WorkCover Authority of NSW (Inspector Keenan) v Leighton Contractors Pty Ltd and Lindores Crane & Rigging

Industrial Relations Commission (NSW)|1998-03-05|Before: Schmidt J, Fisher P, Schmidt JJ, Mr J

Industrial Relations Commission of New South Wales in Court Session

CITATION : WorkCover Authority of NSW (Inspector Keenan) v Leighton Contractors Pty Ltd and Lindores Crane & Rigging (Aust) Pty Ltd [2004] NSWIRComm 277 PROSECUTOR: WorkCover Authority of New South Wales

PARTIES : DEFENDANT: Leighton Contractors Pty Limited

PROSECUTOR: Mr J V Agius SC SOLICITORS: WorkCover Authority of New South Wales

FIRST DEFENDANT: Mr SJ Rushton SC with Mr MA Jones of counsel LEGAL REPRESENTATIVES: SOLICITORS: Corrs Chambers Westgarth

SECOND DEFENDANT: Mr RA Perry of counsel with Mr BK Cross of counsel SOLICITORS: McCullough Robertson

INDUSTRIAL RELATIONS COMMISSION OF NEW SOUTH WALES IN COURT SESSION CORAM: Schmidt J

DATE: 22 September 2004 MATTER NUMBER IRC 232 OF 2000 WORKCOVER AUTHORITY OF NSW (INSP KEENAN) v LEIGHTON CONTRACTORS PTY LIMITED Prosecution under s15(1) & 49(4) of the Occupational Health and Safety Act 1983

MATTER NUMBER IRC 233 OF 2000 WORKCOVER AUTHORITY OF NSW (INSP KEENAN) v LEIGHTON CONTRACTORS PTY LIMITED Prosecution under s15(1) & 49(4) of the Occupational Health and Safety Act 1983

MATTER NUMBER IRC 234 OF 2000 WORKCOVER AUTHORITY OF NSW (INSP KEENAN) v LEIGHTON CONTRACTORS PTY LIMITED Prosecution under s16(1) & 49(4) of the Occupational Health and Safety Act 1983

MATTER NUMBER IRC 235 OF 2000 WORKCOVER AUTHORITY OF NSW (INSP KEENAN) v LEIGHTON CONTRACTORS PTY LIMITED Prosecution under s15(1) & 49(4) of the Occupational Health and Safety Act 1983

MATTER NUMBER IRC 236 OF 2000 WORKCOVER AUTHORITY OF NSW (INSP KEENAN) v LEIGHTON CONTRACTORS PTY LIMITED Prosecution under s16(1) & 49(4) of the Occupational Health and Safety Act 1983

MATTER NUMBER IRC 239 OF 2000 WORKCOVER AUTHORITY OF NSW (INSP KEENAN) v LINDORES CRANE AND RIGGING (AUST) PTY LIMITED Prosecution under s15(1) & 49(4) of the Occupational Health and Safety Act 1983

MATTER NUMBER IRC 240 OF 2000 WORKCOVER AUTHORITY OF NSW (INSP KEENAN) v LINDORES CRANE AND RIGGING (AUST) PTY LIMITED Prosecution under s15(1) & 49(4) of the Occupational Health and Safety Act 1983

WORKCOVER AUTHORITY OF NSW (INSP KEENAN) v LINDORES CRANE AND RIGGING (AUST) PTY LIMITED Prosecution under s15(1) & 49(4) of the Occupational Health and Safety Act 1983

MATTER NUMBER IRC 242 OF 2000 WORKCOVER AUTHORITY OF NSW (INSP KEENAN) v LINDORES CRANE AND RIGGING (AUST) PTY LIMITED Prosecution under s15(1) & 49(4) of the Occupational Health and Safety Act 1983

WORKCOVER AUTHORITY OF NSW (INSP KEENAN) v LINDORES CRANE AND RIGGING (AUST) PTY LIMITED Prosecution under s15(1) & 49(4) of the Occupational Health and Safety Act 1983

WORKCOVER AUTHORITY OF NSW (INSP KEENAN) v LINDORES CRANE AND RIGGING (AUST) PTY LIMITED Prosecution under s16(1) & 49(4) of the Occupational Health and Safety Act 1983

MATTER NUMBER IRC 245 OF 2000 WORKCOVER AUTHORITY OF NSW (INSP KEENAN) v LINDORES CRANE AND RIGGING (AUST) PTY LIMITED Prosecution under s15(1) & 49(4) of the Occupational Health and Safety Act 1983

WORKCOVER AUTHORITY OF NSW (INSP KEENAN) v LINDORES CRANE AND RIGGING (AUST) PTY LIMITED Prosecution under s15(1) & 49(4) of the Occupational Health and Safety Act 1983

MATTER NUMBER IRC 248 OF 2000 WORKCOVER AUTHORITY OF NSW (INSP KEENAN) v LINDORES CRANE AND RIGGING (AUST) PTY LIMITED Prosecution under s15(1) & 49(4) of the Occupational Health and Safety Act 1983 JUDGMENT

1 In a judgment given on 27 February 2004, Peterson J convicted the defendants of certain charges brought against them under the Occupational Health and Safety Act 1983 ('the Act') and found other charges laid not proven: (WorkCover Authority of NSW (Inspector Keenan) v Leighton Contractors Pty Ltd and Lindores Crane & Rigging (Aust) Pty Ltd [2004] NSWIRComm 31). The prosecutions arose out of the collapse of a tower crane used in the construction of the Twin Towers resort at Tweed Heads, on 29 November 1996 and the events of the preceding day. That day, a kibble containing wet concrete, which was being lifted by the crane, bounced and came into contact with a scaffold upon which a number of workers were located. This caused a number of workers to jump from the scaffold. No injuries resulted on that occasion, but the collapse of the crane on the following day caused the instant death of Wayne Master; fatal injuries to Rodney Taula and injuries to Timothy A.L. Perrett.

2 This judgment deals with the question of penalty and costs, Peterson J having acquitted the defendants of most of the charges laid against them. There was no issue between the parties that the Court, as presently constituted, should deal with those questions and the factual findings upon which they must rest. (See R v Cheung (2001-02) 209 CLR 1 and R v Isaacs (1997) 41 NSWLR 374.)

