Industrial Court of New South Wales CITATION: Inspector Hugh Corner v Hastings Hire Pty Ltd and Inspector Corner v John Avalon Barrie Shevlin. [2008] NSWIRComm 63 PROSECUTOR: Inspector Hugh Corner PARTIES: DEFENDANTS: Hastings Equipment Hire Pty Ltd and John Avalon Barrie Shevlin FILE NUMBER(S): IRC 1249 and 1250 of 2007 CORAM: Haylen J CATCHWORDS: Occupational Health and Safety Act 2000 - s 10(2) - s 26(1) - dry hire plant equipment business - sole director working for business - no employees engaged - elevated work platform hired for purpose of taking photographs for promotional material - failure to supply appropriate safety belts or safety harnesses - failure to undertake adequate risk assessment - failure to conduct pre-start checks for hiring equipment - failure to insist on wearing of safety belt or safety harness - client using metal extension measuring tape to calculate distance from ground whilst on work platform at height - measuring tape swept up by wind into nearby power lines - electric shock to two people on work platform - person falls from work platform and fatally injured - pleas of guilty entered by corporation and sole director - serious breach established - general and specific deterrence - subjective factors considered - first offences - early pleas - good record established - penalties imposed HEARING DATES: 28 March 2008 DATE OF JUDGMENT: 3 April 2008 PROSECUTOR: Mr B Docking of counsel SOLICITORS: Legal Group WorkCover Authority of New South Wales LEGAL REPRESENTATIVES: DEFENDANTS: Mr B Gillroy, Solicitor SOLICITORS: GWM Lawyers JUDGMENT: - 18 - INDUSTRIAL COURT OF NEW SOUTH WALES CORAM: HAYLEN J 3 April 2008 Matter No IRC 1249 of 2007 Inspector Hugh Corner v Hastings Equipment Hire Pty Ltd. Prosecution under s 10(2) of the Occupational Health and Safety Act 2000 Matter No IRC 1250 of 2007 Inspector Hugh Corner v John Avalon Barrie Shevlin Prosecution under s 10(2) and s 26 of the Occupational Health and Safety Act 2000 JUDGMENT [2008] NSWIRComm 63 1 Hastings Equipment Hire Pty Ltd ("Hastings") has entered a plea of guilty to a breach of s 10(2) of the Occupational Health and Safety Act 2000 and the company's sole director, John Shevlin, has also entered a plea of guilty to a breach of s 10(2) by operation of s 26(1) of the Act. Mr Shevlin and his company offered for "dry hire" scissors and boom lifts to a variety of businesses in the Port Macquarie area, mainly for construction purposes. As a "dry hire" operation, the equipment was hired without an operator usually for use by a variety of trades such as painters, plumbers and others involved in the construction industry although at times, the equipment would be used for tree-lopping and a variety of other such purposes. The usual practice in this hiring arrangement was that Mr Shevlin would give instructions to those hiring the equipment and those instructions would be given at the premises of Hastings: when instruction was completed, the hirer would take the equipment and return it at the completion of the hire period. Prior to operating this business, Mr Shevlin had considerable experience with a variety of lifting devices and elevated work platforms before striking out in his own business in 2002. 2 On 27 August 2003, an elevated work platform ("EWP") was hired out by Hastings in circumstances that were a little out of the ordinary arrangements that the company usually adopted. The EWP was hired by a director of a company proposing a development on Pacific Drive, Port Macquarie. It was proposed that photographs would be taken from the EWP at a height representing the first, second and third floor level of the proposed development. In furtherance of that pursuit, Mr Paul Stack, a director of Veredo Pty Ltd, together with Mr John Walsh, an architect, and Mr Lachlan Miles, a Draughtsman, attended the site. Because the hirers did not possess a vehicle suitable for towing the EWP to the site an arrangement was made for Mr Shevlin to bring the EWP to the site and to instruct the hirers in the use of the equipment at the site. Although this was not the usual hiring method, Mr Shevlin agreed to bring the EWP to the nominated site and while waiting for the group to arrive, occupied his time by setting up the EWP and ensuring its stability although that was not part of his duties or the requirements of the hiring arrangement. In the course of using the EWP, both Mr Shevlin and Mr Walsh came to be in the enclosed bucket of the EWP when it was at a considerable height from the ground. Mr Walsh had been using a metal tape measure to check the height from the ground and to approximate the various floor levels of the proposed development when windy conditions caused the length of tape to fly around the EWP and ultimately come into contact with nearby live electric power lines. Both Mr Shevlin and Mr Walsh received an electric shock but Mr Walsh fell from the work bucket and also received serious head injuries. Although there was some conjecture as to whether the fall or the electric shock was the direct cause, Mr Walsh died as a result of this accident. 3 Following the Coroner's Inquest, Inspector Corner commenced these proceedings alleging a breach s 10(2) of the Occupational Health and Safety Act, 2000. The particulars of the charge in each case were: the failure of the defendant to undertake an adequate risk assessment in failing to adequately identify or assess the risk to health of the absence of safety belts with shoulder straps or safety harnesses in the workbox of the EWP; the failure to provide with the EWP, safety belts and shoulder straps or safety harnesses that were needed to operate the plant safely; a failure, in pre-start checks on the ground, to instruct, inform and insist that safety belts with shoulder straps or safety harnesses must be used by each person who is to be elevated in the workbox of the EWP: and, a failure to prevent Mr Walsh and Mr Shevlin ascending in the workbox of the EWP unless they wore safety belts with shoulder straps or safety harnesses that were attached to a suitable anchor point provided for that purposes. On the second occasion that the matters were listed before the Court, both defendants entered pleas of guilty. This judgment deals with the evidence and submissions on sentence. 