Industrial Court of New South Wales CITATION: Inspector Hayes v Santos and Lorenzo [2009] NSWIRComm 163 Inspector Hayes (Prosecutor) PARTIES: Jose Luis Santos (Defendant in IRC2008/654) Jaime Lorenzo (Defendant in IRC2008/656) FILE NUMBER(S): IRC 654 and 656 of 2008 CORAM: Boland J President CATCHWORDS: OCCUPATIONAL HEALTH AND SAFETY - prosecution under s 8(1) and s 26 of the Occupational Health and Safety Act 2000 - Corporation wound up and prosecution withdrawn - prosecution of two directors of corporation maintained pursuant to s 26(2) of Act - not guilty pleas - employee seriously injured whilst assisting in the lift by a mobile crane of large steel plate - whether the corporation contravened s 8(1) by failing: to ensure compliance with or to adequately enforce a safe system of work for lifting and moving steel plates; to conduct any, or any adequate, risk assessment; to provide any, or any adequate, instructions and training to ensure safe lifting and moving of steel plates; to provide any, or any adequate, information to ensure safe lifting and moving of steel plates; to provide any, or any adequate supervision of employees necessary to ensure safe lifting and moving steel plates - defences of due diligence - whether personal defendants used all due diligence to prevent the contravention by the corporation - held corporation contravened s 8(1) of the Act - held defences of due diligence not made out. LEGISLATION CITED: Occupational Health and Safety Act 1983 Occupational Health and Safety Act 2000 Adams v ETA Foods Ltd (1987) 78 ALR 611 Cahill v State of New South Wales (Department of Community Services) (No 3) [2008] NSWIRComm 123; (2008) 182 IR 124 Drake Personnel Ltd t/as Drake Industrial v WorkCover Authority of New South Wales (Inspector Ch'ng) (1999) 90 IR 432 Dunlop Rubber Australia Ltd v Buckley (1952) 87 CLR 313 Inspector James v Sunny Ngai [2007] NSWIRComm 203 Inspector Ken Kumar v David Aylmer Ritchie [2006] NSWIRComm 323 McLean v Tedman [1984] HCA 60; (1984) 155 CLR 306 Morrison v Powercoal Pty Ltd [2004] NSWIRComm 297; (2004) 137 IR 253 Newcastle Wallsend Coal Co Pty Ltd v WorkCover Authority (NSW) (Inspector McMartin) [2006] NSWIRComm 339; (2006) 159 IR 121 CASES CITED: Powercoal Pty Ltd v Industrial Relations Commission of New South Wales [2005] NSWCA 345; 64 NSWLR 406; 156 A Crim R 269; 145 IR 327 Slivak v Lurgi (Australia) Pty Ltd (2001) 205 CLR 304 State Pollution Control Commission v Kelly (1991) 5 ACSR 607 Tesco Supermarkets Ltd v Nattrass [1972] AC 153 Universal Telecasters (Qld) Ltd v Guthrie (1978) 18 ALR 531 WorkCover Authority of NSW (Insp Dowling) v Coster [1997] NSWIRComm 154 WorkCover Authority of NSW (Inspector Egan) v Atco Controls Pty Ltd (1998) 82 IR 80 WorkCover Authority of New South Wales (Inspector Hopkins) v Profab Industries Pty Ltd [2000] NSWIRComm 142; (2000) 49 NSWLR 700 WorkCover Authority of New South Wales (Inspector Mansell) v Daly Smith Corp (Aust) Pty Ltd [2004] NSWIRComm 349 WorkCover Authority of New South Wales (Inspector Twynam-Perkins) v Maine Lighting Pty Ltd (1995) 100 IR 248 HEARING DATES: 17/02/09; 18/02/09; 23/04/09; 24/04/09; 30/06/09; 30/07/09 DATE OF JUDGMENT: 1 October 2009 Mr D Chin of counsel (Prosecutor) WorkCover Authority of New South Wales LEGAL REPRESENTATIVES: Mr M Moir of counsel (Defendants) K P O'Donnell & Associates, Solicitors JUDGMENT: INDUSTRIAL COURT OF NEW SOUTH WALES CORAM: BOLAND J, President Thursday 1 October 2009 Matter No IRC 654 of 2008 INSPECTOR PETER HAYES v JOSE LUIS SANTOS Prosecution under section 8(1) by virtue of section 26(1) of the Occupational Health and Safety Act 2000 Matter No IRC 656 of 2008 INSPECTOR PETER HAYES v JAIME LORENZO Prosecution under section 8(1) by virtue of section 26(1) of the Occupational Health and Safety Act 2000 JUDGMENT [2009] NSWIRComm 163 1 S & L Steel (NSW) Pty Ltd ('S&L') conducted a business of fabricating structural steel at 59 Glendenning Road, Rooty Hill ('the premises'). On 20 May 2006, Mr James Hair, who was employed by S&L as a trades assistant/labourer and sandblaster/painter, was injured when he was assisting a mobile crane driver in the lifting of a steel plate. As the plate was lifted by the crane, the hooks used to lift the plate and attached to the jib of the crane, slipped causing the steel plate to fall on Mr Hair. Mr Hair lost consciousness for a short period of time and sustained injuries including a broken right hip, right femur and pelvis and a fractured vertebrae in his back. 2 On 19 May 2008, Peter Hayes, an inspector with the WorkCover Authority of New South Wales, commenced proceedings against S&L and its two directors, Mr Jose Luis Santos and Mr Jaime Lorenzo ('the defendants'), for breaches of s 8(1) of the Occupational Health and Safety Act 2000 ('the Act'). Proceedings against S&L were subsequently withdrawn on 21 August 2008 following the winding up of the company in February 2007. The prosecution against the defendants remained on foot, with the prosecutor relying on s 26(2) of the Act to continue the proceedings. 