3 At [3] - [4] of the February judgment, Peterson J commented on a problem which had arisen as the result of the approach adopted by the prosecution to the laying of charges in these proceedings . His Honour said: 3 There are a multiplicity of charges against both Leightons and Lindores with both charges and particulars which overlap to a considerable extent. The charges are brought under the sections creating offences, namely ss 15 and 16, but each charge is brought relying upon the provisions of s 49A of the OHS Act. Rather than set them out in extenso, I will set out a tabulation of the charges against each defendant, and deal with the particulars in respect of each charge in the consideration of the matters. The table illustrates what, to my mind, is an incorrect approach to the formulation of charges in OHS prosecutions. Section 49A, as I apprehend it, was designed to avoid the risk in litigation that a charge alleging more than one offence might be void for duplicity. The practical consequence seems to have been that prosecutors have determined not only to bring multiple charges in one matter, but multiple matters. The list of charges in relation to Lindores is a very good example, matters IRC00/244 and 246 in particular illustrating the problem. In my view, the structure of charges in IRC00/244 ought reflect an allegation of failure to ensure safety with a variety of features more in the nature of particulars of that failure, rather than separate failures embodied in the "charge" when in truth it or they are particulars of the principal charge or charges. The approach which the prosecutor has adopted here requires one to consider whether each allegation of failure, separated from the particulars of charge, are to be considered as charges and not as particulars of charge

4 This is exactly the problem which arose in the judgment of Kavanagh J in WorkCover Authority of NSW (Insp. Maltby) & Anor v Abigroup Contractors Pty. Limited & Luis Bustamante [2003] NSWIRComm 35. At par. 12 her Honour took the view the failures were technically particulars, although not so identified; they were considered to be confusing in form and repetitive in content. I would adopt those views in relation to the present matters. This style of summons can only make for near impossibility of understanding during the trial, very considerable difficulty for the parties in addressing the matters in the course of the trial, and an unnecessarily heavy burden in trying to deal with each element of charge in the course of judgment. In my view this approach, if it is continuing, ought be reviewed.

LEIGHTONS IRC00/232 15 (1) - 29 November 1996 - Fail to provide to Taula and Woolaston a safe system of work for the pouring of concrete to form columns C404, C201 & C213 by means of kibble IRC00/233 15(1) - 29 November 1996 - Fail to provide adequate instruction and information for the pouring of concrete to form columns C404, C201 & C213 by means of kibble 16(1) - 29 November 1996 - Fail to ensure Master, Lowther and Perrett provided with IRC00/234 (a) Supervision (b) Safe system (c) Instruction and information IRC00/235 15(1) - 29 November 1996 - Fail to provide adequate supervision for the pouring of concrete to form columns C404, C201 & C213 by means of kibble 16(1) - 28 November 1996 - Fail to ensure Master, Lowther, Perrett, Gee and McLaren not exposed to risks, particularly in not providing: IRC00/236 (a) Supervision (b) Safe system (c) Instruction and information LINDORES 15(1) - 29 November 1996 IRC00/239 -Fail to ensure safety of Lowther and Perrett in that: failed to ensure they were adequately supervised 15(1) - 29 November 1996 IRC00/240 -Fail to ensure safety of Lowther and Perrett in that: failed to provide them with adequate training and instruction 15(1) - 28 November 1996 -Fail to ensure safety Lowther and Perrett in that: IRC00/241 failed to ensure plant safe and free from risk In particular, failed to ensure crane adequately erected and commissioned 15(1) - 28 November 1996 IRC00/242 -Fail to ensure safety of Lowther and Perrett in that: failed to make enquiries re increasing length of boom 15(1) - 29 November 1996 IRC00/243 -Fail to ensure safety of Lowther and Perrett in that: failed to ensure crane adequately erected and commissioned

16(1) - 29 November 1996 -Fail to ensure safety of Perrett, Taula and Master in that: failed to make enquiries prior to increasing length of boom IRC00/244 failed to provide adequate supervision failed to provide adequate training and instruction failed to provide a work method statement failed to ensure crane adequately erected and commissioned 15(1) - 29 November 1996 IRC00/245 -Fail to ensure safety of Lowther and Perrett in that: failed to make enquiries prior to lengthening boom 16(1) - 28 November 1996 -Fail to ensure safety of McLaren, Gee & Master in that: failed to make enquiries before increasing boom length IRC00/246 failed to provide adequate supervision failed to provide adequate training and instruction failed to provide a work method statement failed to ensure crane adequately erected and commissioned 15(1) - 28 November 1996 IRC00/248 -Fail to ensure safety of Lowther and Perrett in that: failed to provide adequate supervision

5 It is relevant to the questions which now arise for determination, to immediately note that the prosecution failed to make out most of the charges brought against the two defendants.

6 Only one charge brought under s16 of the Act was made out against Leightons, in relation to the events of 28 November and the system of work then in place.

7 While four of the prosecutions brought against Lindores were successful, under both s15 and s16, in relation to both 28 and 29 November, it must also be noted that it was only one aspect of each of those charges - that Lindores had failed to ensure that the crane was adequately erected and commissioned - which was made out in each case. This aspect related to the graduation of the loading gauge on the crane. This feature of the gauge, his Honour found, in combination with the radius indicator 'was crucial to the safe operation of the crane' (at [106]). This conclusion resulted in each of the charges being made out as to this aspect, because Peterson J concluded that there was 'an inability of the load gauge to give a true indication of weight under 2 tonnes at high speed or 4 tonnes at low speed.' (at [106]).

8 It was, nevertheless, common ground between the parties that there was no evidence that either on 28 November, when the kibble struck the scaffold, or on or 29 November, when the crane collapsed, that the load being carried by the crane was under 2 tonnes, the crane being operated at high speed, or under 4 tonnes, the crane being operated at high speed. This is relevant to the penalty to be imposed in relation to these charges.

9 At [70] Peterson J concluded that the charges relating to failures with respect to supervision in relation to both defendants had not been made out. This had been raised in IRC2000/234, 235 and 236 as to Leighton's and IRC2000/239, 244, 246 and 248 as to Lindores. This conclusion led to the dismissal of the prosecutions in IRC2000/235 and 239, which were confined to the question of supervision.

10 In IRC2000/240 and 244, allegations that Lindores had failed to provide adequate training and instruction to Messrs Lowther and Perrett were made. At [80] Peterson J found that no such relevant failure had been established in relation to these prosecutions.

11 In IRC2000/234, it was alleged that Leightons had failed to ensure that Messrs Master, Lowther and Perrett received such instruction and information as was necessary for them to carry out the work safely. At [83] Peterson J concluded that this element of the charge was not made out.

12 In IRC2000/233, it was alleged that Leighton's had failed to provide adequate instruction and information to its employees, Messrs Taula and Woolaston, for the pouring of concrete to columns by means of kibble. At [85] Peterson J concluded that this element of the charge was not made out.

13 In IRC2000/232, 234 and 236, it was alleged that Leightons had failed to provide a safe system of work for the pouring of concrete, on 28 and 29 November. In IRC2000/232, Peterson J found at [88] that there was no substance to the allegation that no work method statement was provided to Messrs Taula and Masters.

14 At [95] Peterson J concluded as to IRC2000/236, that an obvious degree of risk was experienced by workers on the Leighton's site as the direct result of the adoption of a system of work that created a risk attributable to Leighton's. This led to the conviction which here arises for consideration, the case of Leightons.

15 At [96] his Honour rejected this conclusion in relation to IRC2000/232 and 234, in relation to 29 November. His Honour concluded that on that day, there was no apparent defect in the system of work 'save the possibility that a crane driver could overload his crane by an aberrant act.' Even this could not have arisen if unknown design defects had not contributed to the risk in question.

