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

CITATION : WorkCover Authority of NSW (Inspector Keenan) v Leighton Contractors Pty Ltd and Lindores Crane & Rigging (Aust) Pty Ltd [2004] NSWIRComm 31 PROSECUTOR WorkCover Authority of New South Wales

PARTIES : DEFENDANT Leighton Contractors Pty Limited

DEFENDANT Lindores Crane and Rigging (Aust) Pty Limited FILE NUMBER: IRC232, 233, 234, 235, 236, 239, 240, 241, 242, 243, 244, 245, 246, 248 of 2000 CORAM: Peterson J CATCHWORDS : Occupational health and safety - ss 15 and 16 - prosecutions of builder and crane provider after collapse of tower crane - inherent defects in design of crane - overloading at time of collapse - incident endangering workers on previous day - crane controls inadequate to inform of weight load at all times - questions of supervision, training, erection and commissioning of crane - extension of boom of crane - certain charges found proven, others not proven - issue of penalty to be further dealt with. LEGISLATION CITED : Occupational Health and Safety Act 1983 WorkCover Authority of NSW (Inspector Maltby) & Anor v Abigroup Contractors Pty Ltd & Luis Bustamante [2003] NSWIRComm 35 WorkCover Authority of NSW (Inspector Smith) v Dubavo Pty Ltd, unreported, CT93/1247-1249, 24 July 1995, Peterson J CASES CITED : Drake Personnel Ltd v WorkCover Authority of NSW (1999) 90 IR 432 Kennedy-Taylor (NSW) Pty Ltd v WorkCover Authority of NSW (2000) 102 IR 57 WorkCover Authority of NSW (Inspector Mulder) v Yass Shire Council [2000] NSWIRComm 57 WorkCover Authority of NSW (Inspector Mulder) v Arbor Products International (Australia) Pty Ltd (2001) 105 IR 81 HEARING DATES: 11/03/2003; 11/04/2003; 11/05/2003; 11/06/2003; 11/07/2003; 11/10/2003; 11/11/2003; 11/12/2003; 11/13/2003; 11/14/2003; 11/18/2003; 11/19/2003; 11/20/2003; 11/21/2003; 11/24/2003; 11/25/2003; 11/27/2003; 11/28/2003 DATE OF JUDGMENT: 02/27/2004

PROSECUTOR Mr J V Agius SC with Mr P M Skinner of counsel

SOLICITOR WorkCover Authority of New South Wales SYDNEY

FIRST DEFENDANT Mr S J Rushton SC with Mr M A Jones of counsel

LEGAL REPRESENTATIVES: SOLICITOR Corrs Chambers Westgarth SYDNEY

SECOND DEFENDANT Mr R A Perry of counsel with Mr B K Cross of counsel

SOLICITOR McCullough Robertson BRISBANE

CORAM: PETERSON J DATE: 27 FEBRUARY 2004 Matter Nos. IRC232 and 233, 235 of 2000

WORKCOVER AUTHORITY OF NSW (INSPECTOR KEENAN) v LEIGHTON CONTRACTORS PTY LIMITED Prosecution under ss 15(1) & 49(4) of the Occupational Health and Safety Act 1983

WORKCOVER AUTHORITY OF NSW (INSPECTOR KEENAN) v LEIGHTON CONTRACTORS PTY LIMITED Prosecution under ss 16(1) & 49(4) of the Occupational Health and Safety Act 1983

Matter Nos IRC239, 240, 241, 242, 243, 245 and 248 of 2000

WORKCOVER AUTHORITY OF NSW (INSPECTOR KEENAN) v LINDORES CRANE AND RIGGING (AUST) PTY LIMITED Prosecutions under ss 15(1) & 49(4) of the Occupational Health and Safety Act 1983

WORKCOVER AUTHORITY OF NSW (INSPECTOR KEENAN) v LINDORES CRANE AND RIGGING (AUST) PTY LIMITED Prosecutions under ss 16(1) & 49(4) of the Occupational Health and Safety Act 1983

1 Inspector Keenan, on behalf of the WorkCover Authority of New South Wales, has initiated prosecutions of Leighton Contractors Pty Limited ('Leightons') and Lindores Cranes and Rigging Pty Limited ('Lindores') in relation to alleged breaches of the Occupational Health and Safety Act 1983 ('the OHS Act'). The charges derive from events leading to and involving the collapse of a tower crane, utilised by Leightons as the principal contractor in the construction of the Twin Towers Resort at Tweed Heads, which was provided and operated by Lindores. Leightons and Lindores have pleaded not guilty in respect of each charge. The charges have been heard together by consent.

2 The crane collapsed on 29 November 1996 causing the death instantly of Wayne Master, an employee of a subcontractor concreting company, and causing fatal injuries to Rodney Taula, another employee of that company. The jib of the crane struck the scaffold upon which they were working for the purpose of pouring a concrete column. An employee of Lindores, Timothy A. L. Perrett, was also on the scaffold working as the dogman to the crane, and suffered injuries when struck by the ponderweight, a 600 kg metal weight intended to prevent the load chains swinging when the crane is slewed.

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

6 Before turning to the facts, it is necessary to record that two persons, who would have been able to give material evidence of the relevant facts, were excused from the obligation to give evidence. Each person was summoned to give oral evidence in each prosecution case. Applications made by the two persons to excuse them were contested but granted after hearing argument. The person driving the crane at the time of the accident, John (also known as Jason) Lowther, was in no fit medical condition to give evidence and by ruling made on 13 November 2003, , and reasons then given, he was released from his summons.

7 On 14 November 2003, parts of a record of interview of Mr Lowther were sought to be tendered by the prosecutor against Lindores. By ruling given that day and the reasons then given, those portions of the evidence were admitted.

8 On 19 November 2003, a decision was given in relation to the Lindores supervisor responsible for commissioning the crane and overseeing the crane crew, Leonard Gillespie, which excused him from the obligation to give evidence. The position here was different to that of Mr Lowther, in that Mr Gillespie has been charged personally with offences under the Occupational Health and Safety Act 1983 arising out of the operation of this crane, charges yet to be heard. While the result of that ruling was that Mr Gillespie would not be required to give oral evidence, nevertheless a substantial part of a Record of Interview of Mr Gillespie was admitted under s 31M(3) of the Occupational Health and Safety Act against Lindores.

9 The crane which collapsed was a Favco STD 1000, Serial No. 633, owned by Lurgi Australia Pty Limited, leased by Lucon (Australia) Pty Limited and hired by Lucon to Lindores. Lindores had contracted with Leightons to erect and commission a crane and to provide a driver, a dogman/relief driver and other dogmen. The crane was a tower crane which provided an operating cabin on a deck, known as the bridge or machine deck, upon a tower. The crane had a boom, or jib, which in this case had been lengthened from its 57 m overall length to 64 m to make it suitable to the needs of the project. At 57 m it had a 55 m working radius which, with the lengthening of the jib, increased to 62 m. The radius is the distance between the centre of the tower and the outer reach of the jib when fully lowered towards horizontal. The crane operated in the usual way by turning on its vertical axis, called slewing, thereby moving the jib towards the work point, and by lifting and lowering the jib to position the lift point.

