in the SWMS.
5. I am satisfied that Mr Dessens involved himself in loading the Pallet Hook because he reasonably believed it was part of the work he was hired to perform. He had not been prohibited from doing that work through his training or by any instruction from a supervisor. It was reasonable for Mr Dessens to think that the work that he did loading the Pallet Hook was necessary for the cranage work to occur and that the cranage work was a necessary precursor to installing the panels.
6. I am satisfied that Mr Dessens was acting within the scope of his employment or within his actual or apparent authority.
7. I am satisfied that the conduct of Mr Dessens was conduct of the defendant and that it was work carried out as part of the defendant's business or undertaking.

Issue 2 - Was the work of lifting the panels using the crane part of a business or undertaking operated by Arise, AC, Erectus and the defendant, such that Mr Graff and Mr Sitauti were "workers" as referred to in s 19(1) of the Act?

1. Issue 2 is relevant to Elements 1 and 2 of the offence.
2. Section 5 of the Act provides: (1) For the purposes of this Act, a person conducts a business or undertaking-- (a) whether the person conducts the business or undertaking alone or with others, and (b) whether or not the business or undertaking is conducted for profit or gain. (2) A business or undertaking conducted by a person includes a business or undertaking conducted by a partnership or an unincorporated association. (3) If a business or undertaking is conducted by a partnership (other than an incorporated partnership), a reference in this Act to a person conducting the business or undertaking is to be read as a reference to each partner in the partnership. (4) A person does not conduct a business or undertaking to the extent that the person is engaged solely as a worker in, or as an officer of, that business or undertaking. (5) An elected member of a local authority does not in that capacity conduct a business or undertaking. (6) The regulations may specify the circumstances in which a person may be taken not to be a person who conducts a business or undertaking for the purposes of this Act or any provision of this Act. [5] (7) A volunteer association does not conduct a business or undertaking for the purposes of this Act. (8) In this section, "volunteer association" means a group of volunteers working together for one or more community purposes where none of the volunteers, whether alone or jointly with any other volunteers, employs any person to carry out work for the volunteer association. Note : A person may be both a "person conducting a business or undertaking", within the meaning of this section, and a "worker" within the meaning of section 7.
3. The defendant contended that, by application of s 5 of the Act, that the business or undertaking being conducted at the site was a joint business or undertaking conducted by Arise, AC, Erectus and the defendant (the joint venture). If that is correct, it follows that Mr Graff and Mr Sitauti were "workers" within the meaning of ss 7 and 19(1) of the Act for the joint venture and could not be "other persons" as referred to in s 19(2) of the Act.
4. It is well settled that the term "other persons", when used in s 19(2) of the Act, is a reference to persons other than "workers" who are owed the duty provided for by s 19(1)of the Act: SafeWork New South Wales v Rawson Homes Pty Ltd [2016] NSWDC 237 and S Kidman & Co Ltd v Dr John Lowndes CM and Director of Public Prosecutions (NT) [2016] NTCA 5 at [62].

The relevant PCBU

1. I accept that the definition of a person conducting a business or undertaking (PCBU) is a wide one and it is intended to cover a breadth of commercial and other activity. However, I do not accept the defendant's argument for two reasons.
2. First, the prosecutor alleged in [1] of the Summons that the defendant was a PCBU within the meaning of s 5 of the Act. In my view, that is the only relevant PCBU to be established for the purposes of the charge. The evidence demonstrates that the defendant was a corporation conducting a business supplying and installing the panels at the site for profit. On that basis, I am satisfied beyond reasonable doubt that the defendant was a person conducting a business or undertaking.
3. Second, if the defendant's argument is accepted, the same result follows, by operation of s 5(3) of the Act. An essential element of an entity being a PCBU is that it is a person. Section 32 Interpretation Act 1987 provides that "person" includes an individual, a corporation and a body corporate or politic". The joint venture does not come within that definition of person.
4. Section 5(2) of the Act provides that a PCBU includes a business or undertaking conducted by a partnership. In my view, the evidence does not support a finding that the joint venture was a partnership. There was no evidence of any of the usual indicia of a partnership, such as profit sharing or the existence of fiduciary obligations between the relevant parties. On the evidence I am satisfied to the contrary, that each of Arise, AC, Erectus and the defendant operated independently of the other and the only obligations owed by any of them inter parte were contractual in nature and specifically related to the project.
5. If the joint venture was a partnership contrary to this conclusion, s 5(3) of the Act provides that if a business or undertaking is operated by a partnership then each partner is a PCBU. This dictates the same result, that the defendant is a PCBU as alleged in [1] of the Summons.
6. It follows that Mr Graff and Mr Sitauti were not workers for the joint venture and that is sufficient to defeat the defendant's argument on issue 2. The defendant did not contend that Mr Graff and Mr Sitauti were workers for the defendant.