16 In IRC2000/244 and 246, it was alleged that Lindores had failed to provide work method statements on 28 and 29 November. Peterson J found this particular of no substance.

17 This was the only offence made out in the case of Leightons. It was common ground that the maximum penalty for the offence is $750,000.

18 It was the prosecutor's case that the offence was a serious one, given the particulars which included a failure to provide supervision, a safe system of work and instruction and information. The gravity of the offence was evidenced by the measures in place to safeguard the employees from the relevant risks, both before and after the accident occurred. The evidence showed that there were no measures to safeguard those on the scaffold at the time the kibble was being lowered for a concrete pour. After the accident, Mr Master went off to complain about what had occurred, but Mr Kurmon did not report the matter to Leighton's foreman and it did nothing to deal with what had arisen. The same system was used as a result, the following day.

19 It was submitted that the following factual findings were open, about which there was general agreement: 'Lindores Crane & Rigging (Aust) Pty Ltd ("Lindores") had provided (erected and commissioned) a tower crane for use by Leightons on its building site at Tweed Heads. Lindores also provided a driver, a dogman/relief driver and other dogmen to operate the crane.

Lindores erected and commissioned a Favco STD 1000 tower crane, serial number 633 ("Crane"). Lindores extended the length of the boom of the crane so that it had a working radius of 62m.

Leightons provided two kibbles (which act like buckets to carry and pour concrete) on site. One kibble, referred to as the "large kibble", had the capacity to hold 1.5 cubic metres of concrete. The other kibble, referred to as the "small kibble", had the capacity to hold 1 cubic metre of concrete.

At the relevant times on 28 November 1996, in addition to others, the following persons were working on the Site: (a) John (also known as Jason) Lowther, an employee of Lindores, working as the driver of the Crane; (b) Timothy Perrett, an employee of Lindores, working as the dogman at the point were the kibble was filled with concrete; (d) Larry Gee, an employee of Lindores, working as the dogman at the point were concrete columns were being poured; (d) Wayne Master, an employee of Shepherds Contracting Pty Ltd, working as a leading hand concreter. (e) Glenn McLaren, an employee of Shepherds Contracting Pty Ltd, working as a concreter. (f) Stephen Burgess, a formwork carpenter who along with Kassebaum had just completed the formwork of the column the subject of the concrete pour giving rise to the incident. (g) Bruce Kassebaum, another formwork carpenter. (h) Mark Wollaston, the foreman employed by the defendant.

The centres of columns C101 and C102 were at a distance of approximately 61 metres and 58 metres, respectively, from the centre of the Crane.

At approximately 4.45pm the large kibble was filled with concrete and used to pour column C102.

The large kibble which weighed approximately .620 tonne had been loaded with 1.4 cubic metres of concrete weighing 3.36 tonnes, bring the total weight to approximately 4 tonnes before column C102 was poured.

The Crane was then directed to move to a position so that column C101 could be poured.

The kibble was lowered so that column C101 could be poured. At this time the kibble and its content of concrete weighed a least 2.96 tonnes and perhaps as much as 3.2 tonnes, but in any event well in excess of the safe working load of 1.5 tonnes at the relevant distance from the base of the tower crane.

Mr Gee instructed Lowther to stop the kibble's descent. When the kibble stopped it bounced and then oscillated (moved up and down) hanging as it was on the cable that ran up through the boom of the crane to the drum upon which it was wound. The distance that the kibble oscillated was a matter of dispute and a number of witnesses gave evidence as to what happened at this point in time. Those witnesses were Gee, McLaren, Burgess and Kassebaum. The range of movement on the evidence was 4 inches to 18 inches.

The evidence of Burgess was to the effect that all cranes experience the phenomenon of spring in the jib.

As the kibble oscillated it attached to the scaffold on which Messrs Gee, Masters and McLaren were standing, causing the scaffold to move sharply and be lifted at one end.

Masters jumped off the scaffold to the ground, McLaren climbed onto the formwork for the column being poured, and Mr Gee ducked away from the kibble.

At the time of the incident the Crane was, as Leightons had been informed by Lindores, through Mr Gillespie, fitted with a functioning Markload limiter, the effect of which would be to cause the crane to stop if it were overloaded. Unknown to Leightons, the Markload Limiter had been inactivated in the crane cabin. The crane also had a load gauge and radius indicator facility in the cabin which reflected the recommended maximum weights on the hook of the crane at various radii.

20 The defendant's case was, nevertheless, that the offence found proven was not in the terms submitted by the prosecutor, and what was proven fell at the lower, if not the lowest end of the scale. It was noted that while the charge went to failures of supervision, the system of work and instruction and information, only the system aspect of the charge was made out.

21 This latter submission was undoubtedly correct, given Peterson J's conclusions, as outlined above. It follows that the imposition of penalty must be approached in that context.

22 At [89] to [95] Peterson J concluded: 89 It remains in this context to consider the circumstances where a kibble near flatstick may bounce, with or without an effect from downward bias in the luff pump or the pressure setting, in a manner which endangers workers who are working on a scaffold as here it obviously did on 28 November 1996. To accept that this is normal behaviour or experience, would be to accept that the system provided for loading columns with concrete could endanger workers in this way.

90 There was some conflict in the evidence about whether, on 28 November 1996, the kibble dropped a substantial amount, estimated by Mr McLaren as about 6 ft, or a matter of inches, estimated by Mr Burgess at 4-8 inches, and Mr Kassebaum at 12-18 inches. The latter two asserted that the kibble did not "drop" but rather "bounced" reflecting flexibility in the jib rather than any other effect. I prefer the evidence of Messrs Kassebaum and Burgess in this respect. While there was also some conflict concerning the effect on the scaffold and what the individuals did after the connection of the kibble with the scaffold, I prefer Messrs Kassebaum and Burgess to the evidence of Mr Gee as to the effect upon the individuals. Whether it arose from the drop of the boom or the lifting of the scaffold, there was a clear exposure to danger of the three persons working on the scaffold.

91 On 28 November 1996 Mr Burgess, having heard the kibble strike the scaffold, turned towards it and saw Mr Master jump off the scaffold. He described Mr Master as jumping off the scaffold and saying: The column should be pumped, not by crane. It is too far for the crane to reach.

92 Mr Burgess said the person working with Mr Master (now identified as Mr McLaren) climbed onto the column. Mr McLaren said that Mr Gee ducked away from the kibble. Mr Gee said to McLaren, "You should have hung onto the kibble. The kibble won't fall." This suggestion, with its Chaplinesque overtone, typifies what I consider to have been a strong tendency in Mr Gee to underplay the significance of these events and the risk involved.

93 Mr McLaren testified that he was concerned about the crane working at flatstick and that he and Mr Master had discussed utilising either a concrete pump or mobile crane, both of which they had used on earlier occasions. Mr Master went away to apparently seek one or the other of those and returned to inform Mr McLaren that they were going to deal with a small kibble. That equipment was not available. They also discussed utilising the large kibble with half loads, but Mr McLaren was unaware of what Mr Master did about that.