3 Relevantly, s 8(1) provides: An employer must ensure the health, safety and welfare at work of all the employees of the employer. That duty extends (without limitation) to the following: (a) ensuring that any premises controlled by the employer where the employees work (and the means of access to or exit from the premises) are safe and without risks to health, (b) ensuring that any plant or substance provided for use by the employees at work is safe and without risks to health when properly used, (c) ensuring that systems of work and the working environment of the employees are safe and without risks to health, (d) providing such information, instruction, training and supervision as may be necessary to ensure the employees' health and safety at work, (e) providing adequate facilities for the welfare of the employees at work. 4 Section 26 provides: (1) If a corporation contravenes, whether by act or omission, any provision of this Act or the regulations, each director of the corporation, and each person concerned in the management of the corporation, is taken to have contravened the same provision unless the director or person satisfies the court that: (a) he or she was not in a position to influence the conduct of the corporation in relation to its contravention of the provision, or (b) he or she, being in such a position, used all due diligence to prevent the contravention by the corporation. (2) A person may be proceeded against and convicted under a provision pursuant to subsection (1) whether or not the corporation has been proceeded against or been convicted under that provision. (3) Nothing in subsection (1) prejudices or affects any liability imposed by a provision of this Act or the regulations on any corporation by which an offence against the provision is actually committed. (4) In the case of a corporation that is a local council, a member of the council (in his or her capacity as such a member) is not to be regarded as a director or person concerned in the management of the council for the purposes of this section. 5 The particulars for both offences were in the same terms, in that S&L had failed to: (a) ensure compliance with, or adequately enforce, a system of work for lifting and moving steel plates prior to and on 20 May 2006 that was safe and without risks to the health and safety of its employees; (b) conduct any, or any adequate, risk assessment as was necessary to ensure the health, safety and welfare of its employees whilst lifting and moving steel plates; (c) provide any, or any adequate, information to its employees, and in particular Mr Hair, as was necessary to ensure Mr Hair's health and safety at work whilst lifting and moving steel plates; (d) provide any, or any adequate, instructions and training to its employees, and in particular Mr Hair, as was necessary to ensure Mr Hair's health and safety at work whilst lifting and moving steel plates; (e) provide any, or adequate, supervision to its employees, and in particular Mr Hair and Mr Alvarez, as was necessary to ensure Mr Hair's health and safety at work whilst lifting and moving steel plates. 6 Both defendants entered a plea of not guilty. 7 The prosecution called 10 witnesses to give evidence in the proceedings. The witnesses were: Inspector Michael Kent, an Inspector with WorkCover; Inspector Peter Hayes; Constable Luke Middleton, a Constable with Mt Druitt Local Area Command; Mr Warren Bloom, employed by S&L as a Leading Hand Painter; Mr Bo Yeun Jung, employed by S&L as Workshop Foreman; Mr Alexander Palmos employed by S&L as an Industrial Painter; Mr Raul Alvarez, employed by S&L as Crane Driver; Mr Carlos Francisco, employed by S&L as Site Foreman; Mr Pedro Palejko, employed by S&L as Production Manager; and Mr James Hair, the injured employee. 8 The defence called three witnesses, Mr Lorenzo and Mr Santos and an expert witness, Mr Robert Boardman, who also prepared an expert report. THE INCIDENT 9 Mr Hair's duty statement required him to assist in carrying out work in 'grinding, drilling, punching and cleaning', as well as to carry out other duties as required. Mr Hair explained in his evidence that initially he had been performing sandblasting work at S&L, and that it was not until later in his employment that he assisted in lifting tasks using mobile cranes. Nevertheless, it is clear that Mr Hair had assisted in lifting and move steel plates using mobile cranes on a frequent basis prior to 20 May 2006. Mr Hair was not, however, a qualified dogman, that is someone who was qualified to 'sling a load' or to perform lifting tasks unsupervised. In addition, the evidence revealed that prior to his employment with S&L, he had only performed limited work in assisting mobile cranes, and had not lifted steel plates. 10 On Saturday 20 May 2006, the day of the incident, there were two supervisors on duty at the premises, Mr Jung and Mr Bloom. Mr Hair was due to commence work at 6.00am, but arrived at the Glendenning Rd premises at approximately 6.45am. By the time of Mr Hair's arrival, Mr Bloom had already allocated tasks to the other employees, and directed Mr Hair to assist Mr Alvarez with loading steel plates onto a truck. In his evidence, Mr Bloom stated that he knew that Mr Hair did not have a dogging certificate, but maintained that the direction for Mr Hair to assist Mr Alvarez in loading the truck was nothing unusual or abnormal, and that Mr Hair had lifted steel plates before. (It was Mr Hair's recollection, however, that it had been Mr Jung who had told him to assist Mr Alvarez, as the task was urgent. Mr Jung denied this and maintained that he never said anything more than 'good morning' to Mr Hair). 11 Mr Alvarez was employed in the position of Crane Driver - Leading Hand/ Materials Handling - Yard. Mr Alvarez's duty statement indicated that his duties included receiving incoming goods and storing them correctly and safely, delivering fabricated steel for painting, and loading of trucks for dispatch according to priorities determined by the workshop foreman. The evidence revealed that at the time of the incident Mr Alvarez held a crane ticket, but did not have a dogging certificate. However, Mr Alvarez was Mr Hair's immediate supervisor for the task of loading the truck and, according to Mr Lorenzo and the company policy, it was Mr Alvarez who had responsibility for ensuring that the load was safe. 12 In accordance with Mr Bloom's direction, Mr Hair went to assist Mr Alvarez. Mr Hair stated that the only discussion that he and Mr Alvarez had was that Mr Alvarez informed Mr Hair that 'the trailer had to be loaded and had to be out that day'. 