10 Behind the crane's cabin there was an A-frame, a four-legged steel structure, roughly in the shape of an A, with horizontal and triangulated cross-bracing within the front pair of legs, horizontal bracing of the rear legs, and angled bracing from the base of the rear legs to a point about one-third up the front legs. The purpose of the A-frame was to provide an elevated point for pulleys through which ran a cable supporting the outer end of the jib and by which the jib was lifted or lowered - in crane parlance, "luffed" in or out. It was by luffing the jib, which was of fixed length, that the hook carrying the load was able to be positioned either closer to or further from the operator. The luff cable ran from a winding drum, called the luff drum, which operated hydraulically off the crane motor.

11 The position of the jib, between its lowest point towards horizontal and its highest point, towards vertical, was controlled or held in position, by an hydraulic luff pump. The pump was able to be calibrated so that it would be set at either neutral or with an upward or downward bias. The adjustment of the pump was a simple mechanical process, described in evidence by Inspector Haines, an Assistant Principal Inspector with the WorkCover Authority. When the brakes on the luff drum were released, the luff pump effect was intended to hold the jib of the crane in position. The pump manufacturer's specifications required 275 bar of pressure in relation to the downward tendency. Inspector Haines found the luff pump to be calibrated at 230 bar, the effect of which was once pressure exceeding 230 bar was required to support the boom, the relief valve in the pump would operate and would limit the pressure supplied to 230 bar. This could have the effect of causing the boom to drop uncontrollably, unless the crane operator manually counteracted the downward bias effect by application of the crane's controls or the brakes.

12 In addition to luffing the jib, it was also necessary to lift and lower the load itself. This was done via a hoist drum, from which the hoist cable was unwound or rewound. This drum operated like the luff drum, but had two speeds, high and low.

13 The crane cabin contained a gauge on the dash panel in front of the operator, which indicated the approximate weight of the load on the hook, but only when the load was actually being hoisted up or down ("the load gauge"). There was also on the panel a metal strip upon which was engraved the various maximum load weights according to the distance out the crane might work. The metal strip, called a radius indicator, had a moving pointer, which, if properly calibrated, indicated the radius at which the jib was positioned and the corresponding maximum safe working load ("SWL"). At a closer point of working, with the jib more towards the vertical, the largest SWL could be carried. At the furthest point, with the jib near horizontal (called "flatstick", although not actually flat), the SWL was very much reduced.

14 The SWL's which were utilised were obtained from Mr Edward Favelle, who had an association with the crane manufacturer, Favco, over many years, on and off, and was then working as a crane industry consultant. The SWL's at various radii were then stamped on the metal strip to form the radius indicator. This was done by a Lindores employee, Mr D R Phillips, then an apprentice diesel fitter engaged in commissioning the crane.

15 The radius indicator showed a range of working distance/SWL's from 8 tonnes at 20 m distance to 1.5 tonnes at 62 m, that is, flatstick.

16 The extension of the jib was effected by Lindores inserting, into the jib obtained from Lucon, another 20 foot jib section which was already owned by Lindores. This section was not originally from crane 633, but from another Lucon "sister" crane, also a Favco STD 1000, serial no. 634. In addition, Lucon supplied Lindores, in answer to an enquiry seeking them for crane 633, with the jib component weights for crane 634. Crane 634 had been modified in about 1991 by strengthening the A-frame to better enable it to carry a 64 m jib. This was known to both Lucon and Lindores, the latter having done the modification work, although the evidence sheeting home that knowledge to Mr Gillespie, through his record of interview, was not very specific and, in any event, admitted only against Leightons. Mr Gillespie said in that record that he told one of two named Lucon personnel but could not recall whom. Those persons, Messrs Hughes and Enright, denied any such conversation. There was no exchange of correspondence in 1996 of the kind which was generated between Lucon and Lindores in 1991 when Lindores sought approval to modify crane 634 in the context of a 64 m jib.

17 There was also installed in the crane an electronic load limiting device which could warn of any overweight condition and disable the crane from operating. Such devices are provided for in Australian Standard AS1418.4-1988 - Tower Cranes, and are apparently required by law in Queensland, from whence the crane came, but not in New South Wales. The problem was that the limiter, a Markload brand unit, was suited to the former 57 m jib length but was ineffective with the new jib length. A computer chip to suit operation with a 64 m jib was available in the USA, but an inquiry made about availability by Mr Phillips was not pursued. The new chip would have cost about $1,000.00 and taken some weeks to arrive.

18 Leightons was provided with a document completed by the Lindores supervisor, Mr Gillespie, which recorded that the limiter had been inspected, tested and proved satisfactory. This gave an entirely false picture, because at all relevant times the device was turned off.

19 Mr Gee had been a rigger/dogman from 1980 and had been employed by Lindores in that capacity from 1992. He had not worked with a crane with a jib length of the crane used on the Twin Towers site. He mostly worked with 30m jibs. He worked on the commissioning of the crane but did not put the jib on. He thought the jib was 52 m in length although he was told its length. He put the hoist rope onto the jib, which was already commissioned when he got there. On 28 November 1996, the day before the accident, Mr Gee was working as a dogman to the crane on scaffolding erected around what was to be a 3 m high concrete column, called a split-column, to be completed in two half sections. The first had been prepared with steel reinforcing by the steel fixers and boxed in by the formworkers; the task was to fill the formwork with concrete from a kibble presented by the tower crane. A kibble is the large steel container typically used to lift ready mixed concrete by crane onto larger building sites. The kibble is in the shape of a cone, open at the wider top end and with a chute at the bottom which is opened to drop the concrete.

20 Mr Lowther was driving the crane on 28 November 1996. Mr Gee was acting as dogman at the point where the concreters were working. During the process the kibble became attached to the safety hand railing on the scaffolding, causing it to move sharply. With Mr Gee on the scaffold were Mr Master and another concreter, Glenn Lee McLaren.

21 Mr Gee described the kibble as bouncing up and down through a 12 inch range. He said "they all do". He said it "just pulled the handrail off" the scaffolding. He said "the scaffolding moved around a bit, it was nothing serious". He released the kibble by turning it and the scaffolding dropped back down. They then poured the concrete.

22 Mr McLaren, an employee of a concreting contractor, was working with Mr Master at the site on 28 November 1996. He described a very different picture of the incident with the kibble connecting with the scaffolding that day. In chief he described the large kibble as being 3-4 feet overhead, it very quickly dropped about 6 feet and Mr Gee ducked away. He described the kibble as "dragging the scaffolding and we three around in a semi-circle. It was not very stable and then the scaffolding stabilised". He described it as being dragged in one direction although in cross-examination he drew a diagram of it which indicated a different orientation. He said that Mr Master "blew right up" and said words to the effect, "...this is way too dangerous, I am going to fix it up". He said Mr Master left in the direction of the site offices. He said Mr Gee then asked for the kibble to be jibbed up but it didn't move and he was told by Mr Gee that it was stuck there. It was then hoisted up and Mr McLaren then decided to try and pour the last column. He said he considered dumping the concrete but didn't want to have to clean it up and so undertaking the pour was the lesser of two evils. He said Mr Master said, "no, leave it, its too dangerous" to which he replied, "we have to - the crane's stuck". They then pushed the kibble over the column and with the lightening of the load the crane was able to luff and hoist away.