Conclusion on Issues 1 and 2

1. I am satisfied beyond reasonable doubt that the defendant was conducting a business or undertaking and that it owed a duty to Mr Graff and Mr Sitauti pursuant to s 19(2) of the Act.

Element 3 - Did the defendant fail to comply with its health and safety duty by failing to take the steps particularised in [11] of the Summons?

1. The prosecutor is required to demonstrate the particular measures that should have been taken to prevent the risk identified: Kirk at [37].
2. In order to find Element 3 established I must be satisfied beyond reasonable doubt that the defendant failed to comply with its health and safety duty by failing to take the steps set out in the particulars of breach in [10] of the Summons and that the steps were reasonably practicable.
3. I will now deal with the common matters that are of relevance to the issue of whether the pleaded measures in [10] of the Summons were reasonably practicable.

The pleaded risk

1. The pleaded risk in [9] of the Summons is the risk of being struck or crushed by objects falling from height, such as those being lifted by a crane.

The likelihood of the risk occurring

1. The likelihood of the risk occurring was rated by the defendant's SWMS as being very likely to happen or likely to happen if appropriate control measures were not taken.

The degree of harm

1. The degree of harm that might eventuate was recorded in the defendant's SWMS as a risk of death and serious injury.

The defendant's knowledge of the risk and the ways of eliminating or minimising the risk

1. The defendant's SWMS recognised the risk and the ways of eliminating or minimising the risk. I am satisfied that the defendant had actual knowledge of the risk and the appropriate control measures.
2. The defendant contended that task number 7 in the defendant's SWMS referred only to the task of unloading the panels from a truck with a crane when they were delivered to site. I do not accept that argument for two reasons. First, task number 7 was the only task in the defendant's SWMS that referred to the use of the Pallet Hook. Accordingly, the defendant knew that the pleaded risk was associated with the use of the Pallet Hook and that the control measures were necessary to eliminate or minimise the pleaded risk when the Pallet Hook was being used. Second, Mr Georges in his email to Inspector Mizzi, accepted that the defendant's SWMS recognised the risk that came home in the incident and that it provided for the appropriate control measures. This is corroborated by the evidence that immediately after the incident, the defendant retrained its workers on the content of the SWMS as a way of responding to the incident.
3. The defendant knew that the panels had been delivered to site on the morning of 15 December 2017 because Mr Hamburger signed the delivery dockets acknowledging receipt of the panels and the Pallet Hook. It was obvious and would have been known to Mr Hamburger that the cranage work was a necessary precursor to the installation of the panels.
4. When the cranage work took place, the defendant's workers, Mr Elarchi and Mr Dessens, undertook tasks that were essential to the completion of the work. Mr Dessens loaded the packs onto the Pallet Hook and Mr Elarchi was directing where they were to be landed on level 1 of stack 2.
5. Mr Hamburger completed the injury report forms shortly after the incident and was present when the Inspectors arrived. He identified himself to Inspector Ball as being the defendant's supervisor on site and told her what he understood to have occurred in the incident. On all of the evidence, I am satisfied that Mr Hamburger was on site on the morning of the incident and in control of the defendant's work.
6. Mr Hamburger knew of the content of the defendant's SWMS because he had signed it and he was responsible for training other workers on its content.
7. It was obvious that the control measures identified in the defendant's SWMS were not being put in place.
8. Mr Hamburger knew or ought to have known that the defendant's workers were participating in the cranage work and that by doing so, they were being exposed to the pleaded risk unless the appropriate control measures were put in place.
9. I will now turn to each of the pleaded particulars of breach of duty.