13 The specific task that was to be performed required Mr Alvarez and Mr Hair to access a steel plate underneath a pile of steel plates (the steel plate in question measured approximately 5.48 metres long by 2.26 metres wide by 12 millimetres thick). It was, therefore, necessary for them to move the top plate in order to be able to move one of the plates underneath. Mr Hair and Mr Alvarez both agreed that the two of them did not have a discussion as to how to lift the plate. 14 It is necessary at this juncture to explain some of the relevant equipment utilised in lifting tasks and referred to throughout proceedings. First, there were plate clamps, also referred to as plate dogs, shoe clamps and lifting grabs. These are clamps that are secured onto a steel plate in order to lift and move the plate. There were two types of plate clamps, one type for vertical lifting and the second type for horizontal lifting. For example, if the steel plates were stacked on top of one another in a pile, horizontal clamps would be required, whilst if the plates were stored vertically, in a rack for example, vertical clamps were required. The steel plates that were being moved by Mr Hair and Mr Alvarez on the day of the incident were stacked in a pile and, accordingly, the workmen performed a horizontal lift. According to the WorkCover Authority's 'Dogging Guide 2003' - 6th Edition, which was tendered in proceedings, the procedure for lifting horizontally was as follows: Lifting horizontally. It is recommended that a minimum of four plate clamps and a spreader beam are used for lifting steel plate horizontally. For horizontal lifts use appropriate plate clamps. Use a spreader beam for long thin plates to prevent dangerous flapping, sagging and vibration. 15 In addition, hooks were also available to lift steel plates, although significantly both the dogging guide, and the company manual containing safety procedures, safety instructions and environmental management procedures provided that hooks were only to be used to perform a lift where there were lifting holes in the plate. Accordingly, where there were no lifting holes, the company manual required that appropriate clamps were to be used. 16 The accounts given by Mr Hair and Mr Alvarez in their evidence in the proceedings as to what occurred at the time of the incident, differed. Mr Hair stated that the first step he took to prepare for the lift was to go to the front of the crane to look for the lifting shoes. The company practice had been to have a minimum of two plate clamps located in a basket attached to the crane and according to evidence of employees, there were almost always two clamps on the crane. In addition, the evidence revealed that at the time of the incident, there were approximately 20 clamps located on the premises, specifically in the workshop and storeroom. 17 However, Mr Hair's evidence was that on 20 May 2006, when he went to get the clamps from the front of the crane, there were none in the basket on the crane. Mr Hair then turned to walk towards the storeroom to look for a pair of lifting shoes. However, Mr Hair stated that Mr Alvarez told him to 'just use the hooks, as they were just moving the top sheet to get to the one below'. 18 Both Mr Hair and Mr Alvarez agreed the hooks were already attached to the chain of the crane on the day of the incident. However, Mr Alvarez denied instructing Mr Hair to use the hooks. 19 Mr Alvarez agreed that after Mr Hair arrived, he had informed Mr Hair that they needed to access one of the sheets in the pile of steel plates, in order for it to be loaded onto the truck. He maintained, however, that it was not an urgent task, as the truck was to go out first thing Monday morning. According to Mr Alvarez, the men had used 'some wedges' to create sufficient space between the top sheet and the next sheet below. They then put pieces of wood in the space created by the wedges, in order to lift the plate a little. Mr Alvarez stated that Mr Hair used the hooks to perform the lift. It was Mr Alvarez's evidence that he and Mr Hair had not had any discussion about the use of hooks, nor had he instructed Mr Hair not to go to the storeroom and to just use the hooks. Both men agreed that it was Mr Hair who had placed the hooks on the steel plate. 20 Mr Hair explained that after Mr Alvarez told him to use the hooks, Mr Hair made a rough estimate of the centre of the sheet and placed the hooks on that location on each side of the sheet in order to ensure that the sheet lifted evenly. Mr Alvarez agreed that he saw Mr Hair place the hooks in the middle of the sheet, and that in his opinion that had been the correct location for the hooks to be placed. 21 The two men 'were both in agreement to lift' and they began to lift. Mr Alvarez explained that they both looked at each other and knew they were ready to begin lifting. There was, however, no verbal communication or signal. 22 Mr Hair explained in his oral evidence what happened next: Q. What happened next? A. It's come up unevenly and I've called out to Freddy to put it back down and I've tried to balance it out with my body weight and at the same time I'm calling out for him to put it down and when it's got too heavy for me to hold I've turned to run and it's fallen and hit me. Q. In which direction did you turn to run? A. Towards the trailer. Q. Was that away from or towards the plate? A. Away. ... Q. When the plate became unstable on 20 May you said you called out to Mr Alvarez? A. Yes. Q. What did you say? A. "Down", repeatedly "down". Q. What happened after you did that? A. After I repeatedly saying "down", he kept lifting and I couldn't hold it any longer and I've let go of the plates, turned around to run away from it and the accident has happened. Q. When you were struck by the steel plate how did you fall? A. Face down. Q. What happened to your consciousness after you fell? A. I lost consciousness, I don't know how long. 23 Mr Alvarez denied hearing Mr Hair yell out to put the load down or that he continued to lift despite Mr Hair's calls. It was Mr Alvarez's evidence that when the hooks began to slide, Mr Hair, in his attempt to run away, had run underneath the steel plate. Mr Alvarez explained that Mr Hair had run in that direction as, at the time of the incident Mr Hair was located between the crane and the plate, and had been unable to run away from the plate, as the crane was behind him. It was Mr Alvarez's opinion, that if Mr Hair had not tried to run he would not have been injured. 