The method selected is generally determined by individual job factors including the nature of the work, the size of area to be roofed, availability of equipment and interaction with other trades. The need to minimise the risk of falls and the risk of injury when a fall occurs should also be taken into account when selecting protective measures.
The recommended method is safety mesh and guardrails. Other available methods include individual fall arrest systems, scaffolding, safety nets or a combination of these methods. These other methods should only be used if the recommended method cannot be used. The use of on-ground prefabrication also helps to reduce risks.
208 Reliance was placed on the above that requires provision to be made for fall protection 'if work is to be carried out within two metres of any edge on a new or existing roof from which any person could fall two metres or more'.
209 Based on the provision in the above WorkCover Code, it was submitted, there was no requirement for Mr Hill to be attached to the static line when he was more than three metres from the edge and inside the safety fence line.
210 I will deal with the WorkCover Code of Practice as identified above in the first instance. It is a Code of Practice relevant to safe working on roofs - not exactly the circumstances prevailing in relation to Mr Hill. Nevertheless, I accept the 'two metres' from any edge provision has some similarity to the situation in relation to the safety fence line in place. That is, it was 2.1 metres from the edge of the building. In my view however, that is where the similarities with Mr Hill's work process and the general provision in the Code of Practice referred to part company.
211 As 3.1 in the Code states, 'The method selected is generally determined by individual job factors including the nature of the work, ... availability of equipment and interaction with other trades. The need to minimise the risk of falls and the risk of injury when a fall occurs should also be taken into account when selecting protective measures.'
212 It seems to me, it is abundantly clear that what the above provision provides for is an approach to fall prevention that must take into account 'individual job factors including the nature of the work'. Further, that there was a recognised need to take appropriate protective measures to minimise the risk of fall and the risk of injury should a fall occur. The way that general provision is to be applied is not that beyond two metres there is no need for a lanyard to be attached to the static line but rather, in relation to fall prevention and in determining the risks to safety that exist when working from the height Mr Hill was, it is necessary to carefully consider all of the factors involved in the nature of the work and the risks to safety that the nature of the work gives rise to.
213 In the circumstances prevailing in this matter, there was first of all the need for Mr Hill to remove the safety fence. Once the safety fence was removed, the need for Mr Hill to remain connected by his lanyard to the static line was, in my view, an imperative. That would be the case regardless of whether he was outside the safety fence line or inside the safety fence line. I come to that conclusion when one has regard to the nature of the work Mr Hill was performing. That is, as part of continuum of activity, he was required in the first instance to locate himself outside the safety fence line and, when directed, to raise the crane on its wheels and to commence pulling backwards. At a certain point he went beyond the safety fence line. However, at the same time, as part of the nature of his work, he was continuing his activity of pulling the crane backwards on its wheels. The safety fence was not in place and, with the exception of a wooden chock at the edge of the building, there was nothing to preclude the crane from moving forward regardless of the circumstances that caused that. As Mr Hill said:
As you can imagine, the crane with a window on it is extremely heavy. So I am pulling this crane back with all of my force just to get it into position. I just remember, like, pulling it back the same as I had previously done then next thing I've realised, I have noticed the two rear legs on the crane start to come up and because I was still holding on to it so hard I was pulled toward the edge of the building and at that point I shut my eyes.
214 Once Mr Hill commenced the task of positioning the crane outside the safety fence line near the edge of the building and until such time as the panel was securely bracketed to the side of the building and his work was completed, there was a real and perceived need for him to remain attached by his lanyard to the static line. I come to that conclusion because, as the evidence has disclosed, Mr Hill was pulling backwards, back into the building, a very substantial weight - that of the crane together with the load of the panel. The crane was on its wheels and the stability and the capacity of the crane when it was on its wheels was less than it would have been when it was on its feet. Given the possibility, not remote or speculative in my view, that the crane could become unstable for whatever reason while Mr Hill was pulling backwards on it with the safety fence open, it demanded the highest fall protection measures possible. The combined weight of the crane and the panel, if the crane became unstable, would have had, on any reasonable consideration, an immediate and forward propulsion. If that was to occur in the course of the work being performed, then the risk of Mr Hill falling with the safety fence open and without proper fall protection was very real. I find it difficult to comprehend, when one has regard to the nature of the work being performed by Mr Hill, such a risk to safety, in all the circumstances, cannot be said to be a real risk.
215 That there may well be circumstances where a lanyard was required beyond the two metre safety fence limit is evident by the presence of longer, retractable lanyards on the site. In other words, it is clearly recognised within the industry that there may well be circumstances, given the nature of the work being performed, that a lanyard longer than two metres would be required by way of fall prevention measures.
