Industrial Relations Commission of New South Wales in Court Session CITATION : WorkCover v Grocon Constructions Pty Ltd [2001] NSWIRComm 150 PROSECUTOR WorkCover Authority of New South Wales (Inspector Tyler) PARTIES : DEFENDANT Grocon Constructions Pty Ltd FILE NUMBER: IRC6074 of 1999 CORAM: Peterson J CATCHWORDS : Occupational health and safety - prosecution under s15(1) - crane lifting load - load catching upon metal facade support structure - components falling from load - fatal injury - plea of guilty - nature and quality of the offence - objective seriousness - system in conformity with WorkCover's guidelines - performed by an experienced and qualified person - dogman - tag lines - lower half of the full scale of penalty - discount - convicted and penalty imposed. LEGISLATION CITED : Occupational Health and Safety Act 1983 CASES CITED : Lawrenson Diecasting Pty Ltd v Workcover Authority of NSW (Inspector Ch'ng) (1999) 90 IR 464 Haynes v James Glass and Aluminium Pty Limited (unreported, CT91/772-775, 20 May 1994) HEARING DATES: 03/01/2001 DATE OF JUDGMENT: 07/05/2001 PROSECUTOR Mr D J Brezniak of counsel SOLICITOR Legal Services Branch WorkCover Authority of NSW SYDNEY. LEGAL REPRESENTATIVES: DEFENDANT Mr P R Callaghan SC SOLICITOR Colin Biggers & Paisley SYDNEY. JUDGMENT: - 1 - INDUSTRIAL RELATIONS COMMISSION OF NEW SOUTH WALES IN COURT SESSION CORAM: PETERSON J DATE: 5 JULY 2001 Matter No. IRC6074 of 1999 WORKCOVER AUTHORITY OF NSW (INSPECTOR TYLER) v GROCON CONSTRUCTIONS PTY LTD Prosecution under s15(1) of the Occupational Health and Safety Act 1983. JUDGMENT 1 Inspector Ian Tyler on behalf of the WorkCover Authority of New South Wales has prosecuted Grocon Constructions Pty Ltd in respect of a breach of s15(1) of the Occupational Health and Safety Act 1983 ('the Act'). 2 Section 15(1) of the Act imposes a duty upon an employer to ensure the health, safety and welfare at work of its employees. The present matter concerns the exposure to risk of injury of an employee of the defendant, Guisseppe Paino, who sustained fatal injuries on 13 November 1997 when components fell from a load being hoisted by a crane, when the components became loose following collision between the load and a metal structure attached to the building. 3 The defendant has pleaded guilty to the charge, the agreed facts of which include the following: 5. At all material times and on 13 November 1997 (the said date), the Defendant employed Mr Guisseppe Paino aged 62 years old, as a "Dogman" at the said construction site. The said construction site is bounded by George Street, King Street and Pitt Street. 6. On the said date, Paino was standing in the vicinity of the crane loading zone at the said site which was located in King Street. The Tower crane was being driven by Mr Anthony Hiriaki an employee of Grocon (NSW) Pty Ltd. Mr Anthony Pinner employed by the Defendant as a Crane Coordinator was also in King Street, assisting in the supervision and cranage of loads. 7. On the said date, at approximately 1:00pm Paino was installing slings under a load of Jump formwork shutters which were on a truck owned by "Dolso Fastform (AC) Pty Ltd". Paino used four chain slings in conjunction with two (2) nylon flat webbing slings to "BASKET HITCH" or cradle the load. It appeared that Paino experienced difficulty inserting the 100mm steel angle plates prior to the lifting of the load. This is confirmed by Mr Manuel Marques the General Foreman employed by the Defendant, who also assisted in the installing of "angle irons". After testing the load weight Paino apparently completed installing the "angle irons" and directed the load to be lifted upwards by the Tower Crane operator Hiriaki. 8. The load being lifted consisted of a combination of varying size components with the smaller components stacked onto larger one piece sections at the base of the load. As the load was being lifted it twisted laterally and tipped upwards as it collided with either the horizontal steel beam of the frame of a facade retention system or the crane load platform located above the frame of the facade retention system. The facade retention system and the crane load platform above were located in the vicinity of the designated lift area in King Street and was approximately 7-10 metres above the street level. 9. As a result thereof, components of the load became loose and shifted as the loaded tilted. Loose components then fell from the load from a height of between 7 to 10 metres and struck Paino who was standing in King Street, resulting in his death. 