4 The prosecutor tendered the following documents: (a) an Agreed Statement of Facts annexing the charges particularised against each defendant (that document appears as an Annexure to this judgment); (b) an extract of the transcript of evidence given by Stephen Hodges to the Coronial Inquest and a statement supplied by Stephen Hodges to the WorkCover Authority; (c) a folder containing: a prior convictions report (indicating that both defendants had no prior convictions); an ASIC search; a statement by Inspector Corner; a factual inspection report prepared by Inspector Corner; 23 photographs taken by Inspector Corner of the accident scene and the EWP; a diagram and specifications of the EWP workbox; a prohibition notice issued on 27 August 2003; a JLG Industries Machine Delivery/Relocation Docket Manual Machine Inspection; an extract from the NCIS (WorkCover Certification) data base in respect of Mr Shevlin's operator certification; Australian Standard, Cranes - Safe Use Part 10: Elevating work platforms; an extract from AS/NZS 1891.1: 1995 (Australian/New Zealand Standard on Industrial fall - arrest systems and devices, Part 1: Safety belts and harnesses; an EWP safety check and routine maintenance log book; a Country Energy memorandum in relation to the influence of magnetic fields, dated 15 September 2003; an Electricity Association of New South Wales Interim Guide for operating cranes and plant in proximity to overhead powerlines, dated September 2001; a WorkCover National Certificate of Competency - Assessment Instrument to Operate Elevating Work Platform, dated June 1995; a WorkCover Fact Sheet 2001: "Plant Hire and Lease - What Suppliers Must Know; and a WorkCover Guide 2001: Plant, and (d) an extract from the transcript of evidence given by Lachlan Miles to the Coronial Inquest and a statement provided by Lachlan Miles to the WorkCover Authority in September 2003. 5 The evidence for the defendants comprised of a lengthy affidavit sworn by Mr Shevlin with numerous annexures, Associate Professor's Hilton's report dated May 2005 regarding an Inquest into the death of John Walsh and a coloured photograph of the work bucket. It was common ground that the maximum penalty faced by Hastings for this breach was $550,000 and that the maximum penalty that Mr Shevlin faced as a director was $55,000. 6 In his affidavit, Mr Shevlin firstly dealt with the statement that he made to the WorkCover Authority in September 2003 and then described the circumstances when he arrived at the site. He had met Mr Stack and was informed that the architect had not arrived: he was proposing to take photographs at different elevations equivalent the floor height of a proposed building so as to provide display photography showing the potential views. There was discussion about positioning the platform and Mr Shevlin took steps to make sure that it was positioned a sufficient distance away from overhead power lines to eliminate the platform contacting or becoming entangled with the power lines. Mr Shevlin, in consultation, chose an appropriate location and set up the EWP, stabilising it with the use of wooden chocks. The EWP was resting on its metal outriggers and the tyres were fractionally elevated from the ground and not weight bearing. Prior to the arrival of Mr Walsh, Mr Shevlin informed Mr Miles and Mr Stack that the EWP had been set up, that there was a potential danger with the overhead electric wires being close by but it had been positioned at a safe distance from those wires but nevertheless, care should be taken. He gave some instructions about moving the EWP up and down but not from side to side and told the men that the machine had been fully checked and was in good mechanical condition. He had taken possession of this EWP approximately one month earlier and it was on a pre-purchase loan. Mr Shevlin provided a 30 metre length tape measure at the request of Mr Stack and positioned it in a corner of the platform, diagonally opposite the deadman's switch which was located under the operation panel of the EWP. 7 When Mr Walsh arrived he appeared to be in a hurry and was eager to get on with the task. Mr Walsh rushed to the work platform speaking briefly to Mr Stack and quickly mounted the platform. Mr Shevlin stopped Mr Stack entering the platform with Mr Walsh as he needed to instruct them both on the operation of the EWP but Mr Walsh had assumed a position above the deadman's switch and immediately in front of the controls. Mr Shevlin got into the EWP and started to provide instructions to Mr Walsh about movement of the platform, explaining the process to him and the fact that he did not need to move it from left to right and how he could obtain the position he required for the photographs to be taken. It appeared to Mr Shevlin that Mr Walsh had an understanding of the operation of the machine and Mr Walsh raised the platform to a height of approximately 2 metres or a little higher at which point Mr Shevlin requested that he stop the EWP because he realised there were no safety harnesses in the machine. It was Mr Shevlin's intention to arrange for the delivery of the necessary harnesses or to return to the company premises and obtain the harnesses for use at this site. Mr Shevlin had enquired about Mr Walsh's weight as the maximum load for the EWP was 215 kilograms and Mr Walsh was a large man and there were two people in the enclosed bucket. 