23 Mr McLaren said that he and Mr Master had decided to use the small kibble. He did not feel safe using the large one. Kibbles have a natural movement. One expects them to sway and move. The large kibble moved around more than he expected and it did not feel safe. Mr Master went away and returned saying, "we are going to do it using the smaller kibble". Mr McLaren was not present on site the following day. In fact the larger kibble was used, but no explanation has been forthcoming as to why that was done contrary to Mr Master's statement the previous day.

24 Mr McLaren said that he worked with Mr Lowther driving the crane on only one day, 28 November 1996. He expressed the opinion that Mr Beashel was a "smoother" crane operator. There was less oscillation and movement of the kibble with Mr Beashel.

25 Mr McLaren's evidence concerning Mr Lowther's driving ability and also the degree of 'drop' of the kibble involved on 28 November, was inconsistent with other evidence. Mr David Perrett, Mr Neumann, Mr Burgess, Mr Gee and Mr Wilkinson worked in various roles on the ground while Mr Lowther was operating the crane. Mr Wilkinson described Mr Lowther as: Very gentle with the machine, dropped things in nice and easily. If you wanted him to stop it would stop straight away. There was no lurching of the crane, I found him very good.

26 Mr Beashel, who had operated the crane up until 28 November 1996 handed the crane over to Mr Lowther and observed his handling of it to be competent. I shall refer later to some of the evidence given by the other witnesses I have mentioned.

27 Whether or not the dropping of the boom on 28 November 1996, particularly if it was more severe as Mr McLaren asserted, was referrable to the downward bias of the luff pump, which caused the driver to have to compensate in his control movements, or the mere 'spring' in the jib is not really clear on the evidence.

28 It is unnecessary for me to detail all of the evidence given surrounding the accident itself. It was established that at the time the crane collapsed on 29 November 1996, it was carrying a kibble with a load of concrete which was later weighed and found to be 2.96 tonnes dryweight. It was estimated that this would have weighed about 3.2 tonnes wet. The weight of the kibble I refer to in the next paragraph. Mr Gee was dogging the crane at the concrete pickup point. He informed Mr Lowther that there was 1.4 cubic metres of concrete available and was told to put it all into the large kibble. Mr Gee knew the first column to be poured, column 404 on the site plan, would take 0.8 cubic metres, leaving 0.6 cubic metres for the columns 201 and 213. Column 404 was at a radius of 37 m and the crane was within the SWL at that distance. Mr Gee handed over the dogging role to Mr Timothy Perrett, who was at the columns to be poured. This handover was in accord with standard practice. Mr Gee could hear the communications between Messrs Lowther, as driver, and Perrett. He later saw the crane move the kibble away from the first column and stop above column 201. He then saw the jib swing away 10-12 m, blown by the wind, then come back. The jib then collapsed. Mr Gee said it did not occur to him that the load would be beyond the maximum weight. He said he made estimates but it was for the driver to inform him if it was overweight.

29 Although there was some evidence that 3.38 tonnes were delivered into the kibble, the preponderance of evidence was that the kibble had been loaded with 1.4 cubic metres weighing 3.36 tonnes. If 0.8 cubic metres was poured into column 404, the remaining 0.6 cubic metres weighed 1.4 tonnes, which would give the remaining payload, including the kibble, a weight of 2.02 tonnes. Once the jib got to its maximum reach, flatstick, it would have been bearing, on this analysis, a weight over half of one tonne above what was thought to be its SWL. However, as I have noted above, the loaded kibble was weighed after the accident and found to be 2.96 tonnes. Three different weights of the kibble were mentioned in the case - 500, 520 and 620 kg. The information document published by the kibble suppliers shows a weight of 620 kg for a kibble of the size here used, but 580 or 590 kg for the next larger kibble. I think the doubt is resolved by accepting the 620 kg reference to be the result of a poor photocopy, but in the scheme of things it matters little. The loaded kibble remains at a weight well in excess of the relevant SWL flatstick whichever weight be utilised. That SWL was 1.5 tonnes; the kibble weighed at least 2.96 and perhaps 3.2 tonnes.

30 Evidence of an expert nature was called in the prosecution case and by Lindores. The witnesses in the prosecution case were Dr Duncan Gilmore of UniQuest Limited, a corporation associated with and providing access to the skills and resources of the University of Queensland; Dr K D Lakeland, also of UniQuest and Mr M B McManus, the Engineering Manager of Favelle Favco Cranes Pty Limited. Each of these persons prepared written reports into the accident.

31 Mr McManus was commissioned by Lucon to attend the Tweed Heads site and report on possible causes of the accident. He went to the site, in company with Inspector Keenan, the prosecutor, the day after the accident. He found two operating features of the crane of potential significance. Firstly, the absence of a safe load indicator and secondly, the calibration of the luff pump was set with a downward bias. While he found no evidence of driver error at the time of the accident, he concluded: The main criticism of the driver is in the area using a crane which had no means of alarming an overload condition. This would be less likely with an SLI in operation. The driver also had no way of knowing his load, which was irresponsible driving.

32 As to the luff pump he stated in his report: When a pump is biased downwards, on release of the brake, the boom would tend to drop until pressure builds up in the system to hold the load, it would then power down until the driver moved the lever sufficiently to change the control pressure to upward movement (or bias).

The importance of this finding is that it suggests the hydraulics were incorrectly set at the time of the accident, this setting would allow a dynamic effect to be injected into the luff system, when the driver did not act to counteract it. This dynamic effect could be a source of repeated loads on the mast which could have contributed to fatigue failure.

He also said: The driver should have reported the luff pump bias problem, and should have had it repaired by a proper re-adjustment. The boom drop should not be tolerated.

33 While the evidence indicated that Mr Lowther had not driven a crane for five years, there was other evidence to the effect that "the touch" in controlling a crane is quickly regained within about an hour. The weight of evidence is in favour of the view that Mr Lowther's ability as a crane driver was not deficient or inadequate. Ultimately, I take the view that the allegation about his inabilities and any resulting failure by Lindores or Leighton had not been made out.

34 Dr Lakeland is a metallurgist, now retired, who undertook testing of the A-frame in an attempt to ascertain the cause of its collapse. His report concludes that the universal beams (the A-frame legs) were manufactured from steel complying with relevant standards. However, he stated: The quality of welding of the tubular struts to the universal beams was not that which would be expected to be used in the manufacture of a lifting crane and one sectioned weld did not comply with the past or present standards. The tubular struts were oxy-cut to the required length and fillet welded straight onto the beam without any further preparation of the joint by dressing of the oxy-cut surface to give a smoother contact with the beam and to remove slag. The joint preparation and workmanship does not comply with the relevant standards, and the resulting weld must be considered to be sub standard.

After examination of the welds and the buckled section D, which is the lower part of section C, the following initial sequence of collapse by compressive plastic buckling is proposed.

The horizontal strut BD-S8, which is the lowest strut on the A-frame, failed. The weld to the web of beam D tore off at the tub/weld interface as shown in Figure 27. It is here that the weld fusion to beam D was very small, the extreme beam deformation and buckling at this point, as well as the impact marks on the web just above the lettering and bent flange indicate that this was the first part of the beam D to collapse.