10. At the time the load fell into King Street, Paino whose job it was to be in close proximity to the loading bay at specific times, was in the immediate area. 11. Investigations in the accident revealed that the project construction had commenced approximately in November 1996. A company, Dolso Fastform (AC) Pty Ltd had a contract with Grocon Pty Ltd for the supply of and erection of formwork and falsework for the temporary support of the concrete installation on the project. 12. Prior to the commencement of construction of the tower, the demolition in part and/or whole of the existing "Coles Store" and associated shops was undertaken by a company called Delta Demolitions Pty Ltd. Two structures were only in part demolished with the intention of the remaining facade to be kept and incorporated into the new development. 13. As is common in façade retention, the system was designed (by Meinhardt Engineering) and installed to support the remaining building facade and also incorporate the Overhead Protective Structure (which is designed for the protection of the public on the footpath). This was erected by a company called E M Miller Pty Ltd. Grocon Pty Ltd assumed control of the site and Overhead Protective Structure and facade retention system in November 1996. 14. The combined Facade Retention System and Overhead Protective Structure at the said site was constructed out of Steel Beams and columns in open framework over the existing footpath. The combined Facade Retention System and Overhead Protective Structure was of a temporary nature and were to be removed at the completion of the new construction work once it had been incorporated in the building under construction. 15. The designated lifting area for the site was in King Street, Sydney and was adjacent to the combined Facade Retention System and Overhead Protective Structure. The Construction Zone was set aside in the curbside lane for the loading and unloading of trucks. The loading and unloading of trucks were carried out by the "Tower Crane" located on top of the structure under construction. The "Tower Crane" was supplied and owned by Grocon Pty Ltd and the crane driver was Hiriaki. 16. To load and unload, Hiriaki the crane driver had to operate mostly without direct visual sight of the load and relied upon the Dogmen to guide him by instructions generally via two-way radio. In respect of the load, which fell and caused the death of Paino, Hiriaki had no view of the King Street elevation around the area of the combined Facade Rentention system and Overhead Protective Structure. This was due to the position of the crane in relation to the building structure, which caused his view to be obstructed, by the crane loading zone. This is common in projects such as this one and the persons involved in the use and supervision of cranes and loading procedures are required to be trained and certified accordingly. 17. Investigations further revealed that during the lifting process it was customary for the dogman to watch the load and direct the crane driver as appropriate when the load nears obstacles. This is the course of action that Paino adopted at the time of the accident and is generally regarded a normal and safe procedure. 19. Inspector Tyler concluded that the accident occurred as a result of the following factors: (a) During lifting of the load of formwork the load twisted catching under the steel beam of the combined Facade Retention System and Overhead Protective Structure at a height of about 7 to 10 metres above the roadway or alternatively the crane load platform located above it. This caused the load to tilt, this allowing the unsecured section of the load to slide off causing it to fall to the ground. (b) Paino was in control of the load being lifted but had apparently looked away from the load just prior to the impact with the combined Facade Retention System and Overhead Protective Structure or alternatively the load platform located above it. Thus he was not able to direct the crane driver to cease hoisting the load. (c) The combined Facade Retention System and Overhead Protective Structure consisting of Open frame arrangement which was constructed to the City of Sydney's specifications and WorkCover Code of Practice provides a potential hazard for the catching of loads being craned. Part of the framework is covered with advertising signs which show scratch marks possibly from impacts with the crane loads. (d) The load could have been controlled by a tag line to guide it clear of obstructions as it was being lifted. The tag line procedure would however, have required careful management to be effective and its use may itself have provided a potentially hazardous practice when used on crane loads on a high rise project such as this. (e) The load being lifted consisted of a wide heavy load comprising many varying size components. The load was "basket slung" (cradle lifted) in accordance with the NSW WorkCover authority Guidelines for Dogmen and Crane Chasers (10th Edition Revised 1986) and not in a "choke hitch" ie secured in a noose form.) 20. Following the accident, the Dogger Work Procedure in place at the said site was reviewed by Grocon Pty Ltd and a new paragraph 3L under the heading of RESPONSIBILITY was inserted as follows: "Loads should be guided by means of tag lines until they are clear of the loading bay hoarding or any other immediate obstruction. Under SCOPE at para.2 it was stated that "This procedure covers all doggers working for GROCON". 