8 As Mr Shevlin was asking Mr Walsh to return to the ground so he could obtain the harnesses, Mr Shevlin received a call on his mobile telephone and decided to take what was a work related call. He became focused on that call and arranging a job for the following day and although it was a short call, he turned some 80° to 90° to his left whilst in the platform. By the time he re-focused at the end of the telephone call, the platform was facing the sea and was at a much greater height. Mr Walsh was then yelling at the people below and swearing at them to get hold of the tape. Mr Shevlin looked down from the bucket and saw the tape fluttering below the EWP and could see that the platform was now raised seven to eight metres, or even higher, above ground level. Mr Stack and Mr Miles were approximately five or six metres away from the base of the platform and appeared to be in conversation and did not respond to the calls about grabbing hold of the tape. 9 Mr Shevlin then spoke to Mr Walsh asking what they were doing there and instructed him to get them down, repeating that he had previously asked to be returned to the ground. Within a few seconds, (while Mr Walsh was in an agitated state), the tape fluttered in the wind and was not secured by Mr Stack and Mr Miles; Mr Shevlin then observed the tape lift off the ground, rise into the sky while being carried by the wind and saw it come into contact with the power lines. He yelled out to Mr Walsh to drop the tape and then recalled receiving a firm jolt and jar and observed sparks as he watched the tape touch the power lines. Mr Shevlin saw sparks coming off the work platform and recalled feeling a jolting and painful sensation, a shuddering and a thundering sensation through his body and then saw Mr Walsh standing, looking to the east shuddering and trembling. Mr Walsh appeared to be holding on to the tape measure and shuddering and then seemed to fall backwards within the work platform, collapsing into a semi-squatting position. His back seemed to arch as he did this and it appeared that, arched in his way, he slid under the sliding entrance gateway to the EWP and fell backwards out of the platform to the ground. Mr Shevlin believed that he briefly lost consciousness and had no recollection of how the work platform was lowered to the ground and did not recall how he got out of the platform. He stayed at the site for some time but could not recall what he said to people at that time. In his oral evidence he said that, although he had some loss of memory of the incident, he was sure about his conversation with Mr Walsh and directing him to bring them down to the ground so that he could obtain the harnesses. 10 While Mr Shevlin accepted responsibility for not having the harnesses available and not performing the checklist as he would normally do prior to making the EWP available for use by the hirer, he thought there were a number of contributing factors to the accident including the unnecessary pace of Mr Walsh, the failure of the other two men to secure the tape and Mr Walsh's determination to raise the platform rather than to bring it to ground as directed by Mr Shevlin. Although referring to these matters, Mr Shevlin, especially in his oral evidence, expressed his contrition for this accident and frankly accepted his responsibility for it and expressed his sympathy for the loss suffered by Mr Walsh's family. Mr Shevlin also pointed out that he too suffered a severe electric shock and on review of the situation now, could not understand why he was not more seriously injured. Since the accident, Mr Shevlin stated that it was now mandatory that telephones were not to be used and he would not use a mobile telephone while on a EWP. He strongly recommended that all persons utilising the EWP ensure that mobile telephones and similar distracting devices were kept outside the work platform so that they could focus on the job. He had also ensured that, since the accident, all harnesses were appropriately pre-fitted to the EWP. He had constructed a plastic holding device where the harnesses were restrained inside a tube and left on the work platform at all times so as to ensure that there was no repeat of the incident. 11 Mr Shevlin gave evidence as to his usual procedure at the company site and stated that, if normal procedures had been followed, the EWP would not have been hired without harnesses: it was because of the unusual way in which this hire came about that his normal practice was not followed. His normal practice was further disturbed by the rush and haste of Mr Walsh once he arrived. 12 Mr Shevlin gave details about his personal history noting that he was now nearly 64 years old, having arrived in Australia at the age of 23. He spoke of his three children, his divorce and his current partner and how he had few outside interests, spending most of his time with his work. He spoke of his commitment to safety and how it had developed over a number of years, including during his military service and while engaged in a managerial position on the large scale construction project controlled by the Darling Harbour Construction Authority. He had been a member of the Safety Committee and stated that he had been responsible for assisting in the introduction of a large number of safety measures in that large scale works. He traced his business history noting that he had some 30 years' experience with various types of machinery but especially cranes and elevated work platforms. In 1986, he took up the position of sales and servicing manager for JLG Industries Australia, a major American manufacturer. That company manufactured various lifting devices and elevated work platforms and manufactured those in a variety of places, including Australia. That company was based in Port Macquarie and ultimately Mr Shevlin's responsibility extended to the manufacturing function and the workshop operations. The manufacturing operation involved in excess of 60 employees and continued until 1992 when the Australian operation was closed down and his employment terminated. 