Other views of the same area of collapse beam D are shown in Figures 6,38,39 and 40. The severity of distortion is extreme, much more so than any other part of the A-frame, leading to the conclusion that this section took most of the deformation and was therefore the first to collapse.

It should be noted that the weld of strut BD S7 held and the steel of the web of the beam was torn out. (Figure 40). The end of BD S7 shown in Figure 27, has been flattened, apparently by the same impact that bent the flange in Figure 27 and 38.

Once the lower part of the A-frame started to collapse, other strut BC-S6 failed at the weld as shown in Figure 25, in a similar manner to that on BD-S8 in Figure 27. Other major deformation in beam D and C then took place. (Figure 41 and Figure 6).

35 In oral evidence, Dr Lakeland referred to the report made by a firm which conducted non-destructive testing of the welds on the beam prior to its assembly on site. At the time of that inspection, Dr Lakeland indicated that no cracks were shown in the welds. However, he indicated that the form of testing undertaken would not detect the deficiencies which he found to exist in the welds. There were no other tests practically available to detect the deficiencies which he had found in the welds.

36 Dr Duncan Gilmore, a consulting mechanical engineer also prepared two reports providing a failure analysis of a crane, one in April 1997 and another, the conclusions of which he regarded as replacing the earlier one, in June 1997. Dr Gilmore also worked through UniQuest. Dr Gilmore concluded that, on the basis of Bureau of Meteorology information, no significant transverse wind loading would have been transmitted structurally to the mast. Wind effect was thus ignored. The mast failure occurred due to column buckling of the front A-frame universal beams. Column buckling is caused by instability during axial compression with resulting gross plastic distortion of the column section. Dr Gilmore reviewed the design of the crane, taking into account design factors in relation to the principle loads resulting from the mass of the crane and highly repetitive loads arising from the intended service of the crane. These design factors must be applied to the resultant load on the mast as it is a critical independent lifting structure which is responsible for manoeuvring the complete jib as well as the payload.

37 In making this analysis, Dr Gilmore applied from the relevant Australian standard, a "duty factor" having regard to the loading cycles anticipated over the life of the crane which he applied at 1.2. He said "a duty factor is a life related safety factor and it is totally independent of something related to hoisting" - "it is a relatively minor safety factor".

38 This approach, which had the effect of adding 20 per cent to the load for which the crane needed to be designed, was disputed by Mr McManus. In a written commentary on Dr Gilmore's report, Mr McManus contended that the hoist factor of 1.3 was the only factor applicable according to the standard. When this conflict of opinion was put to Dr Gilmore by senior counsel for the Prosecutor, by leave, Dr Gilmore adhered strongly to his view. He expressed it, in part, this way: . . . I can explain the reason why I have put in a hoisting factor, and an inertial loading factor quite simply in physical terms. They are independently generated loads. The inertial effect is due to the fact that you either accelerate or brake the payload and jib as you luff or lower. That is the force of acceleration or braking, just as you have in a car when you accelerate or brake. It is to do with the mast of the jib being accelerated. The forces due to hoisting, which is referred to in the standards, are a completely separate phenomenon. They arise not from acceleration or braking, but from, actually from the flexibility of the structure and the drive system which is employed to engage the very initiation of that hoisting, that luffing or the payload being lifted, and a result of that hoist being a flexible structure, the structure itself will resonate and there is some reference in the standards about natural frequency, of which I don't know the natural frequency of this structure, but there will be - that is when you bring on luffing or use of the payload the whole structure will vibrate somewhat. It will bounce. That bouncing is totally independent. If that bouncing is at the same time as you are accelerating it could hold the boom and payload up and that's the reason I have included them as complementary factors . . . . 39 Dr Gilmore calculated that of the load at the masthead, 79 percent was referable to the total luffing weight effect less payload and 21 percent to payload only.

40 Dr Gilmore was taken to evidence he had given in the Coronial Inquiry relating to the deaths from the crane collapse. There he accepted that with the mast luffed to 60.75 metres, as it was at the time of the accident, with 2.96 tonnes payload rather than 1.7 to 1.9 tonnes as it should have been at 60 metres, the increase in mast load would be of the order of 21 percent or one-fifth of the increase in load. In Dr Gilmore's opinion, had the crane been designed properly it should have been able to cope with an increase of that order, which overall, was about 4 percent.

41 In his June 1997 report Dr Gilmore concluded that: …it was possible for the crane to collapse in the manner exhibited if a particular combination of expected dynamic loads caused momentary peak of loads applied to the mast. This would have been the case regardless of whether 2.96 tonnes or the nominal rated load was applied to the hoist hook as payload. This crane would have been susceptible to this form of collapse throughout its working lifetime.

42 Dr Gilmore largely agreed with four of the six conclusions reached by Dr Baigent in his investigation and analysis of the design of the A-frame and the crane. I shall detail these conclusions in the context of dealing with Dr Baigent's evidence.

43 Dr Andrew Baigent is a consulting engineer in private practice undertaking forensic engineering investigations for building, structural and material failures. This work has been undertaken since 2000. Between 1988 and 1999, Dr Baigent was the Managing Director of A H Baigent & Associates, Consulting Engineers, employing a staff of 80 professionals with offices in Melbourne, Sydney and Perth. Dr Baigent's experience in structural engineering is considerable.

44 Dr Baigent was engaged by Lindores to assess and report upon the structural adequacy of the mast of the crane and the structural engineering computations for the mast of the crane were performed by Wholohan Grill & Partners Pty Ltd, on behalf of Favco. Dr Baigent found that the calculations were undertaken on the basis that the column formed by the front legs of the A-frame was treated in the original computations as being a "sway prevented structure" which had the effect that the calculations produced a safe load capacity for the column which was over estimated. He formed this view because the lower segment of the column, being the section between the first horizontal cross brace and the pinned bottom was prevented from swaying (that is the top of the element could sway because it was not braced). Dr Baigent calculated a combined stress ration of 2.072 which exceeded the acceptable level of 1.0 meaning the column was 107.1 over stressed with a 57.8 metre boom. Accordingly, he concluded that the size of the front columns was "vastly inadequate".

45 Dr Baigent expressed this opinion: Furthermore, it is my opinion that the gross design deficiencies in the A-Frame were such, that it was inevitable that at many times in the ordinary, day-to-day use of the crane, the columns would be overstressed. Moreover, it is my opinion that it was inevitable, that at some stage in the ordinary, day-to-day use of the crane, the critical buckling load of the columns would occur, resulting in the buckling collapse of the lower segments of the columns in the A-Frame.

46 Dr Baigent then turned his attention to an analysis of the load capacity of the A-frame accepting that the crane was supporting a 1.5 tonne load at a radius of 62 metres. He concluded: That the luffing rope tension of the crane without load exceeds the safe load capacity of the A-frame. This means that the design of the A-frame is so deficient that it cannot safely support even the weight of the 64.38 metre boom without any load on the hook.