94 He described the large kibble and his feelings about it this way: A kibble at the end of the crane loaded up with concrete had a certain amount of movement. It was a natural movement that you expect. You expect it to sway and move around. This kibble at that distance out moved more than you would expect and it did not feel safe.

95 I find myself unable to see how it could be said that this state of affairs was not the responsibility of Leightons. That an obvious degree of risk was experienced by workers on Leightons' site as the direct result of the adoption of a system of work that created that risk was a matter which must be attributable to Leightons. I find the offence proven as to system of work in IRC00/236.

23 It was the defendant's submission that while it accepted that any breach of the Act was serious, it was the relative seriousness of the particular offence which had to be assessed, when penalty was determined. In that context, the submission that this offence fell at the lowest end of the scale, must be considered and rejected. Even accepting the obligation to give Leightons the benefit of any reasonable doubt as to the movement of the kibble, so that it must be concluded on Mr Burgess' evidence, that the kibble bounced in the range of 4 - 8 inches, rather than the range of 4 to 18 inches, estimated by Mr Kassabaum, what cannot be overlooked is the consequences which flowed from the bounce, given the system of work place.

24 The evidence showed that the kibble became attached to the safety handrail of the scaffolding, causing it to move sharply and to be lifted at one end. There were three workers on the scaffold at the time, one of whom thereupon leapt from the scaffold to the ground, a distance of some 3 metres; one who climbed onto the formwork of the column and one who ducked away from the kibble.

25 While there were neither injuries suffered by the employees, or damage to property, as a result of this incident, it is the risk to safety in question which arises for consideration, not the circumstances of the particular incident which brought the risk to light.

26 There can be no doubt that the risk in question was serious. Leaping to the ground from a distance of three metres, climbing onto formwork, at such a distance off the ground, or being struck by a kibble such as this, are plainly likely to lead to the possibility of serious injury, or indeed worse consequences. That there was no injury here, was clearly the result of good fortune, not good management.

28 I also accept the prosecutor's submission that the fact that the crane driver might have had a role to play in the incident, did not relieve the defendant of its obligations to its employees, or diminish them. The evidence showed that the workers considered alterations to the system of work in place, given what appeared to them to be unsafe and how such work had been performed by alternative means, on other occasions. Plainly the system ought not to have permitted the bouncing kibble to come into contact with the scaffold where employees were working. It was the defendant's obligation to ensure this. There was no case advanced that there was any difficulty in this being ensured by the defendant. It must be concluded that the risk was readily foreseeable and avoidable, by the use of available alternative methods of work.

29 The need for general deterrence to form an element of the penalty was accepted. Given the industry in question and the events which here occurred, I am satisfied that general deterrence has a proper role to play in the determination of penalty.

30 Leightons argued that given its record and its approach to safety matters, there was no need for specific deterrence to play a role in that penalty. I cannot accept that submission.

31 The finding that there was no safe system of work here in operation, was reached in a context where not only did the kibble bounce, so as to strike the scaffold where the three workers reacted as I have outlined, but where the evidence showed that there was no effective reporting of the problem which had manifested to Leightons, which consequently did nothing to deal with the deficiency in the system of work which had been revealed, because it never came to its attention. It cannot be overlooked that the obvious risk in the system was not thereupon attended to. In that context, the submission that this offence fell at the lowest end of the scale, underlined that there was still no proper appreciation of the gravity of the offence here in question.

32 Given these circumstances, I am satisfied that specific deterrence must play a role in the penalty imposed. The defendant's record, in the construction industry, an industry which I accept as being an inherently dangerous one, is also relevant. I accept that the record is a relatively good one, given the evidence of the size and nature of the defendant's operations in the construction industry. Evidence was called from Damian Victor O'Carrigan, the Administration Manager of the Queensland Branch of the defendant, as to its business and operations; the Twin Towers project at which the events here in question occurred; the safety regime in operation there and elsewhere in its operations prior to the incident and the steps taken subsequently. This undoubtedly helped explain that record.

33 That evidence showed that this was by no means an employer who ignored its obligations under the Act at the time of the accident, or afterwards. To the contrary, there was plainly serious attention given to those obligations. Nevertheless, the circumstances of this accident highlighted the deficiencies in the approach adopted on 28 November, before and after the kibble struck the scaffold. I accept that since then, the defendant has given further and even more detailed attention to its safety obligations. This must be taken into account, but cannot remove the need to reflect in the penalty imposed what the evidence as to the events of 28 November revealed, by way of specific deterrence.

34 I also accept that the evidence as to the events of 29 November are not, in reality, relevant to the charge made out, as the defendant argued.

35 In this respect it is also relevant to note that the defendant was convicted of this offence, in circumstances where it had engaged a speciality crane company, Lindores, to supply, erect and commission the tower crane and to provide a driver, a dogman/relief driver and other dogmen, to operate the crane. It is undoubtedly in this context that the prosecutor submitted that the gravamen of the offences as between the two defendants was not the same and that a heavier burden rested upon Lindores.

36 There was a plea of not guilty in this case, so no question of any discount arises for consideration on sentencing. Mr O'Carrigan expressed the defendant's sincere regret for the incident and explained what it had done in relation to its safety obligations, to ensure that risks to safety on its sites are eliminated. Mr O'Carrigan was not required for cross examination. This expression of contrition must be accepted, although I do accept the prosecution's submission that contrition was not here evidenced by a plea of guilty being entered.

37 As I have already noted, the defendant, even at the time of the offence, had well developed safety systems. It has won awards for its approach to safety in this industry. It implemented a number of additional strategies after 28 November and its safety performance and record since then have improved, with a significant reduction in lost time injuries, medically and first aid treated injuries and in the severity of injuries suffered. It has only three convictions in New South Wales and one in Victoria.

38 That the defendant resisted the many offences with which it was charged, is not a reason for refusing to accept the expression of contrition offered. It is relevant in this respect that the defendant was acquitted of all but one aspect of one of the five charges laid. There was also evidence that it sought to negotiate a basis upon which a plea of guilty to that charge would be entered. Those negotiations failed.

39 I accept that these matters have some relevance to the penalty to be imposed, although the primary consideration remains the nature and seriousness of the offence in question.

40 Having considered all of the matters I have mentioned, I have concluded that the appropriate penalty in this case is $130,000.

41 It is well settled that there is a discretion to award costs. The usual approach is that costs should follow the event, although the discretion need not be exercised on that basis. See the observations of Mason CJ in Latoudis v Casey (1990) 170 CLR 534 at 543: I am not persuaded that there is a complete analogy between the discretion to award costs in summary proceedings and the power to award costs in civil proceedings. For that reason I would not be prepared to accept that in summary proceedings there should be a general rule that costs follow the event. As I have noted, the making of separate provision in s.97(a) and (b) is not without significance. The differences between criminal and civil proceedings are substantial, not least of them being the absence of pleadings, the different onus of proof, the defendant's inability in criminal proceedings to enter into a compromise and the possibility that the charge, if proved, may affect the defendant's livelihood and reputation. These differences may possibly provide grounds in the circumstances of particular cases for refusing to order costs in favour of a successful informant which would have no application in civil proceedings.