(a) Establishing, maintaining and enforcing an exclusion zone (or ensuring so far as is reasonably practicable that one was established, maintained and enforced) whilst any crane work was in progress, through any combination of impassable barricades, physical barriers, signage, high-visibility tape, directions, procedures and/or prohibitions, so that no persons were in the fall-zone underneath any suspended load.

1. It was common ground that no exclusion zone was established on the day of the incident for the cranage work to take place. The defendant's SWMS specified that an exclusion zone was an appropriate control measure to be taken. The AFS SWMS, which was incorporated by reference into the defendant's SWMS, also specified an exclusion zone to be an appropriate control measure. AC's SWMS also specified that an exclusion zone was a necessary control measure.
2. The defendant's SWMS listed the head contractor, which I infer was a reference to Arise, was one of the persons responsible for putting in place the relevant control measures.
3. Arise, as principal contractor, had control of the site and its permission would have been required to establish an exclusion zone. As principal contractor, Arise was obliged to have in its possession and to analyse the suitability of the SWMSs of AC and the defendant. Accordingly, Arise knew that it would be necessary to have exclusion zones put in place when the crane was operating on site. AC was engaged by Arise and I infer that Arise was responsible for arranging for the crane to be present on site on the day of the incident.
4. Mr Ramm's evidence was that he did not set up an exclusion zone because he was initially operating the crane over an area where no workers were located. He did not suggest that there was any impediment to setting up an exclusion zone on the day of the incident or that he was given any direction by Arise or anyone else about setting up an exclusion zone.
5. The defendant stated in its s 155 response that Arise was responsible for establishing an exclusion zone and that it did not know why an exclusion zone was not set up on the day of the incident. There was no evidence in the s 155 response that the defendant did anything to ensure that Arise set up the exclusion zone.
6. There was no evidence from anyone at Arise about the lack of an exclusion zone on the day of the incident. A number of people from Arise with knowledge of the work at the site were identified by the Inspectors during the course of the investigation, but no evidence was obtained from them, other than responses to a s 155 Notice signed by Mr Cui. Only three of the answers provided by Mr Cui were tendered and they are not relevant to this issue. There being no evidence, I must not speculate on what the evidence may have been.
7. Where a witness who might have been expected to be called to give evidence is not called by the prosecution, the question is not whether the trier of fact may properly reach conclusions about issues of fact, but whether in the circumstances they should entertain a reasonable doubt: Mahmood v Western Australia (2008) 232 CLR 397 at [27].
8. The defendant knew that no exclusion zone had been put in place. The defendant knew that its workers, Mr Elarchi and Mr Dessens, were involved in the cranage work. The defendant knew that the risk identified in its SWMS was not being controlled as intended because there was no exclusion zone in place for the cranage work. I infer from its s 155 response that the defendant did nothing to ensure that the exclusion zone was set up.
9. I am satisfied beyond reasonable doubt that the defendant failed to take the reasonably practical step of ensuring that Arise set up the exclusion zone that was identified as an appropriate control measure in the defendant's SWMS, the AFS SWMS and AC's SWMS.

(b) Providing and communicating guidance material relevant to lifting the AFS wall panels by crane, in particular the Pallet Hook Manufacturer Instruction Manual (dated October 2010) and the Pallet Lifter Safe Work Method Statement (dated August 2013), to All Cranes, before allowing loads to be lifted.

1. It was an agreed fact that neither the Instruction Manual nor the AFS SWMS were provided to AC.
2. This was a simple step that could have been taken at no cost to the defendant. I am satisfied that it was a step that would have had an impact on safety, by alerting AC to and/or reminding AC of the necessary control measures that were required to be taken when using the Pallet Hook to lift the panels. These were identified in these documents as setting up an exclusion zone, and that a qualified dogman was required to load the panels onto the Pallet Hook using the binding straps on the Pallet Hook. Both of these control measures were implemented on the site after the incident.
3. I am satisfied beyond reasonable doubt that providing the Instruction Manual and the AFS SWMS to AC was a reasonably practicable step that the defendant could have taken to ensure that the identified control measures were deployed.

(c) Prohibiting loads from being lifted unless there was a sufficient number of competent dogmen to undertake the task of moving AFS wall panels safely, being at least two: one to sling and direct the load, and one to receive the load.