47 Dr Baigent considered the Favelle Favco load chart which supported the view that the crane could carry 1.5 tonnes at a radius of 62 metres. He adverted to the safety factor of 1.3 built into the computations which would allow for a crane to support a load 1.3 x 1.5 tonnes or 1.95 tonnes at that radius. That would not cause the crane to collapse as the steel work of the crane had further safety factors in its design, according to the relevant Australian standards. Upon Dr Baigent's calculations, a static load on the hook of 8.5 tonnes would be necessary to reach the theoretical reserve strength of the crane if it were adequately designed in accordance with AS1250.

48 However, Dr Baigent noted that the individual components of the boom, when weighed after the accident, were found to be 0.31 tonnes heavier than had been assumed when the safe load of the crane was assessed. This meant that the crane would have been overstressed if 1.5 tonnes had been lifted at 62 metres.

49 In relation to the load at the time of the collapse, Dr Baigent stated: I have calculated that the collapse of the crane would be initiated if the hook load exceeded 8.5 tonne. Therefore, for an adequately designed crane, the A-Frame could not have collapsed with a hook load of 2.96 tonne only. The reason that the A-Frame did collapse was due solely, in my opinion, to the deficient design of the A-Frame. Even though the 2.96 tonne load exceeded the stated safe load by almost 100 per cent, it is my opinion that this load could not have caused the crane to collapse if the crane had been designed adequately.

50 Dr Baigent stated in his conclusions as follows: As a result of my review, it is my opinion that: · the original design of the A-Frame was grossly deficient. A design review of the A-Frame was carried out by Wholohan Grill and Partners in August 1983. Unfortunately, after discovering that the design was deficient, they then approved the design on the mistaken impression that their computations were in error. Despite this oversight, the A-Frame design was strengthened in October 1983. In my opinion, this strengthening was inadequate and the A-Frame remained grossly deficient. Following the incident, further strengthening works of the A-Frame were proposed. Again, it is my opinion that this latest strengthening is inadequate and the A-Frame remains grossly deficient. · The crane was lifting a greater load at the time of the collapse than the maximum safe load specified by Favelle Favco on their load chart. · The Favelle Favco load chart is fundamentally flawed. For a 64.38 m boom, there is no safe load that can be carried at a radius of 60.715 m. The crane (A-Frame) was overstressed under the self weight of the boom only. Failure of the A-Frame was an inevitable consequence of operating the crane under the configuration specified by Favelle Favco. · For an adequately designed tower crane confirming to Australian Standards, there should be sufficient capacity in the structure to tolerate an overload. In particular, for a 64.38 m boom and a radius of 60.715 m, the load required to precipitate collapse of the A-Frame is well in excess of five times the safe load specified in the Favelle Favco load chart. · Failure of the A-Frame occurred as a result of gross design deficiencies. The deficiencies were such that failure of the crane was inevitable, even under loading conditions that complied with the load chart for the crane. · Even for the strengthened A-Frame, my analysis has shown that under certain crane configurations, it is possible that a similar type of collapse as that experienced by the A-Frame could occur with loads well within the Favelle Favco Cranes Pty Ltd load chart ranges.

51 These are the conclusions to which Dr. Gilmore was taken for his view of them. He agreed with the first and second points; disagreed with the third, noting that the boom had apparently carried 2.9 tonnes on the day of the collapse; and expressed his view of the fourth conclusion somewhat differently but agreed with the five times factor referred to in that point, he having adopted a range of 4.7 and 6. In relation to the fifth conclusion, he expressed what Dr Baigent called "an inevitability", the collapse of the crane resulting from design deficiencies, as an event which was "highly likely". He agreed with the last point also.

52 In his oral evidence, Dr Baigent was taken to Dr Gilmore's report in respect of the use of the "LUSAS" diagrams of the front column of the A-frame and the buckling effect upon it. He described Case A, a copy of the diagram which is annexed to this judgment, to be "a classical representation of buckling in a sway structure." He agreed that the diagram is representative of the buckling process which would have occurred on the A-frame when the crane collapsed.

53 In cross examination by senior counsel for Leightons, this evidence flowed: Q. Are we to take this from your report as well that, as design, this crane was not capable of lifting, say, 1.5 tonne safely.

A. Certainly. It was not capable of lifting any load at that radius. 54 In cross examination by senior counsel for the Prosecutor, Dr Baigent dealt with the sway structure issue, which affects the factors going into the safe working load or maximum stress calculations, this way:

Q. Don't you, having done the analysis that you have indicated, then step back from that and form a view in relation to whether or not the structure as a whole is a sway prevented or sway not prevented structure?

A. No, that is it totally contrary to the way structural design is performed. Structural design is performed on elements within the structure. That's the way I have approached the design as set out in my report, it is the way Wholohan Grill has approached the subject, it is the way Mr McManus' report and the computations appended to that have approached the problem as well.

55 Dr Baigent was taken to the two welds of cross bracing which were found, after the collapse, to have broken. He agreed that his analysis assumed that the welds did not break before the buckling.

56 Dr Baigent was also asked how he would explain that the crane did not fall over on occasions prior to its collapse when it was operating at or below 1.5 tonnes maximum radius, given his theory that the weight of the boom alone was sufficient to overload it. In answer he said: It is difficult to explain why it did not fall over. On the theory it should have. He said . . . even though the structure, the jib, may have been at radii close to the point where it failed, the fact that it was not meant, that the load in the A-frame was not as high as it was on the day of the incident.

In other areas, the pay loads may not have been as great. So, it just took a unique set of circumstances on the day to cause that to fail. It is very difficult to say why shouldn't it have failed at any other time with any certainty. Later, he was asked this question:

Q. If on prior occasions the crane had worked at that radius with something less than 2.96 tonnes, say if it had done that in the previous 2, 3 or 4 weeks and it had not fallen over then the unique factor is the weight, isn't it, the 2.96 tonnes?

A. The unique factor is the loading conditions that prevailed at the time of the collapse.

57 The high degree of unanimity between the expert witnesses, Dr Gilmore in the prosecutor's case and Dr Baigent in the case for Lindores, leaves only two conflicts, those concerning any inability in the crane as designed to safely carry its boom alone and whether the A-frame design should be treated as a sway prevented or not prevented structure. I prefer Dr Baigent's view as to sway structures but not as to the inability of the crane to carry the boom. I find myself unable to accept the proposition that a boom which operated over a number of weeks, carrying loads in addition to its boom could be regarded as incapable of that task. This difficulty I regard as confirmed by Dr Baigent's inability to explain the phenomenon other than it was the 'unique loading factors' at the time of the accident which caused it to fail. This seems to me to inevitably bring into play the load carried at the time, which is to be contrasted with earlier loads, not demonstrated to be in excess off the load chart, which did not produce failure.