24 The evidence revealed that it was company policy for employees not to stand between the crane and a plate when they were assisting in a lift. Further, Mr Boardman's expert report, which is addressed later in the judgment, identified that the Australian Standard for Mobile Cranes Safe Use - AS2550.5 (2002), 6.8.1 provided that: where possible, persons assisting the crane operator shall not be located between the suspended load and the crane and they shall be visible to the crane operator. 25 Mr Hair was not questioned in respect of this Australian Standard, and there was no evidence that he was aware of the Standard. However, Mr Hair did know, prior to 20 May 2006, not to stand between the load and the jib of the crane, as it was dangerous to do so. Mr Hair denied, however, that he was standing in that location on 20 May 2006. Mr Hair recalled that when the lift had commenced he had been standing with the plate in front of him, the factory building was on his right hand side and the crane was on the other side of the plate. 26 Following the incident, Mr Palmos was the first to arrive at the scene. Mr Palmos gave evidence that he was 70 to 100 metres away from where the incident occurred, but that when he had heard the noise he went over to see what happened. 27 Mr Alvarez then obtained a clamp from the equipment tray at the front of the crane, and Mr Alvarez and Mr Palmos lifted the sheet off Mr Hair. Mr Palmos explained that he was certain that he had seen more than one plate clamp on the crane on the day of the incident, however the two men had only used one to remove the sheet from Mr Hair. 28 Mr Hair was subsequently conveyed to Nepean Hospital by Ambulance, where he was treated for his injuries. 29 Following the incident, the company conducted its own investigation into the incident and concluded that the cause of the incident had been the use of hooks to lift the plate and by Mr Hair standing between the plate and the crane. The defendants 30 Mr Lorenzo and Mr Santos were the sole directors of S&L. The two men had worked together for 30 to 40 years, originally in Spain and then Germany as boilermaker/pressure welders. After emigrating to Australia, and working for separate companies, Mr Lorenzo and Mr Santos formed a partnership between 1974 and 1976, conducting a pressure welding business known as Mald Pressure Welding. The business was successful and Mr Lorenzo and Mr Santos established a workshop in Smithfield before relocating to Rooty Hill in 1989. Mald Pressure Welding eventually became S & L Steel (NSW) Pty Ltd in 1999 at which time Mr Santos and Mr Lorenzo were appointed S&L's sole directors. 31 As to the respective roles and responsibilities of the defendants, the company's organisational chart, as at 20 May 2006, provided that Mr Lorenzo, had responsibility for 'Workshop/Site Personnel' and 'Site Work'. Mr Lorenzo explained this meant that he dealt primarily with the fabrication and production side of the business, which included dealing with workshop and site personnel. Mr Santos' role, according to the organisational chart, was 'Facilitator QMS/OHS/EMS'. Mr Santos explained this role meant that he was to provide a system with relevant procedures and instructions in the areas of occupational health and safety, quality assurance and environmental management. In addition, Mr Santos was involved in dealing with clients, completing tenders, arranging contracts and performing the administrative requirements of the company. 32 As at 20 May 2006, the company employed over 40 employees. ELEMENTS OF OFFENCE UNDER s 26(1) 33 As the prosecutor submitted, s 26(1) treats directors such as Mr Lorenzo and Mr Santos, by virtue of their position, as being complicit in the offences of S&L unless they establish one of the defences in s 26: Morrison v Powercoal Pty Ltd [2004] NSWIRComm 297; 137 IR 253 at [161]-[162]; Powercoal Pty Ltd v Industrial Relations Commission of New South Wales [2005] NSWCA 345; 64 NSWLR 406; 156 A Crim R 269; 145 IR 327 at [109]-[112]; and Inspector Ken Kumar v David Aylmer Ritchie [2006] NSWIRComm 323 at [162]. 34 The elements of an offence under the predecessor provision to s 26(1) (s 50(1) of the Occupational Health and Safety Act 1983 ('the 1983 Act') were found by the Full Bench in Morrison v Powercoal at [157] to be as follows: 1 There is a corporation; 2 The corporation has contravened, by act or omission, any provision of the Occupational Health and Safety Act 1983 or the regulations made pursuant thereto; 3 The person charged is a director of the corporation or a person concerned in the management of the corporation. Given that the terms of s 26(1) are not materially different to the terms of s 50(1) of the 1983 Act, the foregoing elements may be regarded as the elements of an offence under s 26(1). 