13 Between 1992 and 2001, Mr Shevlin was involved in a variety of work being self-employed and working as a consultant to other lifting and construction companies. During this period he was actively involved in the elevated work platform section of the industry which was rapidly growing. In 2001, he was providing technical assistance and consultancy services to businesses in the Port Macquarie area before setting up Hastings in 2002 to provide "dry hire" of scissor and boom lifts to a variety of businesses although mainly those engaged in the construction industry. Mr Shevlin had also been involved in providing extensive training programmes, being fully qualified and ticketed in a variety of lifting devices. He had maintained a WorkCover approved training facility for the purposes of educating the construction industry in the use of various lifting devices. It was noted that the company, Hastings Equipment Hire, had never employed anyone and was a business that was run exclusively by Mr Shevlin as a working director. Mr Shevlin also produced references from prominent people in industry who spoke well of his personal attributes including his safety consciousness and the good reputation he had established over a long period of participation in the industry. 14 As earlier indicated, statements and transcript of evidence given to the Coroner were also tendered relating to the issue of who was actually in control of the operation of the EWP at the time of the accident. Mr Shevlin's evidence in these proceedings (on legal advice, he did not give evidence in the Coroner's Inquest although he stated his desire to do so) was that from the time that they got into the workbox of the EWP, Mr Walsh had assumed operation of the controls. In oral evidence, Mr Shevlin stated that, in the normal course of giving instruction in a dry-hire, he would give an outline about the dangers associated with the use of such an EWP and would then place the hirer at the control panel to better instruct them on the operation of the EWP. 15 Before the Coroner, Mr Stephen Hodges said that he had the EWP under observation for some little time as he was returning from lunch and had become concerned about the way in which it was being operated. He was a ticketed rigger and scaffolder and had been trained to use this type of lifting device. It was his evidence that the person he understood to be Mr Shevlin was operating the machine and that was a firmly held view. Mr Walsh was not operating the platform but was hanging from it, with the tape. Mr Hodges had also given a statement to Inspector Corner to the same or similar effect. Mr Lachlan Miles, the Draughtsman who had attended the site with Mr Stack and Mr Walsh, also gave a statement to Inspector Corner and gave evidence in the Coroner's Inquest. Mr Miles had looked up at the EWP and had seen Mr Walsh fall on to the deck causing quite a jolt and then after approximately ten seconds, the upper half of his body cantilevered horizontally out of the deck of the EWP and he fell to the concrete below. Mr Miles said in this statement that the "operator" was operating the EWP and that appeared to be a reference to Mr Shevlin. Before the Coroner, Mr Miles said that he observed Mr Shevlin operating the EWP, not Mr Walsh. However, in cross-examination he placed Mr Shevlin in a position that suggested that he was not operating the platform. DELIBERATION 16 There was little debate about the objective seriousness of this accident, although the defendants firmly placed the incident as occurring in circumstances where Mr Walsh had taken control of the EWP too quickly and had not obeyed Mr Shevlin's direction that it be returned to the ground so he could obtain the necessary harnesses. The defendants' submissions seem to emphasise that, absent the tragic death of Mr Walsh, this would be an offence of much lower gravity but that submission ignores the long held approach of the Court that to focus upon the accident rather than the particulars of the alleged breach and risk to safety is to seriously misunderstand the purpose and reach of the Act with its emphasis on ensuring safety in the workplace. 17 The evidence shows that there were a number of documents and standards that laid down the necessity for this class of lifting platform to be operated only with the use of harnesses. There were WorkCover documents particularly directed to hiring operations such as Mr Shevlin's business and with his long experience in this industry, he was well aware and frankly accepted that he understood harnesses were required while working in an EWP. He emphasised that it was his practice to go through his checklist and that included ensuring that the harnesses were in good order and were made available for hirers with instructions as to their proper use. It was therefore entirely foreseeable that, if persons were allowed to operate one of these lifting devices with a capacity to reach working heights in the order of 11 metres, that there was a real risk that they could fall and seriously injure themselves unless secured by a proper and effective harness. On any consideration of the material, this was a serious offence. 