42 It was the prosecutor's case that it should have an order for its costs of the successful prosecution and ought not to be ordered to pay costs in relation to the unsuccessful prosecutions.

43 All charges were heard together. It was the prosecutors' primary submission that nearly all of the evidence which it called would have had to be called, if the only charges laid were those upon which it was successful. The prosecutions related to the events of two consecutive days, each of which had at its core the operation of a tower crane, which collapsed on the second day, when similar work in relation to a concrete pour was being undertaken. 'The safe operation of the crane, the actions of employees of one or other of the defendants and the actions of others intimately involved in the work which centred around the crane were central to the allegations made by the prosecutor'. The s53 defences which might have been advanced by the defendant also needed to be dealt with in the evidence.

44 It was also submitted that while the prosecutor accepted Peterson J's criticisms at the way in which the multiplicity of charges had here been advanced against the defendants, that ought not to be reflected in any costs order.

45 Reliance was also placed upon the approach of Walton J in O'Sullivan v Crown in Right of State of New South Wales (Dept of Education and Training) (2003) 128 IR 158 at 202, applying Dodd's Family Investments Pty Ltd and Anor v Lane Industries Pty Ltd & Ors (1992-93) IPR 261 at 272. There it was observed that: 'Where there is a mixed outcome in proceedings, the question of apportionment is very much a matter of discretion for the trial judge. Mathematical precision is illusory and the exercise of the discretion will often depend upon matters of impression and evaluation.'

46 It was the defendant's case that it should have its costs paid by the prosecutor on a party/party basis until 10 November 2003 and thereafter on an indemnity basis, because at that point the defendant had indicated its willingness to plead guilty to the charge upon which it was convicted, provided that the other charges were not pursued. Otherwise, it would only be if there had been some disentitling conduct on the defendant's part, that it would not have a costs order in its favour. There was no such conduct.

47 To the contrary, the prosecution led evidence from Dr Gilmore, who had given evidence in the Coronial proceedings, that if the crane had been designed properly, there would have been no difficulty in it carrying the load it did on 29 November. When Dr Gilmore gave the same evidence in these proceedings, it proved fatal to the prosecution case. It was argued that had the prosecution given proper consideration to this evidentiary difficulty, the case would never have been brought. This, too, provided a proper basis for the making of an indemnity costs order in the defendant's favour.

48 The prosecution objected to an indemnity costs orders flowing from unsuccessful negotiations about entry of a plea. The prosecutor should not be punished for pursing a public duty, by the imposition of an indemnity costs order. In any event, the plea bargain was not proposed in relation to but one count and what was proposed as to facts to be agreed was, in any event, different to the findings eventually made against the defendant, and contrary to the evidence. As to Dr Gilmore, he was called because the prosecutor had a duty to call him on the issue of how the crane had collapsed. His evidence was contrary to that of Dr Baigent. Just because the Coroner made a finding that the crane would not have collapsed if properly designed, did not mean the prosecutions ought not to have been brought, because offences in relation to 29 November were made out, albeit against Lindores.

49 It must be concluded that, given the way in which these charges were framed and the prosecutions then heard together, the prosecution found it necessary to call the evidence which it did, in order to make out the various charges laid and to meet anticipated defences. That cannot mean, in circumstances such as this, where the charges laid have largely failed, that not only should the prosecution be relieved of any obligation to meet the defendant's costs, but that the defendants should also meet the prosecution's costs, in relation to all charges. To so exercise the costs' discretion would, in my view, not achieve justice as between these parties.

50 I also cannot accept the submission that if the prosecution had only pursued the charge upon which it succeeded, all of the evidence led would have been called. This trial lasted for over three weeks. In relation to Leightons, the only charge made out was in relation to one aspect of the system of work charge brought in relation to the events of 28 November. The other four charges related to 29 November. What occurred on 29 November had only limited relevance to the offence made out. It is difficult to see the relevance of the evidence led in relation to the aspects of the charges concerning matters such as inadequate supervision, training, instruction and information, work method statements, the crane's inherent design defects and undetectable defects in welds, in relation to the charge upon which the prosecution succeeded. This must be reflected in the costs order made.

51 I also do not accept, however, that the unsuccessful negotiations in relation to a plea of guilty being entered by the defendant, should be reflected in an indemnity costs order in its favour. I would be reluctant to ever adopt such an approach in relation to unsuccessful plea bargaining exercises. More so, when consideration is given to the offence in fact proven against the defendant and what was proposed by way of its plea and the basis upon which it was to be entered.

52 I do accept that the charges which failed, because of the view reached by Peterson J as to the inherent design flaws in the crane, cannot be overlooked. His Honour's conclusion accorded with that apparently reached by the Coroner and the opinion of both Dr Gilmore and Mr Baigent, which led to his Honour to observe that 'the crane, as designed, had an inherent defect, the result of which was to cause a risk of collapse which could not be known' [59].

53 Having considered the claim for an indemnity costs order in the context of the prosecution case advanced and the evidence called, I am not satisfied that the circumstances were such that such a costs order can properly follow. I have been influenced in this conclusion by the Full Court's consideration of indemnity costs orders in WorkCover Authority of New South Wales (Inspector Smith) v Dubavo Pty Limited (Unreported; Fisher P, Marks and Schmidt JJ (dissenting); 5 March 1998). There the prosecution had failed entirely and the trial judge made an indemnity costs order against the prosecutor. The majority took the view that while the Court had power to make an indemnity costs order in the proceedings, such an order should not have been made in circumstances where the prosecuting Inspector expressed opinions favourable to the defendant in the Coronial proceedings, but was not called in the prosecution case in this Court. Those circumstances were not viewed as being such that they would justify an indemnity costs order.

54 I am satisfied, nevertheless, that the circumstances here in question do put beyond doubt that the defendant must receive an order in its favour for costs. Given the circumstances which arise for consideration, I take the view that a just exercise of the discretion is not to make costs orders in favour of both the prosecution and the defendant, in respect of the various charges which succeeded and failed, but rather to adopt the approach of apportionment, utilised by Walton J in O'Sullivan.

55 In that case five prosecutions were brought. Two failed. Walton J took the view that they were discrete matters, in respect of which little time was taken. His Honour made a costs order in favour of the prosecutor, but with only 70% of the costs recoverable from the defendant.

56 Here, five charges were brought, in circumstances where Peterson J was justly critical of the approach adopted to their drafting and the consequences which this had for the trial. The four charges brought in relation to 29 November failed entirely. Only one aspect, albeit an important one, of the charge in relation to 28 November succeeded. I am satisfied that in all of the circumstances, a costs order should be made in favour of the defendant, but with only 75 % of the costs recoverable from the prosecutor.