35 Further, as the Full Bench noted in Morrison v Powercoal, the onus of proving the foregoing elements beyond reasonable doubt falls on the prosecutor. However, the onus of proving the exceptions, namely, that the person charged: (a) was not in a position to influence the conduct of the corporation in relation to its contravention of the provision, or (b) being in such a position, used all due diligence to prevent the contravention by the corporation, falls on the personal defendant. The onus in that respect is the civil onus, namely, on the balance of probabilities: WorkCover Authority of New South Wales (Inspector Mansell) v Daly Smith Corp (Aust) Pty Ltd [2004] NSWIRComm 349; Inspector Kumar v Ritchie. WHETHER THERE WAS A CORPORATION; WHETHER PERSONS CHARGED WERE DIRECTORS 36 Two of the elements of the offence may be dealt with in short order: that S&L was a corporation at the time of the offence and that Mr Lorenzo and Mr Santos were directors of the corporation were admitted facts. WHETHER S&L CONTRAVENED s 8(1) 37 The contravention that the prosecution is required to prove beyond reasonable doubt in this case involves an offence that consists of the following elements: (a) S&L was an employer for the purposes of the Act at the time of the alleged offence; (b) S&L employed employees at its place of work; (c) S&L failed to ensure the health, safety or welfare of its employees and in particular James Hair; (d) there was a causal relationship between the facts causing the risk to safety and S&L's acts or omissions. Each of these elements is dealt with below. Whether S&L was an employer; whether S&L employed employees at its place of work 38 It was admitted by the defendants that on 20 May 2006 S&L employed employees, including Mr Hair and Mr Alvarez, to work at 59 Glendenning Road, Rooty Hill/Glendenning NSW, at which premises S&L conducted the business of fabricating structural steel. Whether S&L failed to ensure safety of employees 39 As it will have been seen, the charges particularised five failures by S&L to ensure the safety of employees and, in particular, Mr Hair: a failure to ensure compliance with or to adequately enforce a safe system of work for lifting and moving steel plates; a failure to conduct any, or any adequate, risk assessment; a failure to provide any, or any adequate, instructions and training to ensure safe lifting and moving of steel plates; a failure to provide any, or any adequate, information to ensure safe lifting and moving of steel plates; and a failure to provide any, or any adequate supervision of employees necessary to ensure safe lifting and moving steel plates. 40 As it was observed in Drake Personnel Ltd t/as Drake Industrial v WorkCover Authority of New South Wales (Inspector Ch'ng) (1999) 90 IR 432 at 452, 'it is not the accident itself which constitutes the offence, but rather the failure of the employer to ensure that its employees are not exposed to risks while at work.' The risk to Mr Hair's health, safety or welfare in this case was the risk of injury from the collapse of a steel plate during the process of lifting the plate by a mobile crane on 20 May 2006. The question, therefore, is whether S&L exposed Mr Hair to that risk in the manner alleged in the particulars of the charges. 41 Further, as the defendants conceded, regard must be had to the absolute nature of the liability imposed by s 8(1) of the Act: see Cahill v State of New South Wales (Department of Community Services) (No 3) [2008] NSWIRComm 123; (2008) 182 IR 124 and the authorities referred to therein. Thus, in satisfying its duty to ensure health and safety of its employees, the employer must take into account not only the careful and observant employee but also the careless, inattentive or inadvertent employee: Dunlop Rubber Australia Ltd v Buckley (1952) 87 CLR 313 at 320; McLean v Tedman [1984] HCA 60; (1984) 155 CLR 306 at 311 - 312; WorkCover Authority of New South Wales (Inspector Twynam-Perkins) v Maine Lighting Pty Ltd (1995) 100 IR 248; WorkCover Authority of New South Wales (Inspector Hopkins) v Profab Industries Pty Ltd [2000] NSWIRComm 142; (2000) 49 NSWLR 700 at 722. System of work 42 Prior to 20 May 2006, S&L had in place a safety management system, which consisted of procedures, instructions and safety policies. Under the company's former name, Mald Pressure Welding, there had been policies and procedures in place. However, when the company became S&L in 1999 a major revision and implementation of new procedures had occurred, resulting in the creation of the safety management system. The policies and procedures were reviewed again in 2004. 43 Mr Santos explained that he had played a very important role in developing the safety management system and had primary responsibility for preparing the company's occupational health and safety policy and the company's lifting procedure. Mr Santos was assisted in the writing and preparing of the company's occupational health and safety procedure by an external consultant, Mr Malcolm Gribble, whom he had know for over 30 years. Mr Lorenzo was also involved in the process. 44 Mr Gribble's résumé was tendered in proceedings. He was the principal consultant for M & A Enterprises, a consulting company established in 1987 'for the purpose of consulting with small to medium business for guidance in the implementation of Systems, covering areas of Quality, OHS&R, and Environmental Management to suit their individual needs'. Mr Gribble had over 30 years' experience in 'precision mechanical/fabrication and electrical environment'. His qualifications included being accredited as an OHS Management System Auditor, Quality Management System Auditor, Advance Quality Assurance Supervisor and Industrial Supervision Certificate 1 & 2. 