4 In addition to those matters with which the agreed statement was concerned, the Inspector was called to give evidence. He made three points of significance. The first was that the tag line system could have alleviated the accident because of its allowing some control of the load. The second was that the use of additional wooden boards upon the metal structure could have prevented the load from catching under the framework, thereby avoiding the accident. The third point was that after the load had caught under the structure the components of the lift fell away leaving the slings intact. Had the slings been used to secure and/or support the load during the lift the accident would not have occurred. 5 The primary indicator of penalty in a matter such as this is the nature and quality of the offence as measured by an examination of what the employer either did or failed to do which established the causal connection between the employer and the events the subject of the offence. In the present matter those matters are capable of being extracted from the agreed statement of facts as follows: (i) The lift was in accordance with the WorkCover guidelines for lifting by crane; (ii) The method employed is commonly regarded as an appropriate and safe method; (iii) The dogman was licensed and experienced in the work; (iv) The load could have been controlled by a tag line (a line capable of being pulled by hand to prevent the twisting of a load on the crane's cable) to guide it clear of obstructions. This would have required careful management and may itself have provided a potentially hazardous practice; (v) The dogman had apparently looked away from the load just prior to the impact with the steel structure causing the tipping of the load. 6 As against those matters the company did, subsequent to the accident, introduce a new work procedure in these terms: "Loads should be guided by means of tag lines until they are clear of the loading bay hording or any other immediate obstruction". 7 The Company also reacted to the accident by reconstituting its occupational health and safety control. Previously the site union delegate chaired the OHS committee, which met weekly, toured the site twice a week and utilised dedicated employees to attend to matters raised by it. The Company has now added to its representative on that committee a tasked occupational health and safety site person and a State occupational health and safety manager. 8 In Lawrenson Diecasting Pty Ltd v Workcover Authority of NSW (Inspector Ch'ng) (1999) 90 IR 464 the Full Bench said at p.474: However, in our view, it is important to reiterate that the primary factor to be considered when a judicial officer is determining the appropriate sentence to impose is the objective seriousness of the offence charged. In case of prosecutions under the OH&S Act, this proposition has often been expressed by saying that the "true measure of penalty lies in the nature and quality of the offence": see Independent Cargo & Wool Services Pty Ltd v Mingare (unreported, Fisher CJ, Glynn and Peterson JJ, CT92/1041, 10 March 1994) at 4; Inspector Hannah v Wonar Pty Ltd (at 9); Inspector Mauger v P Ward Civil Engineering Pty Limited (unreported, Fisher CJ, CT94/1212, 21 December 1995) at 8-9. It has been observed on a number of occasions that subjective factors which mitigate the seriousness of the offence or exculpate the accused must be secondary to consideration of the nature and quality of the offence. In WorkCover Authority of NSW v Waugh (1995) 59 IR 89 at 96, the Full Bench of the then Industrial Court cited with approval a passage from the judgment of Fisher CJ in Haynes v James Glass and Aluminium Pty Limited (unreported, CT91/772-775, 20 May 1994) where his Honour said: "I consider that the primary factors to be looked at in relation to penalty in matters such as this are the nature and quality of complaint made out. These need not necessarily reflect death or injury actually occurring as a result of the failures, though all too commonly those circumstances are met with. It is plain from the history of this legislation that Parliament has reflected its increasing concern at the lack of safety in some aspects of industrial operation