216 I see no merit in the defendant's reliance on the WorkCover Code of Practice as identified given the circumstances of the work being undertaken by Mr Hill at the time he fell from level four of the building under development.
217 I turn now to the Safe Work Method Statements I have earlier referred to and specifically identified detailing the provisions then in place. There is no merit to be placed, in my view, on the defendant's contention that simply by pointing to the Safe Work Method Statements that makes no specific requirement for lanyards to be attached to the static line when working inside the safety fence somehow operates as a defence to these particularised failures. As reference to those sections of the relevant Safe Work Method Statements that are highlighted will attest, the Safe Work Method Statement is silent as to the fall prevention measures that should be in place when the safety fence is removed and the crane being operated in the way that it was.
218 On any view, the Safe Work Method Statements were clearly deficient having regard to the way in which the work was being performed by Mr Hill and the requirement for him to pull the crane in the way he did in the absence of any safety fence.
219 Mr Vullo gave evidence that following Mr Hill's accident, the system was introduced of employees utilising the longer retractable lanyard when the safety fence was open.
220 Turning now to the specific particularised fall protection failures as pleaded by the prosecutor.
221 In the first instance, I consider there is, yet again, a degree of duplicity involved in the way in which these failures are pleaded. Overall, the prosecutor alleges an unsafe system of work both with respect to fall protection equipment when working at heights (particularised failure (9)) and an unsafe system of work for working at heights in relation to appropriate fall protection measures when the safety fence was open or when Mr Hill was moving the crane close to the edge of the building (particularised failure (10)). Further, in relation to particularised failure (11), the prosecutor pleads inadequate supervision in relation to fall protection equipment in the same terms as particularised failures (9) and (10) when taken together. That is, when he was working at heights or when the safety fence was open or when he was moving the crane close to the edge of the building. Again, it seems to me, it is a question of the defendant's overall system of work in relation to the procedure Mr Hill was undertaking that is the critical component of the prosecutor's allegation with respect to inadequate fall protection measures.
222 In relation to particularised failure (9), I have some difficulty in being satisfied the prosecutor has established that failure to the requisite standard. I come to that view because that particular failure specifies a failure on the part of Sassall or Skyrise to maintain a system of work to ensure Mr Hill had appropriate fall protection equipment (such as a retractable lanyard) when he was working at heights. On one view of the evidence, it could be said that both Sassall and Skyrise had an overall system of work that did have appropriate fall protection equipment, including retractable lanyards, available for Mr Hill to use when he was working at heights. The real issue simply is not that Skyrise did not have retractable lanyards available but that, in relation to the nature of the work being performed by Mr Hill, the circumstances in which the safety fence was open and the continuum of activity undertaken by him in pulling the crane back in the manner that he did while it was on its wheels, called, in my view, for a more proactive approach to fall protection measures, including the utilisation of a retractable lanyard. That issue is more definitively pleaded in particularised failure (10).
223 In all the circumstances, given the rather open-ended way in which the prosecutor has pleaded particularised failure (9), I am not satisfied that they have established that failure to the requisite standard and, accordingly, it is dismissed.
224 I turn now to particularised failure (10). This failure asserts a failure by the defendant to ensure that Sassall or Skyrise provide or maintain a safe system of work in relation to fall protection in that they failed to ensure Mr Hill was using appropriate fall protection equipment such as a retractable lanyard when the safety fence was open or when he was moving the crane close to the edge of the building.
225 I am satisfied, on the evidence, that that failure as pleaded is established to the requisite standard and I am satisfied the causal nexus to the risk to safety exists. I have already commented on the inadequacy of the Safe Work Method Statement and the prevailing belief on the part of both Mr Vullo of Skyrise and to a lesser extent Mr Murphy of Sassall as well as the defendant that once Mr Hill moved past the safety fence line in the act of pulling the crane backwards on its wheels, that there was no longer any need for him to remain attached to the static line by his lanyard because he was more that two metres from the edge of the building. For the reasons I have already elaborated upon above, I believe such a belief was significantly misguided and failed to properly consider the circumstances in which Mr Hill was performing the work he was undertaking at the time. I have already determined that no reliance can be placed by the defendant on the WorkCover Code of Practice earlier referred to. Further, the Safe Work Method Statements relied upon were clearly inadequate for the task at hand in properly considering all the potential risks to safety to which Mr Hill was subjected in undertaking the work he did in pulling the crane back in the circumstances prevailing.