58 This, however, does not finally resolve the matter in the light of Dr Gilmore's conclusion, set out above, that the collapse was a possibility even at the nominal rated load, throughout the crane's working life. Dr Gilmore's conclusion is, I think, more conservative than Dr Baigent's, but they both lead to at least the possibility that the use of the crane at its rated load was capable of causing crane collapse. The approach of the defence cases to this is to rely upon the course the court has taken in a number of cases (WorkCover Authority of NSW (Inspector Smith) v Dubavo Pty Ltd, unreported, CT93/1247-1249, 24 July 1995, Peterson J; Drake Personnel Ltd v WorkCover Authority of NSW (1999) 90 IR 432; per Wright J, President and Walton J Vice-President at 452; further explained in Kennedy-Taylor (NSW) Pty Ltd v WorkCover Authority of NSW (2000) 102 IR 57 at 76-77) concerning the inability of an employer to fail to ensure safety where the risk arises from a matter incapable of being within the employer's knowledge. The prosecution takes the approach that the addition of a load of the order involved here contributed to the risk of injury despite any inherent defect that might be held to have existed in the crane (WorkCover Authority of NSW (Inspector Mulder) v Yass Shire Council [2000] NSWIRComm 57; WorkCover Authority of NSW (Inspector Mulder) v Arbor Products International (Australia) Pty Ltd (2001) 105 IR 81). These were, however, s18 cases involving a different statutory obligation.

59 There is no doubt that the application of the load beyond the nominal rated load at the time of the collapse made a contribution to the collapse. Both Dr Gilmore and Dr Baigent agree with this. However, the application of that higher load, had the crane been designed as they contend it should have been, would not have caused the crane to collapse. Thus it would not have contributed to any risk of collapse in a properly designed crane. I consider the conclusion unavoidable 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.

60 I have found it unnecessary to deal extensively with the question which arose in the evidence concerning the condition of the welds of the bracing of the front legs of the A-frame. Whether the cause of the collapse was a prior break in a welded joint is a question the experts were unable to answer conclusively. In any event, a defective weld seems to me to fall into the same category as the under-design issue dealt with by Dr Gilmore and Dr Baigent. This too was unable to be known, even by the application of some form of field-testing, as Dr Lakeland found.

61 I deal firstly with the charges alleging an inadequacy in supervision, by Leightons and Lindores. The contractual relationship between Leightons and Lindores, so far as it is demonstrated in the evidence, was confined to a letter of tender by Lindores to Leightons for the supply of the crane and crew and a facsimile acceptance by Leightons of that tender. The facsimile refers to an intention to formulate a written contract in the following weeks but no such contract was tendered in evidence. There was thus no mutual document which identified the roles of Leightons and Lindores with respect to supervision.

62 Lindores had a documented safety plan which contained a section particular to the Leightons' Tweed Head site. That section identified under the heading "Management Supervision" the following: Monitoring of work procedures and work methods employed by Leightons to be carried out by Leightons.

Company Supervisor, Mr Len Gillespie, or Mr Paul McDougall to visit site regularly.

63 Leightons' Project Health and Safety Plan for this project identified "cranage" in a detailed risk analysis as involving a severe level of risk but that the probability was unlikely. The strategy and method of control was to require a project health and safety plan or a work method statement to be prepared by the sub-contractor and submitted to Leightons. It provided for Leightons' personnel to ensure that sub-contractors had in place, before commencing work, health and safety plans or work method statements which had been reviewed by Leightons. It set out an exemplar policy which suggested in relation to the site foreman that he would be responsible for those persons under his control and then identified particular roles in that respect. The site foreman was said to be directly accountable to the site supervisor in all health and safety matters. Lindores complied with this requirement by adapting its generally applicable Safety Plan, by including the section specific to the Tweed Heads site.

64 Lindores did not have a person designated as a site foreman. Mr Gillespie performed the role of supervisor of the crane crew by making casual visitations to site. The system adopted relied on the crew to undertake the collection and delivery of loads without supervisory input from Leightons, Leightons only supplying and allocating the work to be done except where an incident might provoke some involvement, issues which Leightons supervisory staff could, and would take up with the crew and if necessary, Lindores' management. This seems to me to have been a conceptually simple and workable allocation of roles. It is emphasised as such when one considers four aspects: 1. The understanding of Leightons that a functioning Markload load limiting device was installed;

2. The evidence that there was no room or opportunity for a supervisor to undertake continuous supervision of the tower crane operator;

3. The objective of the Safety Policy of Lindores as attested to by the Human Relations Manager, Mr Baguley, was to ensure the safe operation of the crane by focusing upon the skill, knowledge and attitude of the crane operators and dogmen; and

4. The evidence that it was ultimately the responsibility of the crane driver to know the capacity of his crane at a given distance, the weight of a particular load and to decide whether or not a particular load will be lifted.

65 There is no evidence of supervisory intervention after the kibble dropped onto the scaffold on 28 November 1996 and Mr Master went off in the direction of the site offices, according to Mr McLaren with the intention of "going to fix it up" - something he (Mr Master) had said was "way too dangerous". However, the evidence of the supervisory staff is that no notification of the incident was made to them. The Leightons' General Foreman on site, Mr Woolaston, said that, if notified, he would have investigated and probably discussed the matter with the crane crew to see if there was a problem with the crane. However, Mr Master did report it to a member of the Sub-Safety Committee, Mr L J Kermond, who in evidence said it was his duty to report it to either Mr Woolaston or the construction foreman Stewart Price, but he did not do so.

66 The nature of some aspects of crane work was developed by Mr Rushton in cross examination of Mr Beashel, who agreed with the following propositions: . there is a significant degree of skill involved in driving a large tower crane;

. there must sometimes be a great degree of trust between dogman and crane driver;

. when the load is out of sight of the driver, he must rely on the dogman 100%;

. precise communication between them is absolutely critical;

. a safe and successful lift is dependent upon the two-man team; . As to the suggestion that there was a failure to inform him of the amount of concrete going into each column, he said: "I mean, if we are going to do six metres, we do the six metres. It really would not make any difference."

67 However, the absence of direct supervision raises the question of what direct supervision might have been applied to a licensed driver conducting normal lifting operations; what were described as "simple tasks" for a crane driver. The operation of the crane was within the purview of the driver only. It was the driver who was responsible to ensure he operated safely, with care for crew and with adherence to weight/distance limits. In the normal course, this system operated satisfactorily. There was within it no room for the interposition of a supervisor, the only evidence on the point being that it would be to introduce an unsafe element to superimpose on the driver another person who would tell him whether or not he could perform a particular lift.

68 If one accepts that the collapse of the crane on 29 November was related to operator error, there is no obvious defect in supervision which, if cured, one can see would have altered the results. The only suggestion which arose in the evidence, was the possibility that a person could have been provided to supervise the loading of the kibble to ensure that the weight was, or would remain, within limits. This is, in my view, a possibility only evident in hindsight. The crane did show by its load gauge and the distance indicator that, at the point of departing the task of pouring column 404, the crane was grossly over the safe load limit at the working distance. The driver then had available to him all the information necessary to avoid the overload situation. His carrying on at that point was an aberrant act which could not have been anticipated.

69 It is, in my view, insufficient to establish a relevant failure to ground the charge to allege an absence of adequate supervision unless it is plainly obvious that supervision of a relevant kind could have been applied. Whether one treats the matter as one resolved in the context of no established failure, or rather as a satisfaction of a s 53 defence, established on the evidence, one arrives at a position where the charges against Leightons regarding supervision either are not proven or must lead to Leightons being acquitted.