Penalties for Lindore's offence - IRC2000/241, 243, 244 and 246

57 The defendant was convicted of only one aspect of each of these charges, namely, that there was no facility in the crane to give any indication to Mr Lowther of the residual weight of his load. The other three particulars of the charge relating to the Markload system; the luff pump and the pressure setting for the luff pump, were not made out.

58 This led to convictions under s15 and s16 of the Act, for both 28 and 29 November, in respect of that aspect of the charge, which went to the erection and commissioning of the crane.

59 It is apparent that each of these failures, while involving discrete breaches, all arose out of one course of conduct, a matter relevant to determining penalty.

60 The parties were significantly at odds as to the findings properly relevant to sentencing for these offences. It was the defendant's case that the prosecutor's submissions on penalty were neither objective, nor a true reflection of the sentencing judgment.

61 The prosecutor submitted that the relevant factual findings were: Lindores Crane & Rigging (Aust) Pty Ltd ("Lindores") had provided (erected and commissioned) a tower crane for use by Leightons on its building site at Tweed Heads. Lindores also provided a driver, a dogman/relief driver and other dogmen to operate the crane.

Lindores erected and commissioned a Favco STD 1000 tower crane, serial number 633 ("Crane"). Lindores had extended the length of the boom of the crane so that it had a working radius of 62m. It had done this without informing Lucon, the owner of the crane, of its intention to do so and without Lindores having made any real enquiries about the suitability of those alterations (see Para 99 judgement). This exposed the crane to the risk that it was highly likely to collapse . (See Para 99 judgement).

In commissioning the crane Lindores provided Leightons with a document (ex 11) that falsely indicated that the crane had a load limiting system fitted and operational. Leightons had been informed by Lindores, through its employee Gillespie, that the crane had been fitted with a functioning Markload limiter, the effect of which would be to cause the crane to stop if it were overloaded. Unknown to Leightons, the Markload Limiter had been inactivated in the crane cabin. The cane also had a load gauge and radius indicator facility in the cabin that reflected the recommended maximum weights on the hook of the crane at various radii.

The crane had been commissioned with a load gauge in the form of a dial. This gauge did not give accurate readings below 2 or 4 tonnes depending upon whether the speed selected was in the high or low range. The load gauge was in a configuration which was not suited to the crane operating with a boom of some 64 metres because the maximum SWL at flat stick was not capable of being illustrated on the gauge with any precision ..... in combination with the radius indicator the load gauge was crucial to the safe operation of the crane. The absence of the Markload system in an operating condition and the inability of the load gauge to give a true indication of weight under 2 tonnes at high speed or 4 tonnes at low speed means that when operating at flat stick, there was no facility in the crane to give any indication to Mr Lowther of the residual weight in his load. (Para 106 judgement).

At the relevant times on 28 November 1996, in addition to others, the following persons were working on the Site:

(a) John (also known as Jason) Lowther, an employee of Lindores, working as the driver of the crane; (b) Timothy Perrett, an employee of Lindores, working as the dogman at the point were the kibble was filled with concrete; (c) Larry Gee, an employee of Lindores, working as the dogman at the point where concrete columns were being poured; (d) Wayne Master, an employee of Shepherds Contracting Pty Ltd working as a leading hand concreter. (e) Glenn McLaren, an employee of Shepherds Contracting Pty Ltd, working as a concreter. (f) Stephen Burgess, a formwork carpenter who along the Kassebuam had just completed the formwork for the column the subject of the concrete pour giving rise to the incident. (g) Bruce Kassebuam, another formwork carpenter. (h) Mark Wollaston, the foreman employed by the defendant.

On 29 November two additional persons were on site. Rodney Tuala was assisting Master and Timothy Perrott, a dogman, on the scaffold, which had been placed near another formwork column in preparation for a pour.

Late in the afternoon on 28 November 1996, the Crane was used to pour columns identified as C101 and C102. Larry Gee was standing on a scaffold near columns C101 and C102 so that he could direct the Crane to pour the columns. Wayne Master and Glenn McLaren were also standing on the scaffold with Larry Gee. The columns were approximately 3 metres high and the platform of the scaffold was at the height of the top of the formwork for the columns i.e. 3 metres.

The centres of columns C101 and C102 were at a distance of approximately 61 metres and 58 metres, respectively, from the centre of the Crane.

At approximately 4.45pm the large kibble was filled with concrete and used to pour column C102.

The large kibble which weighed approximately .620 tonne had been loaded with 1.4 cubic metres of concrete weighing 3.36 tonnes, bringing the total weight to approximately 4 tonnes before column C102 was poured.

The Crane was then directed to move to a position so that column C101 could be poured.

The kibble was lowered so that column C101 could be poured. At this time the kibble and its content of concrete weighed at least 2.96 tonnes and perhaps as much as 3.2 tonnes, but in any event will in excess of the safe working load of 1.5 tonnes at the relevant distance from the base of the tower crane.

The evidence of Burgess was to the effect that all cranes experience the phenomenon of spring in the jib.

As the kibble oscillated it attached to scaffold on which Messrs Gee, Masters and McLaren were standing, causing the scaffold to move sharply and be lifted at one end.

Masters jumped off the scaffold to the ground, McLaren climbed onto the formwork for the column being poured, and Mr Gee ducked away from the kibble.

Gee was dogging the crane at the point of loading. Again the large kibble was in use. It was loaded with at least enough concrete to pour three columns, 404, 201 and 213 a total of approximately 1.4 c metres. Column was at a radius of 37 metres and the load was within a SWL at that distance.

Column 404 was poured without incident and the crane moved the load out to pour the remaining columns. It stopped with the boom above column 201. At this time the weight on the hook was in excess of the SWL of 1.5 tonnes at that radius. The boom collapsed killing 2 workers, Tuala and Master. Perrett jumped clear.

After the collapse the kibble and the remains of its contents were weighed and found to weigh 2.96 tonnes dry weight. Peterson J concluded that the loaded kibble remains at a weight well in excess of the relevant SWL flatstick ... the kibble weighed at least 2.96 and perhaps 3.2 tonne . (paragraph 29)

62 The defendant's argument was that the deficiencies in the gauge which had led to the convictions were demonstrable on a photograph in evidence. The problem was that while the gauge was working accurately, it was not calibrated for under two tonnes. While the needle moved below that weight, there were no markings to indicate weight below that amount. This was what Peterson J accepted as generating the relevant risk.

63 That risk had no connection with the events of 28 November or 29 November. On 28 November, it was common ground that the evidence showed that the load in question was 2.96 tonnes, therefore registering on the relevant calibration. On 29 November the load was between 2.97 and 3.2 tonnes, again a tonnage being accurately shown on the gauge.

64 The expert evidence unanimously showed that the consequences of the design defects in the crane were that the crane was a time bomb, with catastrophic collapse the inevitable result. But for the design defect, even an overloading on 28 or 29 November, would not have led to a collapse.