226 Accordingly, I find particularised failure (10) established as against the defendant.
227 In relation to particularised failure (11), the prosecutor alleges a failure on the defendant's part to adequately supervise Mr Hill. Further, that inadequate supervision is extended to Skyrise and Sassall insofar as the defendant's failure to ensure that Skyrise or Sassall also properly supervised Mr Hill in three distinct areas. Firstly, inadequate supervision in relation to appropriate fall protection equipment (such as a retractable lanyard) when he was working at heights. Secondly, a failure to supervise Mr Hill in relation to the use of appropriate fall protection measures when the safety fence was open. Finally, a failure to supervise Mr Hill in relation to appropriate fall protection equipment when he was moving the crane close to the edge of the building. I have to say this pleading in the alternative in relation to a particularised failure is something that should be discouraged.
228 In part it could be said the prosecutor has already pleaded this issue when dealing with the overall system of work identified in particularised failure (10) and in the overall system of work identified and pleaded in particularised failure (9) that I have already dealt with.
229 That Mr Hill was supervised in undertaking the work that he did is, in my view, established. That is, Mr Vullo did visit the fourth floor the building from time to time to observe Mr Hill at work. Mr McGregor on behalf of the defendant did observe Mr Hill undertaking his task of positioning and pulling the crane back. Indeed, Mr McGregor observed the accident involving Mr Hill as he was standing on an adjacent building nearby when it occurred. On behalf of Sassall, there does not appear to have been any active steps taken to directly supervise Mr Hill in relation to his work. That was left to Mr Vullo on behalf of Skyrise, bearing in mind that it was at all times believed that the employees of Skyrise in installing the curtain wall panels, including the actions of Mr Hill, were not only in accord with the longstanding practice that had been developed but were in accordance with the Safe Work Method Statements in place that had been approved by Australand as well as by Sassall.
230 Again, one returns to the crux of the defendant's position in this matter which is that the need for a lanyard was not required once Mr Hill moved beyond the safety fence line towards the centre of the building while he was pulling the crane because of the requirements in the Safe Work Method Statements, because of the Code of Practice referred to, and because, in the defendant's submission, the possibility of Mr Hill falling from the building, if he had fallen over when he was more than two metres from the edge, did not constitute a real risk to safety. As such, the use of a lanyard was not, in all the circumstances, required.
231 Another difficulty with the way in which this failure has been pleaded is that the third arm of the failure allegation is that Mr Hill was inadequately supervised in relation to appropriate fall protection equipment when he was moving the crane close to the edge of the building. The evidence clearly is that at that time, Mr Hill did have his lanyard attached to the static line and, on that basis, it could be said that he was being properly supervised having regard to fall protection measures when he was doing that particular component in the overall task involved of positioning the crane in the first instance and then pulling back. That, however, is only part of the work being undertaken by Mr Hill at the time of his accident.
232 For the reasons already given, I am satisfied that the defendant's failure to adequately supervise Mr Hill in the work he was undertaking and its failure to ensure he was adequately supervised by Skyrise or Sassall comes down to the system of work that was in place in relation to the activity Mr Hill was undertaking. That is, it was known that he did unclip his lanyard from the static line at a certain point in the pulling back of the crane for the reasons detailed. Neither Mr McGregor on behalf of Australand nor Mr Vullo on behalf of Skyrise believed such a procedure was in any way inadequate. It conformed with their view that Mr Hill was, at that point, more than two metres from the edge of the building and that detaching himself from the static line did not constitute a risk to safety.
233 To the extent that Sassall had subcontracted Skyrise to undertake the work and had also viewed the Safe Work Method Statements involving the procedure to be undertaken by Skyrise employees, there was, on their part, a failure to recognise that within the system of work, which included the supervision of Mr Hill, that he was undertaking the task he was charged to do in a manner that was, in my opinion, inherently unsafe. That is, he was not using appropriate fall protection equipment when the safety fence was open having regard to the height at which he was working and the circumstances and nature of the work he was performing.
234 Retractable lanyards were available to be utilised but for the reasons already elaborated upon at length, they were not considered necessary as fall protection equipment in the circumstances in which Mr Hill was working.
235 I believe, given the nature and circumstances in which Mr Hill was working, including that the safety fence was open and he was involved in the procedure that he was and in the circumstances that he was, that a retractable lanyard was appropriate to be used as a proper and safe fall protection measure.
236 I am satisfied particularised failure (11) is established including the causal nexus between it and the risk to safety.