70 I conclude the prosecution has not established a relevant failure with respect to supervision in the charges relating to Leightons in matter Nos IRC00/234, 235, 236, and Lindores in 00/239, 244, 246 and 248. That disposes of IRC00/235 and 239, which were confined to the question of supervision. The other charges have other elements to which I shall come.

71 I next turn to consider the allegations in IRC00/240 and 244 concerning the failure by Lindores to provide adequate training and instruction to Messrs Lowther and Timothy Perrett.

72 The particulars of the charges allege that Messrs Lowther and Perrett were placed at risk by the failure to provide such adequate training and instruction to them. The particular which alleges the inadequacy is as follows: (g) Beashel was the main driver of the tower crane. Lowther was the relief driver. Lowther had operated the tower crane the afternoon of the 27th November 1996 and on the day prior to the accident. Other than that experience and two hours of instruction by Beashel sometime in October 1996, Lowther had no other experience operating a Favco STD 1000 tower crane, or any crane fitted with a 64 metre length boom. Perrett also had not previously worked with a Favco STD tower crane fitted with this length boom. Neither Lowther or Perrett had received any formal assessment or training from the defendant before working as part of the tower crane crew.

73 Mr Perrett was a qualified dogman. There was no material in the evidence which could substantiate the proposition that he was in some way inadequately trained and instructed. For example, it has not been suggested in the evidence that a dogman working with a 64 metre boom was in some way needing of further instruction if he had worked with a 50 metre boom, as had Mr Perrett. Mr Perrett had worked as a dogman on site for six weeks with this particular crane prior to the accident on 29 November 1996, without any criticism or apparent incident for which he could be blamed. Mr Perrett did indicate in his evidence that he had not been trained or instructed with respect to maximum SWL's at various distances. He knew the crane could carry only 1.5 tonnes at flatstick; he had been so informed on his first day on site by Mr Beashel. The limits of his knowledge in that respect do not seem to me to establish a relevant failure on the part of Lindores, given that the dogman's role is only advisory in relation to weights; it is a matter for the crane driver to determine the weight by reference to the various sources of information available to him.

74 As for Mr Lowther, the evidence generally establishes two things: that he, while not having driven a crane for five years, was a good operator in the view of a number of witnesses. He was licensed to drive the crane; he was given two opportunities by the principal driver, Mr Beashel, to operate it under the latter's supervision, who saw nothing to be concerned about in his performance; and as Mr D G Crane (of Crane Cranes & Rigging and formerly an employee of Lindores) testified, driving a crane is like riding a bike - the touch is not lost - it takes one to two hours "to get the smooth running of the crane".

75 Mr Baguley expressed the view that the should have been informed Mr Lowther had not operated a crane for seven years and if so it may have meant a reassessment of Mr Lowther. However, he too said it takes about an hour to pick it up, that is, after a lay-off of five years. He said such a gap in time "makes very little difference to (the driver's) operational characteristics because I have been the same way myself, I haven't operated a crane for several years; it takes about an hour to pick it back up".

76 Mr Neumann, a formwork carpenter on site, saw no significant differences between Messrs Beashel and Lowther as to their driving. David John Perrett, a brother of Tim Perrett, was also employed onsite by Lindores as a dogman. He was asked in cross-examination whether in working with Mr Lowther he found him to be an experienced driver and he answered, "Yes, not a problem. No different from Bernie (Beashel)".

77 He also agreed with the proposition that Mr Lowther exhibited the requirements of safely operating the tower crane.

78 Another formwork carpenter, Mr Steven Michael Burgess, observed parts of the incident which occurred on 28 November when the kibble caught the scaffolding and lifted it. As the kibble approached the scaffold, he observed it lowering down and heard the dogman, Mr Gee, call for it to stop. He also then heard, but did not see, the kibble strike the scaffold. He then saw the kibble rise up and described it this way: "When the crane stops to wait or settle, it might only come up 200 mm, just a spring in the jib for the extension of the jib and just settle. All cranes do it."

79 Mr Burgess was not asked anything about his observations otherwise of Mr Lowther's driving or to contrast it with that of Mr Beashel.

80 In the light of this evidence, I find that the prosecution has not established any relevant failure in Lindores with respect to training and instruction of Messrs Lowther and Perrett in IRC00/240 and 244.

81 It is convenient to deal now with one aspect of the charge against Leightons in IRC00/234 which alleges a failure to ensure Messrs Master, Lowther and Perrett received such instruction and information as was necessary for the said persons to carry out the work safely. The particular provided in that respect is that: At the time of the collapse no load radius chart, or information about the amount of concrete that could be lifted in each kibble beyond certain radii without overloading the crane, was made available to either of the defendant's employees or the other workers. The system of work utilised on the day by the tower crane crew and those assisting it created the risk of a mechanical failure of the tower crane due to overloading.

82 The first point to observe is that the three workers concerned in this charge, brought under s 16(1) of the OHS Act, were not employees of Leightons. The second is that this information was not germane to the role of Mr Master, as a concreter, but to the crane crew. At the point Mr Perrett was loading the kibble, it was capable of receiving the 1.4 cubic metres which was available to load. Further, at the point when Mr Lowther was hoisting up from column 404 en route to the other columns, his radius indicator was capable of and was expected to indicate to him whether he exceeded the SWL at maximum radius or flatstick. As Mr Beashel had agreed in cross examination, it was crystal clear at flatstick from the load radius indicator that the maximum load at that point was 1.5 tonnes. Whether or not Mr Lowther knew the volume of concrete he had seems to me to be immaterial given that he had available an indication of the actual weight, through his load gauge, which registered weights over 2 tonnes, and from his radius indicator, the critical element of SWL/distance.

83 I find this element of the charge in IRC00/234 has not been made out.

84 I take the same view with respect to the charge against Leightons in matter No. IRC00/233 which is that on 29 November 1996, Leightons failed to provide adequate instruction and information for the pouring of concrete to the columns by means of kibble to its employees, Mr Taula and its site foreman, Mr Woolaston. The critical particular of the charge is that: (g) Neither Taula or Woolaston had been informed or instructed prior to the pour as to the safe working load capacity of the tower crane, or how to determine the weight of a partially loaded kibble.

85 For the same reasons I have given with respect to the charge in IRC00/234 there has not been demonstrated any failure by Leightons in the context of these two persons. Mr Taula was working as a labourer in the concreting task, positioned on the scaffold awaiting the arrival of the kibble, when the crane collapsed. The SWL of the crane or the determination of the weight of the partially loaded kibble was not a matter within his area of responsibility. It was not demonstrated how any knowledge in him of the matters referred to in the particular could have affected events.

86 Mr Woolaston, although site foreman, was not overseeing the loading or delivery operation by the crane. This matter suffers the same difficulty in the context of Mr Woolaston as for Mr Taula.