18 Mr Shevlin spoke of his history of safe practice, his long history in this particular industry, his reputation and his usual practice and how that practice had been disrupted on the day of the accident. While there is a good deal of force in that evidence and supporting submissions, nevertheless, it is also true that Mr Shevlin was at the site for some 20 to 30 minutes, was then unrushed before Mr Walsh arrived, had time to set up and secure the work platform but in this time had not looked at the checklist (which was contained within a plastic pocket attached to the work platform) nor had it occurred to him that the harnesses were not at the site. This is the thrust of the particulars pursued by the prosecutor and they are the particulars that both defendants have accepted in entering their pleas of guilty. Those circumstances confirm the seriousness of the offence. 19 Having regard to the particulars to which both defendants entered their plea of guilty, it is difficult to ascertain the significance of establishing whether Mr Walsh or Mr Shevlin was operating the platform. The evidence is, in any event, unsatisfactory with Mr Shevlin giving evidence in these proceedings but not giving evidence before the Coroner and two witnesses giving a potentially different account to the Coroner: Mr Miles placed Mr Walsh in a position from which he could not operate the platform and placed Mr Shevlin in a position where he could operate the platform. While Mr Shevlin accepts that he briefly lost consciousness after receiving an electric shock, he asserts that his recollection of his conversation with Mr Walsh is clear in his memory. There is a possibility that his account of all the events in the workbox are not accurate but have been affected by the accident. Given the state of the evidence and the inability of the defendants to identify how such a finding would affect the particulars of the charge or operate in mitigation of penalty, the Court is not prepared to make any finding as to who it was that was operating the platform on this day. 20 There was no defence submission contesting the prosecutor's position that, in this case, both general and specific deterrence were to feature in the setting of an appropriate penalty. Mr Shevlin's evidence recognised the growth of the elevated work platform industry and its wide use and this particular incident demonstrates the multitude of ways in which a usually safe device with a normally safe system of operation can be so quickly brought undone and pose the most serious risk to those working from such platforms. Both defendants continue to operate in this industry and it is therefore appropriate that regard be paid to general and specific deterrence. 21 In relation to subjective factors, a number of important aspects were readily conceded by the prosecutor. It was accepted that there was an early guilty plea entered by each defendant and, importantly, there was full co-operation with the investigation of the WorkCover Authority. In those circumstances there will be a discount of 25 per cent in recognition of the early plea and the benefits obtained by that action. It is also significant that both defendants are first offenders and they are entitled to have that fact taken into consideration in mitigation of the penalty. While the corporate defendant has a quite recent history, being established in 2002 and does not employ anyone, Mr Shevlin has been involved with these various lifting devices and in senior and managerial positions over a very long period of time. It speaks well of his attention to safety that he has been able to participate at that high level for such a long period of time without coming into breach of occupational health and safety legislation. The defendants both have a good record and the personal references provided by Mr Shevlin speak well of him as a careful and safe operator in this industry and having a good reputation. Those are important matters that should be taken into account in favour of the defendants. It should also be noted, as was accepted by the prosecutor, that in his evidence Mr Shevlin was frank and open about his responsibilities and the part he played in this tragic accident and expressed contrition as well as offering his sympathy to Mr Walsh's family. He has also altered the work practice in relation to hiring as a result of this accident, especially in relation to the use of mobile telephones. All of these matters will be taken into account in mitigation of penalty. ORDERS 22 Re: Matter No 1249 of 2007: (a) The defendant, Hastings Equipment Hire Pty Ltd, is found guilty of a breach of s 10(2) of the Occupational Health and Safety Act 2000, as particularised in Matter No IRC 1249 of 2007. (b) The defendant is fined the sum of $95,000, with half that amount to be paid to the prosecutor by way of moiety. (c) The defendant is to pay the cost of the prosecutor in a sum agreed or, in the absence of agreement, as ordered by the Court. Re: Matter No 1250 of 2007 (a) The defendant, John Avalon Barrie Shevlin, is found guilty of a breach of s 10(2) of the Occupational Health and Safety Act 2000, by operation of s 26(1) of that Act, a breach particularised in Matter No IRC 1250 of 2007. (b) The defendant is fined the sum of $9,500 with half that amount to be paid to the prosecutor by way of moiety. (c) The defendant is to pay the costs of the prosecutor in a sum agreed or, in the absence of agreement, as ordered by the Court. AGREED STATEMENT OF FACTS 1. At all material times the Prosecutor was an Inspector appointed pursuant to the provisions of the Occupational Health and Safety Act 2000 and empowered by Section 106 ("the Act") and empowered under Section 106 of the Act to institute proceedings in this matter. The corporate defendant 2. At all material times, Hastings Equipment Hire Pty Ltd (ACN 099 727 081), ("the corporate defendant"), a duly incorporated company with its registered office at 4 Tunis Street, Laurieton in the State of New South Wales, was a controller of plant. 