(d) Prohibiting anyone from attaching a load (to be lifted by a crane) to the pallet hook unless they were competent and adequately trained to secure it safely, so as to prevent any part of the load from falling whilst being lifted.

1. These particulars can conveniently be dealt with together.
2. The particulars require the prohibition of any person undertaking the specified activities. This would include the defendant's workers, AC's workers and Arise's workers. In my view, this was achievable by the defendant not permitting AC to use the Pallet Hook, unless it was assured that the loads would be attached to the Pallet Hook by a qualified dogman and that the loads would be directed by a qualified dogman.
3. The Pallet Hook was provided to the defendant by AFS for its use in transporting the panels. Mr Hamburger signed for its delivery and I am satisfied that the defendant was the bailee of the Pallet Hook for its use at the site. I am satisfied that the defendant was the person on site that had management and control of the Pallet Hook and that it could have refused to provide it for the cranage work if the identified control measures were not being put in place by AC and/or Arise.
4. This was a simple, inexpensive and available step for the defendant to take that would have had the effect of prohibiting the cranage work to proceed unless a qualified dogman attached the load to the Pallet Hook and directed the load.
5. I am satisfied beyond reasonable doubt that prohibiting the lifting of the loads as specified in these particulars was a reasonably practicable step that the defendant should have taken.

(e) Prohibiting a load from being lifted by crane, unless it was attached to the pallet hook securely (to prevent any part of the load from falling) through the use of safety chains and/or binding straps.

(f) Providing adequate information, instruction and training to its workers, in particular Marc Dessens as to the scope of their role and prohibiting them from engaging in work for which they were not qualified to undertake, in particular the work of slinging loads to be lifted by crane.

(g) Providing adequate supervision to its workers, in particular Mr Dessens, to ensure so far as is reasonably practicable that they were not undertaking work which they were not qualified to undertake, in particular the work of slinging loads to be lifted by crane.

1. These particulars can be conveniently dealt with together.
2. Mr Dessens was engaged by the defendant to do labouring work involving cleaning and de-bracing walls. Mr Dessens had only worked at the site intermittently over a period of about 12 days. The defendant did not know if Mr Dessens had any relevant experience with mobile cranes. The defendant did not tell SafeWork during the course of the investigation that Mr Dessens was a dogman. The evidence from HLH demonstrates that he was not a qualified dogman.
3. The defendant knew that the cranage work was required and that it was going to take place on the morning of the incident. The defendant knew that the pleaded risk would be posed to workers in the vicinity of the crane, unless a qualified dogman was used to load the panels onto the Pallet Hook.
4. It was common ground that Mr Dessens loaded the Pallet Hook with the load that fell onto the workers. Mr Dessens' evidence was contradictory as to how many times he had loaded the Pallet Hook before the incident. He first said in the Record of Interview that he had loaded the Pallet Hook "many, many times before" and then later that he had done it just once before.
5. Mr Ramm's evidence was that Mr Dessens was loading the Pallet Hook on the day of the incident for the cranage work. Mr Ramm's evidence was that he was on site for three to four hours before the incident and that setting up the crane took about two hours to complete. It follows that the cranage work was being performed for about one to two hours before the incident. This coincides with Mr Ramm's estimate that he lifted about six to 10 loads before the incident occurred. Mr Ramm did not notice any one in the area supervising Mr Dessens.
6. The defendant's estimate was that 14 packs of panels had been moved before the incident occurred.
7. Taking into account all of the evidence, I am satisfied that Mr Dessens was loading the panels onto the Pallet Hook on the day of the incident for one to two hours before the incident occurred.
8. I am satisfied that a relatively inexperienced worker engaged by the defendant was able to perform a task for between one to two hours that he was not qualified to do and that posed an identified risk to workers in the vicinity of the crane.
9. I am satisfied that Mr Hamburger was on site on the morning of the incident and was responsible for supervising the defendant's workers.
10. The conduct of Mr Elarchi and Mr Dessens was conduct of the defendant and the knowledge of those workers was the knowledge of the defendant. Accordingly, the defendant knew that its workers were involved in the cranage work and it should have supervised Mr Dessens to prevent him from undertaking a task that he was not qualified to do.
11. Mr Dessens was left to his own devices for a relatively long period of time to undertake a specialist task that he had seen others do and thought that he was competent to perform. I am satisfied that he did so because he was not properly supervised on the morning of the incident.
12. The defendant suggested in its s 155 response that Mr Dessens may have been co-opted into the task by others, presumably the crane crew. Even if I accept that assertion as true, it also indicates that Mr Dessens was not adequately supervised to ensure that he was performing the role that he was qualified for.
13. Mr Dessens' evidence was that he was not trained on how to use the Pallet Hook and it follows that he was not prohibited from using it.
14. I am satisfied beyond reasonable doubt that it was a reasonably practicable step for the defendant to train Mr Dessens in his role at the site and to identify tasks that he was prohibited from undertaking.
15. I am satisfied beyond reasonable doubt that the defendant failed to supervise Mr Dessens to ensure that he was not required to perform a task that he was not qualified to do and that this was a reasonably practicable step that it could have taken.