65 The trial judge's reasoning had led to conviction on four counts, because of the common factual foundation for each charge. That was in relation to the absence of calibration above four tonnes and below two tonnes, but it could not be overlooked, when penalty was imposed, that the evidence showed that the loads being carried fell within the gauge calibrations. While the prosecutor asserted that it was relevant to this charge, that the mark load system was not operable, it could also not be overlooked that this formed the basis of a separate charge, of which the defendant was acquitted (at [102].) It followed that the factual underpinnings of the conviction were of a limited compass. The submission that on 29 November Mr Lowther, the crane driver, had no facility on the gauge to ascertain his safe working limit was false on the evidence and the conclusions which Peterson J had reached. The factual findings relevant to these convictions, were in fact divorced from the events of 28 and 29 November.

66 On that day, the gauge gave an accurate indication of the load being carried. Mr Lowther wrongly and deliberately operated beyond the maximum load, when he had available to him all necessary information to avoid an overload. This was found to have been an aberrant act of his own, in a context where the gauge in question came with the crane which the defendant had itself hired from another company, Lucon.

67 The prosecutor accepted that there was no evidence as to the speed at which the crane was being operated on either 28 or 29 November, although the load was known. The evidence was that the loads were always operated by the driver at high speed. The prosecutor also accepted that this did not assist its case. It was also clarified that that it was not submitted that the crane had collapsed or the incident on 28th November had occurred, because Mr Lowther could not read the gauge. Rather, it was submitted that the finding was that it was crucial to the safe operation of the crane that it have a properly graduated load gauge and that in the absence of such a gauge and an operating mark load system, there was a grave risk to safety. This was the basis upon which the conviction rested. It was, nevertheless, accepted that Lindores was not to be fined as having responsibility for the deaths which had occurred, or the collapse of the crane.

68 It follows that in assessing the nature and seriousness of the offence here in question, many aspects of the events of 28 and 29 November are not relevant. The kibble striking the scaffold on 28 November and the collapse of the crane on 29 November and the risks to safety which these incidents gave rise to, were not the result of the inadequate gauge upon which these convictions rested.

69 His Honour concluded at [105] and [106] that; 105 As to the graduation on the load gauge, I take a different view. The load gauge was in a configuration which was not suited to the crane operating with a boom of some 64 m, because the maximum SWL at flatstick was not capable of being illustrated on the gauge with any precision. Mr Beashel dealt with the matter this way: Q. So if you, for example wanted to be sure that you were not picking up a load of anything more than 1.5 tonnes, how would this gauge help you?

A. It would rise near enough to, say, you see the "H" or the "I", the needle would come up around that. So it would give you an approximation. You don't really know.

106 It seems to me that the load gauge, in combination with the radius indicator, was crucial to the safe operation of the crane. The absence of the Markload system in an operating condition and the inability of the load gauge to give a true indication of weight under 2 tonnes at high speed, or 4 tonnes at low speed, means that when operating at flatstick, there was no facility in the crane to give any indication to Mr Lowther of the residual weight of his load.

70 Mr Lowther did not give evidence, due to his medical condition, although a statement which he made was tendered (see [6] and [7] of the judgment). His evidence was that when doing the work in question it was normal to have the hoist speed in high range. There was also other evidence which showed that the crane was operated at or below 1.5 tonnes maximum radius (see for example [56]). It is in this context that Peterson J's conclusions at [105] and [106] must be understood.

71 It follows that the nature and quality of the risk to which the breaches here in question in fact gave rise, were not as the prosecutor advanced in the written submission. The evidence did, however, show that there were various people working on the site, both employees and non employees, erecting concrete columns, with the crane being used with a kibble to lift and pour the concrete. The crane was operating with heavy loads and that operation was not safe, in the context of the way in which the gauge was calibrated. Finally, it was not the prosecutor's case, however, that this deficiency led either to the collapse of the crane or the kibble striking the scaffold on 28 November, given the weight of the loads then being lifted.

72 In its written submission, the prosecution put that: Many decisions of this Court and its predecessors have demonstrated that the mere occurrence of an accident causing injury to an employee is not in itself sufficient to establish the commission of an offence under s15(1). It is necessary to establish both a relevant "failure" on the part of the employer and a "causal nexus" between the conduct of the defendant and the consequent risk to the health, safety and welfare of its employees: see McMartin ; Drake at 34; Cullen at 209; Dawson at 122-121; Haynes at 156-157; and Kirkby at 49-50. There must be a causal connection between the alleged conduct of the defendant and the alleged risk, that is, the alleged failure must cause the detriment to the safety of the person concerned: W orkCover Authority of NSW v Mailtand City Council (1998) 83 IR 362 at 377.

However, it is not necessary to demonstrate a causal connection between conduct of the defendant and the precise circumstances of the accident which gave rise to the prosecution. Rather, the causal connection must be between that conduct and the risk to safety. In Drake at 39-40 the Full Bench stated:

The general duties created by the OH&S Act are directed at obviating "risks" to the health, safety and welfare of persons in the workplace: see Haynes v C I & D Manufacturing Pty Ltd ( 1995) 60 IR 149 at 158 - 159. The occurrence of an accident and the sustaining of injuries by an employee will certainly represent relevant evidence of the existence of a risk to the health and safety of employees and the seriousness of that risk. However, it is not the accident itself which constitutes the offence, but rather the failure of the employer to ensure that its employees are not exposed to risks while at work.

In the present case the fact that no one was injured in the accident or that property was not damaged on 28 November 1996 does not mean that the risks to health and safety were not grave.

A measure of the gravity of the risk can be found in the measures taken by the three men who were working on the scaffold preparing to manoeuvre the kibble and empty sufficient of its contents to fill the formwork for the column.

McLaren's evidence referred to by his Honour Peterson J at paragraph 94 of his judgement is also a reflection of the gravity of the breach in this case.

As for the accident of 29 November the risk to health and safety was gravest. The crane driver had no way of accurately determining whether the load on the hook was within SWL of the crane or not. A combination of a (sic) inadequate load gauge and the absence of working Markload warning and limiting device seriously impacted upon the crane driver's capacity to determine the weight of his load under 2 or 4 tonnes (dependent upon the speed at which the crane was not working).

73 At [94] Peterson J quoted Mr McLaren's evidence about the large kibble being used on 28 November, when considering the charge made out against Leightons, in the context of his concern about the crane working at flatstick.

74 It must be observed that the latter part of the submission was quite contrary to what was advanced orally in reply and to the findings of Peterson J. The evidence his Honour accepted, showed that given the weight in question on both 28 and 29 November, the gauge accurately showed the weight of the loads being carried (see [82], [29] and [68]). It was otherwise submitted: Those offences relate to the two days when the crane was used to pour columns at flat stick and when the need for the driver to know accurately the weight of his load (below 2 and 4 tonnes was critical) if the crane was to operate within its published SWL.