3. The corporate defendant's business operation was the hiring out of plant and equipment for use at work. 4. In a letter dated 16 February 2004 and addressed to Inspector Hugh Corner of WorkCover, the corporate defendant said it was: "… a company with no employees, and the director not drawing a regular wage …" 5. The corporate defendant pleads guilty to a charge that, on 27 August 2003 at 69 Pacific Drive, Port Macquarie in the State of New South Wales ("the site"), being a controller of plant, the corporate defendant failed to ensure that the plant used by people at work, in particular, John Francis Mark Walsh, was safe and without risks to health contrary to section 10(2) of the Occupational Health and Safety Act 2000. 6. The plant was used by people at work, not used only by employees of the defendant, not plant used in premises occupied only as a private dwelling, and was controlled in the course of a business or undertaking. 7. The particulars of the charge to which the corporate defendant pleads guilty are attached to this Statement of Facts as 'Annexure A'. The personal defendant 8. At all material times, John Shevlin ("the personal defendant") was the sole director of the corporate defendant. 9. The personal defendant pleads guilty to a charge that, being a director of a corporation, Hastings Equipment Hire Pty Limited ACN 099 727 081 ("the corporate defendant"), by virtue of section 26(1) of the Occupational Health & Safety Act 2000, he contravened section 10(2) of the Act on 27 August 2003 at 69 Pacific Drive, Port Macquarie in the State of New South Wales, in that the corporation controlled plant used by people at work, not used only by employees of the defendant, not plant used in premises occupied only as a private dwelling, and controlled in the course of a business or undertaking, and the corporation failed to ensure that the plant used by people at work, in particular John Francis Mark Walsh, was safe and without risks to health when properly used. 10. The particulars of the charge to which the personal defendant pleads guilty are attached to this Statement of Facts as 'Annexure B'. The incident 11. On 27 August 2003, at 69 Pacific Drive Port Macquarie, the deceased attended the site to develop concepts for a proposed development at the site. Part of this task was to provide photographs and architectural visualisation drawings of the site prior to construction. The deceased as architect and Lachlan Miles as an Architectural Visualisation Contractor or Draftsman were to provide the drawings. 12. Paul Stack was a director of Veredo Pty Ltd. Veredo hired the services of EWP and operator from the corporate defendant. The corporate defendant provided an elevating work platform ("EWP") and an operator. The intention was to have the EWP elevated to a height corresponding to floor levels of the proposed three-storey building and to obtain photographs for further uses. 13. The personal defendant delivered the EWP to the site and was to issue information, instruction and training on the safe use of the plant. 14. The personal defendant held certification for operation of an EWP in excess of 11 metres reach. He also carried a certificate as Trained Operator Elevating Work Platform Association of Australia Inc. 15. At approximately 12:10 pm, the personal defendant, Lachlan Miles, Paul Stack and the deceased arrived on site. 16. The personal defendant set up the EWP at the site. 17. The EWP consisted of a metal bucket (workbox) supported on metal masts, operated by hydraulic cylinders that straighten or bend in an elbow action to raise or lower the workbox. This articulated arrangement was mounted on a base support structure, which consisted of a wheeled type of vehicle, with trailer couplings connected by a horizontal frame assembly. On the base support assembly were mounted four outrigger hydraulically operated arms that could be extended. 18. The workbox consisted of a metal round pipe container. The platform had a base size of 800 mm by 1200 mm. It had a top rail 1050 mm above the platform base, a mid rail at 590 mm and a kick board around the base of 150 mm height. Above the top rail was a further rail around the three sides with the exception of the entrance area a further 78 mm above it was also set inboard a further 45 mm. 19. At the centre of the workbox and facing the rear of the appliance was a section of the mid-rail mounted on a sliding arrangement. This section could be raised to provide access to the workbox, under the fixed top rail. It was held in place by a metal strap at both ends and closed after entry by gravity. 20. The deceased was to get the views, to understand how the building would work on the site and where the views provided outlooks to the ocean (across the road) from the approximate plan floor levels of the development. 21. The deceased and the personal defendant went up in the EWP. The EWP stopped at about three metres above the ground, which was approximately level one of the proposed three-storey building. The deceased used a Toledo TP100-30 100 feet – 30 metre tape measure to measure the height from the ground to the platform of the workbox of the EWP. The tape was 10 mm wide and metal. According to Lachlan Miles, the tape stayed out as the EWP ascended from three metres. 22. According to Paul Stack, the deceased asked him to hold the end of the tape when the EWP was at about three metres off the ground. The deceased then asked him to let go. Lachlan Miles and Paul Stack were then talking to each other. 23. The deceased and the personal defendant ascended in the workbox of the EWP to a height of approximately nine or ten metres above the ground. 