45 Mr Santos explained that once the procedures and policies were properly documented two meetings were held: first with management and the other with workshop personnel in which the procedures and policies were presented and explained, including the purposes of the procedures and policies. In addition, staff were informed that copies of the documents were located in the foreman's office and available 'to anyone that needs to consult, check or read whatever they want to read'. Lifting Procedure 46 The company's lifting procedure was set out in two documents, the principle document being Occupational Health and Safety Procedure - SOP 17 - Securing and Lifting Devices ('SOP 17'), and a supplementary document entitled 'Safety Instruction 17.1 - Lifting and Securing'. The safety instruction was described by Mr Santos as a more detailed step by step procedure for lifting, but explained that the two documents were to be read together. 47 SOP 17 defined the requirements for the maintenance and inspection of lifting and securing devices used within S&L operations. It provided that prior to lifting, all chains, hooks and shackles needed to be inspected and determined to be in a serviceable condition. The document also provided that all lifting and securing devices, when not in use, were to be maintained in suitable storage areas. It was the storeman's responsibility to ensure that this occurred, although management could delegate the responsibility to workshop or site supervisors. The document did not, however, deal specifically with safety issues. 48 Safety Instruction 17.1 - Lifting and Securing, dated July 2005, and issued in August 2005, established an 8-step lifting procedure to be followed when lifting with a crane. It provided as follows: 1.0 REFERENCE DOCUMENTS I. Procedure SOP 17 - Lifting and Securing Devices II. OHS Procedure SOP 01 - Reporting of Injury and Incident 2.0 INSTRUCTION This Safety Instruction covers lifting using Cranes, Hiabs, etc. Work Shop Step 1 Before using any item for lifting and/or securing, it must be inspected to make sure there is no damage, i.e. - Wire slings are not twisted or frayed; Maximum Working Load (MWL) is correct, etc. - Web fiber type slings are not frayed, have cuts, and the eyes are sound. - Chains are not stretched, welded links are not cracked, correct MWL. - "D" shackles have the correct load rating, correct pin fitted, no twist etc. - Dogs/Clamps and other securing mechanisms are operative, no wear to grip areas etc. - Chain jointing links are the correct size, and are not deformed etc. - Inspect all lifting rams for leakage - if leaking do not use. Note: Report any leakage of rams to the supervisor as leaking rams cause accidents. CAUTION: do not spread joining links - get correct type and size for the chain to be jointed. CAUTION: Do not use mild steel or undersize bolts to replace missing pins in "D" shackles or for joining chains. Step 2 Before lifting and/or moving inspect the route and the area where the lift is to take place, and make sure it is clear and that other people in the area are notified. Step 3 Where other people could be involved should an accident occur, they are to be moved to safe area. Step 4 Before starting a lift inspect all lifting points to make that they are secure. Step 5 Where an item is being lifted obscures your vision, have another person to act as your guide. Step 6 Prior to conducting a full lift do a test lift first to ensure that the equipment being used is capable of the lift. Especially where mobile cranes or forklifts are used. Step 7 When a lift(s) is completed remove all lifting equipment and store back in the correct storage areas. Step 8 Prior to conducting lifts on a Construction Site, the Site Management must be notified of the type, slew area, weights involved and approximate time. Incidents If an Incident should occur whilst a lift is being carried out, it shall be reported to Management immediately. If on a Client's site the Site Manager to be informed. Reporting to be in accordance with SOP 01. Safety Crane Operators/Forklift Drivers are responsible for the safety and control of all lifts. IF IN DOUBT - STOP - SEEK FURTHER GUIDANCE LIFTING GUIDE LINES PLATE (No matter size) Plate Clamps must be used at all times - check jaws, grip area, and locking mechanisms to ensure a secure attachment at all times. For lifts above 1 metre attach tag lines to control lifts, if necessary use two or more personnel on opposite tag lines. ... LIFTING CHAINS and HOOKS When using chains and hooks for lifting ensure that the chains are secured in place and that the hooks are tapped down to ensure a firm connection. ... WARNING AT NO TIME ARE OPEN HOOKS TO BE USED FOR LIFTING PLATE UNLESS CORRECTLY MADE AND ATTACHED LIFTING POINTS ARE SUPPLIED. 49 The company's written procedure required plate clamps to be used at all times, and that hooks were only to be used where there were appropriate holes or lifting points. When there were no such lifting points, hooks were not to be used. 50 Significantly, Mr Hair was not aware of Safety Instruction 17.1 prior to the incident on 20 May 2006. In his WorkCover Injured Person's Statement, Mr Hair stated that prior to 20 May 2006 he had not seen Safety Instruction 17.1. There is no evidence before the Court to suggest that Mr Hair was provided with a copy or shown Safety Instruction 17.1 prior to the incident. However, according to Mr Santos, a copy of the procedure was located in the foreman's office and was available to all employees. 51 It was the prosecution's submission that despite the existence of the written policy, 'using open hooks to lift steel plates entirely off the ground - at least for the purposes of placing clamps and grabs onto the plates - was adopted at the premises'. In respect of the use of hooks to lift plates prior to 20 May 2006, the evidence was as follows. 