(h) Implementing and enforcing its safe work method statement for the site, dated 1 October 2017.

1. Task 7 in the defendant's SWMS identified the pleaded risk that related to the use of the Pallet Hook and set out the necessary control measures to be implemented. The entry also included a reference to the Pallet Lifter SWMS that identified the same risk and specified the same control measures.
2. The defendant admitted after the incident that the provisions of the defendant's SWMS identified the risk and provided for the appropriate control measures. The defendant also, on the day of the incident, retrained its workers on the provisions of the defendant's SWMS in response to the incident.
3. I am satisfied that task 7 of the defendant's SWMS was directly applicable to the cranage work because it was the only task in the SWMS that referred to the use of the Pallet Hook.
4. I am satisfied that the defendant failed to implement or enforce the SWMS because the control measures identified in it were not taken. It cannot be argued that the control measures were not reasonably practicable because they were the steps that the defendant identified in the SWMS that it would take in response to the risk.
5. I am satisfied beyond reasonable doubt that the defendant failed to implement or enforce its SWMS and that was a reasonably practicable step that it could have taken.

Conclusion on Element 3

1. I am satisfied beyond reasonable doubt that the prosecutor has established Element 3.

Element 4 - Did the defendant's breach of duty expose Mr Graff and Mr Sitauti to a risk of death or serious injury?

1. The principles to be applied were not in dispute and are set out at [90] to [92] above.
2. In this case, each of the breaches of duty pleaded by the prosecutor and established beyond reasonable doubt, were a significant or substantial cause of the failure of the defendant to ensure that the identified control measures were taken to minimise the risk of loads falling from the crane and injuring persons in the vicinity of the crane. As a result, I am satisfied that Mr Graff and Mr Sitauti were put at risk from the cranage work.
3. First, the defendant failed to act to ensure that Arise put in place an exclusion zone, which would have removed the scaffolders from the area in which the danger existed.
4. Second, the defendant failed to provide AC with the Instruction Manual or the AFS SWMS to AC that would have alerted AC and/or served as a reminder to AC of the necessary control measures that were required to be implemented.
5. Third, the defendant failed to ensure, in accordance with the defendant's SWMS, that the loads were being attached to the Pallet Hook by a qualified dogman which would have minimised the risk of the load being inadequately attached to the Pallet Hook.
6. Fourth, the defendant failed to adequately train and supervise Mr Dessens to prevent him from undertaking a task that he was not qualified to perform.
7. Fifth, the defendant failed to implement and enforce its SWMS and as a result the identified control measures were not put in place.
8. I am satisfied beyond reasonable doubt that the prosecutor has established Element 4.

Conclusions and Orders

1. I am satisfied beyond reasonable doubt that the prosecutor has established the elements of the offence.
2. I find the defendant guilty.

Endnotes

1. None of the panels relevant to the determination of the case were large panels.
2. In context, this is a reference to Mr Daish.
3. In context, the person who engaged Recovery Partners was Mr Daish.
4. "Indictment" is defined in s 15 Criminal Procedure Act 1986 and the opening words of section 16(2) that refer to summary proceedings.
5. Clause 7 Work Health and Safety Regulation 2017 excludes some persons from the definition, but those persons are irrelevant for the purposes of this case. DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 18 December 2020