24. ... 25. The terrain at the rear of the work was very steep and led into a gully, there was a natural passage for wind between the two new buildings on the Peppermint Park site adjacent. As the deceased attempted to get the zero (light) end of the tape to touch the ground it appears a gust of wind may have sprung up and blown the loose end of the tape in an easterly direction towards the 11k volt bare aerial conductors. 26. After the incident arc marks were located at the 38 feet mark on the metal tape measure and similar marks were found at the rear of the EWP on the floor area below the entrance to the workbox. Arc marks were also found on the "A" phase of the 11Kv overhead power aerials, closest to the EWP. These marks were identified using binoculars; they were measured to be 8.32 metres above the ground and 11.6 meters from a wooden power pole number 1143. Other arc marks were found in the workbox but it is unclear how they got there. The metal tape was broken at the 38 feet 5-inch mark, possibly from being dropped to the ground. Additional arc marks were found at the stabiliser foot of the left hand rear outrigger, looking from the rear. 27. The deceased fell from the entrance area of the workbox of the EWP's workbox onto the concrete drive approximately nine or ten metres below. The investigation has revealed that there are two possibilities why the deceased fell, namely, he was leaning out of the workbox attempting to get the tape prior to it being exposed to the 11Kv lines or he was receiving an electric shock as it was exposed to the 11Kv lines. The deceased struck the concrete in the area between the rear outriggers. Scalp or beard particles were found on the pin through the right outrigger, looking from the rear. Also pieces of a watch were found in this area. 28. Dr Fuller of the Mid North Coast Pathology Service expressed the opinion that the direct cause of death was a head injury, with the antecedent cause of "Fall onto head". 29. Magistrate W Evans conducted a Coronial Inquest into the death of John Frances Mark Walsh on 18 May 2005, 2 August 2005 and 3 August 2005 and delivered findings on 3 August 2005. 30. On 3 August 2005, the Coroner found: "And finally, on the balance of probabilities, I favour electrocution as being the most likely cause of death. If impact injuries were to be considered there would still seem to be a clear nexus between Mr Walsh's receipt of an electric shock, his exit from the platform of the device and his impact on the ground." The risk 31. There was an actual risk of fatalities and/or injury due to falls from heights from the EWP. 32. The "Plant Guide 2001 WorkCover NSW Health and Safety Guide" lists "Slips, trips and falls" as one "Hazard". One of that hazard's "Typical Problems" is "falls from heights due to lack of proper work platform or guard rails". The "Typical Injury" is "Fractures; sprains and strains; fatalities." 33. On the date of the incident, the EWP's workbox displayed warnings that included: "CAUTION SAFETY BELTS WITH SHOULDER STRAPS OR SAFETY HARNESSES ARE TO BE USED" and "A SAFETY HARNESS MUST BE USED". 34. The corporate defendant failed to undertake an adequate risk assessment, in that it did not adequately identify the risk, evaluate the likelihood of an injury occurring and consider how severe it could be, assess the absence of safety belts with shoulder straps or safety harnesses, consult with those persons present and identify risk prevention or minimisation measures. 35. WorkCover's "Plant Hire and Lease –What Suppliers Must Know Facts Sheet 2001" advised that key responsibilities as a supplier of plant included identify the hazards, assess the risks, ensure the risks are controlled and provide information. 36. The corporate defendant failed to provide, with the elevating work platform, safety belts with shoulder straps or safety harnesses that were needed to operate the plant safely. 37. Eyewitnesses support that no such safety belts or harnesses were on site or used. The inspection carried out on the day of the incident at the scene found none. 38. The corporate defendant failed, in pre-start checks on the ground, to instruct, inform and insist that safety belts with shoulder straps or safety harnesses must be used by each person who is to be elevated in the workbox of the elevating work platform. 39. The "National OHS Certification Standard Cranes and Hoists Elevating Work Platforms Performance Assessment", published June 1995, included as one answer "All person working in the basket of a EWP must wear a safety harness (with training on how it is to be worn correctly, stored and maintained)", in response to "1. What safety equipment must be worn at all times by the person working in the basket of a EWP?" 40. The "Plant Guide 2001 WorkCover NSW Health and Safety Guide" said: "Any person hiring or leasing plant to others must ensure it is safe for use and properly maintained. They must also provide specific information to ensure that the end user has everything needed to operate the plant safely." [original emphasis] 41. The EWP's "JLG Operator's Book" located at the incident scene in the workbox of the EWP, stated under the heading "SAFETY HARNESS": "AERIAL ACCESS recommend a full body safety harness to be used at all times. A permanent attachment point is provided in the basket for fixing the harness." 42. The EWP's "EWP Safety Check & Routine Maintenance Logbook" located at the incident scene in the workbox of the EWP, listed under the heading "PRE-START CHECKS": "11. Condition of PPE (Personal Protective Equipment) i.e. harness(es), lanyards, energy absorber(s) etc. Ensure attachment points secure, no cracks/damage." 