52 Mr Hair stated that he had used hooks to lift steel plates prior to 20 May 2006, and that he had used hooks on a daily basis, sometimes as often as a few times a day. Mr Hair explained that he had used hooks to perform small lifts, for example, in order to create space to insert timber between sheets, and also to perform complete lifts. That is, Mr Hair had used hooks to completely lift and move steel plates. Furthermore, he had adopted the practice of using hooks with other crane drivers, including Mr Bloom. 53 Mr Bloom gave the following evidence in respect of using hooks to lift steel plates: Q. Had you lifted steel plates with the use of hooks directly on to steel without the use of plates or grabs or clamps? A. Yes. ... Q. Firstly, how often did you lift steel plates with the use of open hooks? A. Very rarely. You use the hook to pick it up and put the plate grab or put the shoes on. I'm not going to pick it up two, three metres in the air, no way. Q. You have not done that? A. No. Q. Have you observed anyone operating a lift with open hooks? A. You usually put shoes on or a dog on; that's the way it's done. Q. You say "usually", how high would you have observed others lifting steel plates? A. Not very high, maybe 6 inches, just enough to put timber or whatever, depends, you can put a dog on, you don't need the timber; that's it. Q. Were there any other ways of placing shoes or clamps or grabs on the steel plate? A. There's other ways. You can put a pinch bar or whatever; they just sit on the ground so it's easy, it slips on under so you can put it - slip it under and put your shoe on. 54 Mr Bloom conceded he had shown Mr Hair how to perform a lift with hooks in order to apply the shoes. 55 Mr Jung had also seen people use open hooks for small lifts where there 'was no room for lifting'. That is, he had seen people use the hooks to make a gap under the plates, place a piece of timber in the gap and then apply the clamps. Mr Jung stated that he had not seen anyone perform a complete lift, but when he had seen people use hooks to lift a steel plate to a height any higher than necessary to place a piece of timber in the space, he would instruct them to stop. Mr Jung stated he made such an instruction because lifting steel plates with hooks to a height was too dangerous. 56 Mr Alvarez maintained that prior to the lift he performed on 20 May 2006, he had not used open hooks to lift a plate. The only time Mr Alvarez said hooks were used was on the day of the incident. Mr Alvarez described the use of hooks on the day as 'a fatality (sic) at the moment or perhaps lack of concentration'. I note that this was despite evidence, also given by Mr Alvarez, that he observed Mr Hair place the hooks on the plate and that he thought that the location of the hooks had been appropriate. This represents a significant inconsistency with Mr Alvarez's evidence that he had not used hooks to lift steel plate. If he had not done so one would expect the reasons for that would have been that he considered it to be dangerous and/or contrary to S&L's policy. In those circumstances, one would not expect him to have stood by whilst Mr Hair attached the hooks to the steel plate on 20 May 2006. Mr Alvarez's evidence that he had never used hooks prior to 20 May 2006 would also appear to be inconsistent with the evidence of Mr Bloom and Mr Jung, which suggests there was a practice of at least using hooks to lift plates in order to insert wedges under the plate in order to fit clamps. I did not find Mr Alvarez to be a reliable witness as to the truth. I accept Mr Hair's evidence that he had intended to obtain clamps from the storeroom but Mr Alvarez told him just to use the hooks. 57 Both Mr Palejko and Mr Palmos had not seen anyone use hooks to lift steel plates prior to the incident. In particular, Mr Palejko stated that if he had seen someone use hooks to lift steel plates, he would have been upset because 'we emphasise in every tool box meeting that hooks are not to be used to move steel plates in such a way'. Further, Mr Palejko had himself been involved in an incident in 1980, when one of the hooks used to move an impeller, a large fan, slipped and the impeller fell on Mr Palejko. Mr Palejko sustained broken ribs, pelvis, damage to his back and did not return to work for 4 to 6 months after the incident. He was, therefore, very aware of the risk, and sought to emphasis the need not to use hooks to S&L employees. 58 The defendants were also not aware of any practice of using hooks to lift steel plates at the premises prior to 20 May 2006. Both Mr Santos and Mr Lorenzo maintained that the correct procedure was to use a pinch bar in order to create space between steel plates. Mr Bloom also agreed that a pinch bar could be used, whilst Mr Jung described the practice of using a wedge when the plate was flat on the ground: Q. If the plate is lying directly on the ground, or lying directly on top of other plates, how do you attach the plate clamps? A. WITNESS: We use the wedge, steel wedge, between two plate, and the hammering and make a gap enough for the hooks and put the hook inside, lifting up little bit, about timber size, and put the timber between them and use the clamp for lifting shoes to attach it to the plate. That's normal operation to fasten it, only the way to do it. 59 Mr Santos was not aware that hooks were used to create space to apply clamps, and he himself had never seen it happen. The first time he became aware of such a practice was in the course of these proceedings, but Mr Santos maintained that if he had became aware of the practice earlier, he would have sought to stop it. Mr Santos was also not aware that Mr Jung had cause to intervene when employees had used hooks to lift steel plates higher than necessary to insert a piece of timber, nor had Mr Santos asked Mr Jung whether he had observed the practice of using hooks. 