87 I now deal with the three charges against Leightons which include allegations of failure to provide a safe system of work for the pouring of concrete, being IRC00/232, 234 and 236. The first two charges relate to 29 November 1996 and the last to the incident on 28 November 1996. Viewed generally, the system of work employing the tower crane was not apparently different from that usually employed. The crane was obtained as earlier described, from Lindores to perform the tasks which it was required to undertake, particularly on November 28 and 29, 1996. That Leightons had on previous occasions utilised a concrete pump to undertake some of the work does not detract from the apparent ability of the tower crane to undertake this work in the way intended. The crane was, as Leightons had been informed by Lindores, through Mr Gillespie, fitted with a functioning Markload load limiter, the effect of which would be to cause the crane to stop if it were overloaded. It also had the load gauge and radius indictor facilities. The system was not inherently faulty or risky. The crane was provided to perform work in the context of a system which was safe in design, providing the crane was not overloaded. The responsibly for ensuring the absence of an overload was that of the crane operator. This was a responsibility which I have found could not be imposed upon by Leightons.

88 One particular provided in the context of charge IRC00/232 is that no work method statement was provided to Taula and Master. There is no substance in this particular. Taula and Master had performed their work on columns over a series of weeks. There is no deficiency demonstrated in the absence of a written statement as to work method. They were well versed and capable in this area.

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.

96 The position in both IRC00/232 and 234 is different. There was, on 29 November 1996, 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 was something which would have been a matter not contributing to risk was the crane structure then designed in accordance with the requirements as dealt with by Dr Gilmore and Dr Baigent. Any contribution to risk arose from the design deficiencies which were then unknown.

97 I now turn to those elements of the charges against Lindores which have not yet been dealt with. In IRC00/244 and 246, one alleged failure relates to the non-provision of a work method statement to Messrs Perrett, Taula and Master on 29 November 1996 and to Messrs McLaren, Gee and Master on 28 November 1996. In each instance the groupings of individuals involved the concreters working on the columns and the receiving dogmen working with them. Again I find this particular of no substance. The evidence establishes that Messrs McLaren and Master discussed the difficulties of working with the large kibble, yet this was the only equipment provided for them on 28 November and it was provided again on 29 November. There is simply no cogency in the proposition that the provision of any written work method statement would have altered the position. Any difficulty arose from the work method adopted rather than the absence of it in writing.

98 The two remaining elements of charge relate to the contention that the crane was not adequately erected and commissioned and that, separately, Lindores failed to make all necessary inquiries to ensure safety prior to increasing the length of the boom of the tower crane.

99 A number of relevant conclusions can be drawn from the evidence. The first is that the extension of the jib from 57.83 m to 64.38 m by adding sections without the stiffening of the legs of the A-frame, exposed the crane, taking the lowest common denominator between Dr Gilmore and Dr Baigent, to the risk that it was 'highly likely' it would collapse. On the evidence, this was done by Lindores under the supervision of Mr Gillespie without having made any real inquiries about suitability of those alterations. There is evidence, from Lucon, that Mr Gillespie regarded the legs as not requiring stiffening with a longer boom although he did suggest that the legs could be stiffened while the crane was under refurbishment by Lucon prior to the hire to Lindores. Counsel for the defendants, in cross-examination of Mr Hughes of Lucon, suggested that he sought to obtain a letter from Mr Gillespie indicating he did not want the A-frame modified because he knew the latter intended to use a 64 m jib. He positively denied this; he said "If it's not required it's fair for me to ask for confirmation of that".

100 The absence of evidence from Mr Gillespie on this point causes me to consider that however odd it may appear, Lucon's pursuit of a written confirmation from Mr Gillespie that he was not seeking to have the legs stiffened, should be accepted on the basis, not that it was covering Lucon's back in the context of an extended boom, but for completeness of record keeping. I do not accept that the evidence established any knowledge in Lucon that Lindores intended to operate crane 633 with the jib extended beyond 57 m overall. There is certainly no express evidence that Lucon was aware of Mr Gillespie's intention to extend the boom and encouraged or allowed him to think that it was safe to do so without stiffening the legs. Lucon executives were aware of an earlier difficulty on the Gold Coast, where the jib collapsed on a tower crane, which caused leg stiffening to be introduced, particularly of crane 634. The modification of crane 634 was carried out by Lindores. The prospect that the Lucon personnel would have permitted the boom to be used on a building site at an extended configuration without stiffening in the light of that experience is so difficult to contemplate that I would require express evidence, properly tested, before I could reach that conclusion.

101 On the evidence, Lindores knew of the modifications made to the A-frame on crane 634, following the collapse of another crane on the Gold Coast. Lindores carried out that modification work, which was done in the context of a similar extension of the jib. Dr Baigent's finding that the component weights of the boom were 0.31 tonnes heavier than the weight assumed when the safe load of the crane was assessed, meaning the crane would have been overstressed if 1.5 tonnes had been lifted at 62 m, raises the question whether Lindores, through the actions of Mr Gillespie, are to be held liable for a contribution to the risk of the collapse of the crane by creating that overstressing. However that conclusion would depend upon an acceptance of the overall design of the crane, including the A-frame, which Dr Baigent found to be grossly deficient. In these circumstances, I consider Lindores cannot be held responsible for a contribution to risk arising from an alleged failure to make necessary inquiries to ensure safety.

102 The particulars of the charge that the crane was not adequately erected and commissioned include that: a) the Markload moment limiting system was not operable; b) the luff pump bias was in a downward direction; c) the pressure setting for the luff pump was at a lower level than recommended by the manufacturer; and d) the graduation shown on the load gauge was not adequate for the work to be performed.

103 However, the Markload allegation has not been established to my satisfaction as having exposed the workers to risk. The reasons for that view are, firstly, that a load limiting device is not required in a crane in NSW; that it can be switched off at the whim of the operator; and that some of the witnesses expressed some concern about the reliability of them in any event. Thus it seems to me necessary to reject the proposition that the absence of an operating Markload, despite being the subject of a misrepresentation to Leightons by Mr Gillespie as to its condition, meant the crane was inadequately commissioned. In coming to this view I have considered the Markload in isolation. However, it is necessary to also consider it in conjunction with the other particular concerning the graduation of the load gauge.

104 Similarly, features concerning the luff pump have not been demonstrated to have actually caused any exposure to risk. Mr Robinson of Crane Safe noted in his testing of the luff pump that, "Manually overriding the stroker using light finger pressure altered bias plus/minus 30 bar". This, as I understood it, was consistent with Mr Beashel's view about the luff pump bias and pressure setting: that they were matters he was simply able to take into account in his exercise of the manual controls.

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.

107 In the result, I find the charges against Leightons not established in IRC00/232, 233, 234 and 235. I find the offence proved in respect of the charge relating to the safe system particular in IRC 00/236.

108 I find the charges not established against Lindores in IRC00/239, 240, 242, 245 and 248. I find the offences proved against Lindores in respect of the charges in IRC00/241, 243, 244 and 246 in respect of the particulars of failure involving the erection and commissioning of the crane.

109 It remains to consider the issue of costs sought by Mr Gillespie in relation to his application to be excused from giving evidence due to his having been prosecuted personally over the events relating to the crane. When the hearing concluded, liberty was granted to the prosecutor to file any written submissions on the merits of the costs application. No such submissions have been filed. Mr Gillespie was a material witness in the case; he was the Lindores supervisor in matters alleging, in part, inadequate supervision. The prosecutor had a clear duty to call him. I consider that he is entitled to an order for costs, but taking into account that duty in the prosecutor. I order that the prosecutor pay his costs as assessed, as to 50% thereof.

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.