43. Eyewitnesses did not see the deceased being instructed in the use of the EWP. 44. According to Paul Stack: "On site John (the personal defendant) advised that we could operate the equipment ourselves and went up with John Walsh to show him how, when the accident happened." 45. The corporate defendant failed to prevent the deceased and the personal defendant ascending in the workbox of the elevating work platform unless they wore safety belts with shoulder straps or safety harnesses that were attached to a suitable anchor point provided for that purpose. 46. Australian Standard AS 2550.10 – 1994 "Cranes – Safe use, Part 10: Elevating work platforms" listed as one of the operator's responsibilities: "Ensure that all personnel wear safety harnesses correctly attached to the anchor point as applicable (see clause 9.10). 47. The Occupational Health and Safety Regulation 2001 in clause 142 provides that: (3) An employer must ensure that, in relation to plant designed to lift or move people, equipment or materials: … (d) persons are not lifted or suspended by plant or an attachment to plant (other than plant specifically designed for lifting or suspending persons) unless: (v) a suitable fall arrest device is provided to and worn by all persons who are suspended in a personnel box or carrier unless the box or carrier is fully enclosed 48. Eyewitnesses state that neither the deceased nor the personal defendant wore safety harnesses or any type of fall protection. Co-operation with WorkCover 49. The defendants cooperated with WorkCover throughout the investigation of this matter. Early plea of guilty 50. The defendants entered early pleas of guilty and are entitled to have he Court take this into account when imposing sentence No prior convictions 51. The defendants have no prior convictions under the Occupational Health and Safety Act 2000. ... ANNEXURE A Particulars of the charge against HASTINGS EQUIPMENT HIRE PTY LTD 1. There was an actual risk of death or injury due to falls from heights. 2. The defendant's business or undertaking was that: a. The defendant provided an elevating work platform at the place of work to a developer. b. The defendant provided John Avalon Barrie Shevlin as the person competent in the operation of an elevating work platform. 3. The defendant's control of the plant was not safe and had the risk to health because the defendant failed in any of the following aspects: a. The defendant failed to undertake an adequate risk assessment, in that it did not adequately identify or assess the risk to health of the absence of safety belts with shoulder straps or safety harnesses in the workbox of the elevating work platform. b. The defendant failed to provide, with the elevating work platform, safety belts with shoulder straps or safety harnesses that were needed to operate the plant safely. c. The defendant failed, in pre-start checks on the ground, to instruct, inform and insist that safety belts with shoulder straps or safety harnesses must be used by each person who is to be elevated in the workbox of the elevating work platform. d. The defendant failed to prevent Mr Walsh and Mr Shevlin ascending in the workbox of the elevating work platform unless they wore safety belts with shoulder straps or safety harnesses that were attached to a suitable anchor point provided for that purpose. 4. John Frances Mark Walsh falling from the workbox of the elevating work platform at heights was a manifestation of the risk. ANNEXURE B Particulars of the charge against JOHN SHEVLIN 1. At all material times the defendant was a director of the corporation. 2. There was an actual risk of death or injury due to falls from heights. 3. The corporation's business or undertaking was that: a. The corporation provided an elevating work platform at the place of work to a developer. b. The corporation provided the defendant as the person competent in the operation of an elevating work platform. 4. In the course of the corporation's business or undertaking, it had control of the plant for the purpose of section 10(2), (3) and (4) of the Occupational Health and Safety Act 2000 arising out of: a. The defendant holding certification for elevating work platforms in excess of 11 metres. b. The defendant set up the elevating work platform. c. The defendant was the competent person provided to issue information, instruction and training on the safe use of the plant. d. The defendant ascended in the workbox of the elevating work platform with John Frances Mark Walsh. 5. The corporation's control of the plant was not safe and had the risk to health because the corporation failed in any of the following aspects: a. The corporation failed to undertake an adequate risk assessment, in that it did not adequately identify or assess the risk to health of the absence of safety belts with shoulder straps or safety harnesses in the workbox of the elevating work platform. b. The corporation failed to provide, with the elevating work platform, safety belts with shoulder straps or safety harnesses that were needed to operate the plant safely. c. The corporation failed, in pre-start checks on the ground, to instruct, inform and insist that safety belts with shoulder straps or safety harnesses must be used by each person who is to be elevated in the workbox of the elevating work platform. d. The corporation failed to prevent Mr Walsh and the defendant ascending in the workbox of the elevating work platform unless they wore safety belts with shoulder straps or safety harnesses that were attached to a suitable anchor point provided for that purpose. 6. John Frances Mark Walsh falling from the workbox of the elevating work platform at heights was a manifestation of the risk. oo00oo 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.