by markedly restating the duty of care and the penalties that were provided for breaches of the industrial Occupational Health and Safety Act, 1983. Again in 1991 by amendment penalties in relation to a corporation were raised from $100,000 to $250,000 and in the case of individuals, from $10,000 to $25,000. While previous good industrial citizenship and the absence of prior convictions are proper considerations, their importance lies well behind the two primary aspects of the matter, namely the nature and quality of the offence and the clear policy of the Act in relation to the establishment of safe standards and the protection of the workforce." Later the Full Bench also said: As we have observed, the primary factor to look at in relation to the penalty to be imposed is the objective seriousness of the offence. Particularly in cases involving a serious breach of the OH&S Act, subjective factors, such as a plea of guilty, co-operation with the investigation and subsequent measures taken to improve safety, must play a subsidiary role in the determination of penalty to the gravity of the offence itself. While the Court must keep in mind not only facts which establish the seriousness of the offence, but also those which tend to mitigate that seriousness or exculpate the offender (see Camilleri's Stock Feeds Pty Ltd v Environmental Protection Authority (1993) 32 NSWLR 683 at 698 per Kirby P), the presence of the subjective factors referred to should not be permitted to produce a sentence which fails to adequately reflect the seriousness of the offence. 9 The cases which are reviewed in Lawrenson repeatedly indicate that the determinant of penalty, before a consideration of subjective features, is "the nature and quality" or the "objective seriousness" of the offence. The offence itself is not, as Fisher CJ noted in Haynes v James Glass and Aluminium Pty Limited (unreported, CT91/772-775, 20 May 1994), a reflection of the tragedy of a death at work, but rather of the failure by the employer to ensure safety and the means or omissions by which that failure occurred. 10 A consideration of that question is often a most difficult task in the context of legislation which imposes absolute liability for the offence. The defendant in these proceedings has accepted that liability by its plea of guilty. The prosecutor for its part has urged upon the court the view that the nature and quality of the offence involved is of the highest order. I am unable to see how this could be so. It may be readily recognised that an offence of the highest order is likely to involve a case of the worst features, of a reprehensible or even outrageous kind. The offence involved in the present matter cannot possibly fall within such a category. 11 Here the work was being undertaken according to a system which was in conformity with WorkCover's guidelines; it was being performed by an experienced and qualified person; it was being undertaken by a building company with very considerable experience, having constructed, among its building jobs, the Governor Macquarie Tower and the Chifley Tower in Sydney and having employed over the five years up to the date of the accident in November 1997, one thousand persons on those projects without any conviction under the OHS Act. The metal framework constructed to support the facade of the building was designed by mechanical engineers, approved by the Sydney City Council and erected during the course of the demolition of the old Coles building on the site. It protected the pedestrian traffic along the footpath and supported the building facade which was to be retained. It was inherited by the defendant. The metal framework did not present a flat and even face to the street, up which loads could be lifted by crane without catching on the metal framework. However, after the occurrence of the events here no such timber fascia was installed by the defendant or required to be installed by the prosecutor. Work continued thereafter, I infer from the agreed facts, merely with the addition of tag lines, which themselves are recognised by those facts to involve an inherent safety risk. This variation in procedure was made in conformity with WorkCover requirements. 12 With all of these features, this offence, viewed objectively, is properly to be placed in the lower half of the full scale of penalty. Taking into account the plea of guilty, not entered late, the absence of any convictions and the other subjective features of the matter I have mentioned, I would assess penalty, after a discount of thirty per cent, at $105,000. 13 The defendant is convicted and fined the sum of $105,000 with a moiety of penalty and costs to the WorkCover Authority. 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.