Those at risk included employees and non-employees and the fines imposed ought to reflect the duties owed to each group of those put at risk.

The risks were obvious and foreseeable. They were as obvious as the face of the dial that lacked the necessary graduations to inform the driver of the actual weight on the hook below 2 or 4 tonnes.

The remedy was simple and available: a new face for the dial or a new gauge and or a commissioned and functioning Markload system. The latter would have cost only about $1000, and the work involved was no more than the fitting of a replacement computer chip in the unit which was itself already fitted to the crane and able to operate for a boom of 57 metres. One would have though (sic) that the natural consequence of extending the boom to 64 metres would have been to replace the chip in the Markload system so as to render it functional for a boom of that extended length. Instead of these modifications Leightons was provided with a document completed by the Lindores supervisor which recorded that the limiter had been inspected, tested and proved satisfactory. This gave an entirely false picture because at all material times the device was turned off. (Judgement Para 18). One could relevantly add to his Honour's conclusions that even if the device had been turned on it would not have functioned accurately with a boom of 64 metres in length.

75 It seems to me that it cannot be overlooked that Peterson J acquitted the defendant of the charge relating to the Markload system at [103], when considering the charge that the crane was inadequately commissioned. The absence of the Markload system in an operating condition, was however accepted, at [106] as relevant to the charges which here arise for penalty.

76 It follows that the risk in question must be assessed as that flowing naturally from the difficulty identified with the gauge, his Honour having found that it was crucial to the safe operation of the crane in the absence of an operating Markload system, but there being no evidence that this difficulty had given rise to what occurred on 28 or 29 November. The collapse of the crane resulted from the deficiencies identified by the experts in relation to design, in respect of which the defendant was acquitted of responsibility. The events of 28 November, his Honour found resulted from the problem identified in the system of work implemented by Leightons.

77 It was also submitted by the prosecution that the gravamen of the offences in this matter were not the same as between Leightons and Lindores. The burden rested much heavier upon Lindores. It controlled the plant, it commissioned the plant and it falsely represented the plant as being fitted with a limiting system which was neither operating or operable. The defendant argued to the contrary.

78 There was obvious difficulty in the submission so advanced being accepted in the context of the charges of which the parties were respectively found guilty. Perhaps they were explicable in the context of all of the charges laid. Sentencing is, however, concerned with what in fact was made out in relation to the convictions.

79 Having drawn all of these factors together, I am satisfied that it must be concluded that the offences in question were serious, given the work being undertaken, although they would have been more serious, had it been established that the problems with the load gauge had contributed to what occurred on either 28 or 29 November. That this risk was foreseeable cannot be doubted. In a context where the defendant wrongly certified that the Markload system was operating, a gauge capable of giving a true indication of the events should plainly have been provided. There was no suggestion that there was any difficulty in such a gauge being used.

80 I am satisfied that in this case deterrence, both specific and general, must be taken into account in the penalty imposed. The breaches reflect a situation which persisted over the course of the two days in question. A first offence was involved on the first day. Given the industry in question and the finding that the gauge was crucial to the safe operation of the crane, there is no reason upon which it might properly be concluded that deterrence should not be taken into account in fixing penalty.

81 No submissions were advanced as to such matters. Discount does not arise for consideration, as the charges were all defended.

82 This principle has again recently been discussed by the Full Court in WorkCover Authority of New South Wales (Inspector Mansell) v Jian Chen and Obing Pty Limited [2004] NSWIRComm 247. In the case of multiple offences such as this, the principle requires that an appropriate penalty be set for each offence and that then questions of cumulation, concurrence and totality be considered. The Court must also determine whether the sum of the separate sentences properly reflects the totality of the criminality involved.

83 The fact that all of the offences arose out of the one course of conduct must be considered. That s15 and s16 of the Act involve different offences must also not be overlooked.

84 Having considered all of the factors earlier mentioned, I have concluded that in the case of the first offence brought under s15 in respect of 28 November, where the maximum penalty is $500,000 a penalty of $80,000 must be fixed and in the remaining three, where the maximum is $750,000 a penalty of $90,000 must flow, making a total of $350,000. The principle of totality must then be applied so as to arrive at an appropriate penalty to reflect the overall criminality. I asses this as $185,000. That figure must then be reflected in the individual penalties imposed, which I assess at $71,000 for the first offence and $38,000 for the other three.

85 The prosecutor advanced similar submissions in relation to the costs orders to be made in the case of this defendant. Those orders were also opposed by Lindores, for whom it was argued that in accordance with the approach of the Full Court in WorkCover Authority of New South Wales (Inspector Dawson) v Plastachem Pty Ltd (2001) 110 IR 351, costs orders should be made against the prosecution. In the circumstances it was agreed that it would not be just and reasonable to deprive the defendant of an order for costs (Latoudis per Mason CJ at 542).

86 Here it was relevant that the defendant had been faced with a multiplicity of charges which overlapped to a considerable extent. Peterson J found the formulation adopted confusing in form, repetitive and leading to unnecessary difficulty at trial. His Honour had approached his task by identifying the substance of the various allegations, with the result that the charges going to inadequacy in supervision; failure to provide adequate training and instruction; failure to provide a work method statement; failure to make necessary enquiries to ensure safety prior to increasing the length of the boom and three of the four aspects of the charge relating to failure to ensure that the crane was adequately erected and commissioned, were all dismissed.

87 It was accepted that in those circumstance a proper approach to the question of costs was to adopt the concept of apportionment adopted by Walton J in O'Sullivan. An appropriate exercise of the discretion in those circumstances was argued to involve requiring the prosecutor to pay 80% of the defendant's costs.

88 It was also argued to be relevant that the common factual substratum for the aspect of the four charges in respect of which the defendant was found guilty, the problem identified with the gauge, was a difficulty obvious from an inspection of a photograph of the gauge. That, it was submitted could not, on any view, have required a four week trial to establish that the lack of calibration on the gauge created a risk to safety.

89 Again I am satisfied that justice in all of these circumstances could not be achieved if the defendant was deprived of a costs order, given the charges which it successfully resisted. The conclusion that much of the evidence called by the prosecution was not relevant to the charge made out, was unavoidable. I am satisfied that an appropriate exercise of the Court's discretion in all of these circumstances, would not involve costs orders being made against both the defendant and the prosecution. Apportionment must be adopted, if justice is to be achieved. I have concluded that a costs order must be made in favour of the defendant, but on the basis that only 80% of the costs be recoverable from the prosecutor.

90 The defendant Leightons is ordered to pay a penalty of $130,000, with a moiety to the prosecutor. The prosecutor is also ordered to pay 75% of the defendant's costs, as agreed or assessed in accordance with the Court's Rules.

91 The defendant Lindores is ordered to pay a total penalty of $185,000, with a moiety to the prosecutor. The prosecutor is also ordered to pay 80% of the defendant's costs, as agreed or assessed in accordance with the Court's Rules. ------------------------

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