60 Mr Lorenzo gave the following evidence in respect of using hooks to lift the plates in order to apply the plate clamps: Q. And you're not aware that Mr Hair was instructed in that procedure? A. To use the-- Q. To use the hook to lift the plate? A. No. As far as I know, Mr Hair has been told to use plate clamps and it's a simple thing, it's a common sense. Everybody does this. Q. Your answer is no? A. No. Q. Did you ever ask Mr Jung whether this practice was adopted? A. They report to me any - we discuss in the tool box meetings, "I saw someone doing this", "I saw somebody doing that" so in those meetings, we talk about many things. In the tool box meeting, there never have been discussed of using hooks or people, as far as I know, using the hooks to lift the plates. I see, myself, many times lifting the plate with a pincher bars. Q. Can you answer my question which was whether you ever asked Mr Jung whether employees were using hooks to lift the plates? A. How I'm going to ask the question when it's not practice thing in the company? Q. So you were satisfied that because your understanding was that it was not a normal practice, you didn't feel that there was a need to ask Mr Jung whether employees were lifting plates with open hooks? A. In the tool box meetings, we say always the same thing, work safety. I not going ask Jung, "Jung, are the boys using the glasses for grinding?" Or "are they using the safety guards for the grinder?" I don't want to ask these questions when we're talking. And I say to them, anything happens in the workshop or any anomaly will have to talk in tool box meetings to insist and rephrase the people to work safety. So I don't ask this particular question. 61 I am satisfied beyond reasonable doubt that the evidence proves that hooks were used from time to time to perform partial lifts of steel plates in order to apply plate clamps. There was a difficulty in applying plate clamps to steel sheets stacked in a pile and it was necessary to first create a space between individual steel plates, before applying the clamps. The practice of using hooks to perform this task was inconsistent with the correct method, namely, the use of a pinch bar to raise the plate in order that wedges could be inserted. 62 It is clear that the company policy of only using hooks where there were appropriate lifting holes, was not always followed in practice, and at times the policy was contravened by supervisors: for example, Mr Bloom showing Mr Hair how to use open hooks to lift plates in order to apply clamps. However, the evidence does not enable me to make a finding that the system of work that operated at the premises involved the use of hooks to perform complete lifts and to move the plate to another location. 63 Particular (a) of the charges, it will be recalled, was that S&L failed to 'ensure compliance with, or adequately enforce, a system of work for lifting and moving steel plates prior to and on 20 May 2006 that was safe and without risks to the health and safety of its employees'. The charge is confined to what occurred on 20 May 2006 and not prior to that date. The particulars cannot be used to enlarge the scope of the charge. Therefore, the charge is not concerned with whether there was a practice prior to 20 May 2006 of using hooks to lift steel plates. 64 The system of work adopted by S&L proscribed the use of hooks for lifting steel plates unless there were lifting holes. If hooks could not be used to lift the plate it must follow they could not be used to move the plate. It must also follow that it having been established that hooks were used to lift steel plate on 20 May 2006, S&L failed to ensure compliance with its system of work for the lifting of steel plates. 65 The question remains, however, whether S&L failed to ensure compliance with a system of work for lifting and moving steel plates 'that was safe and without risks to the health and safety of its employees'. In their evidence both Mr Lorenzo and Mr Santos conceded that lifting plates with open hooks to any height was contrary to S&L's policy and that it was unsafe; Mr Santos agreed it was 'dangerous'. S&L's policy regarding the lifting of steel plates using open hooks was a recognition of the risk associated with doing so. The recommendation in the Dogging Guide that a minimum of four plate clamps and a spreader beam should be used for lifting steel plate horizontally was an indication of the care to be taken in using proper equipment in order to avoid or minimise risk. The injuries sustained by Mr Hair were a manifestation of the risk of using open hooks. 66 On the basis of the foregoing, it is my opinion that S&L failed to ensure compliance with a system of work for lifting and moving steel plates that was safe and without risks to the health and safety of its employees. 67 Particular (a) of the charges alleged in the alternative that S&L failed to adequately enforce a system of work for lifting and moving steel plates prior to and on 20 May 2006 that was safe and without risks to the health and safety of its employees. Strictly speaking, it is unnecessary to consider the alternative given the finding that S&L failed to ensure compliance. But, in any event, having failed to ensure compliance with a safe system of work it would seem to follow that S&L also failed to adequately enforce such a safe system. Plate clamps 68 Before leaving particular (a), I should deal with the prosecution's contention that S&L failed to ensure compliance with a safe system of work by virtue of the fact that there were no plate clamps or grabs supplied with the crane on 20 May 2006 that were suitable for performing a horizontal lift of the steel plate. The issue was of some significance as it was Mr Hair's evidence that if the plate clamps had been available on the day, he would not have used hooks and the incident would not have happened. 69 According to Mr Santos and Mr Lorenzo, there should have been a minimum of two plate clamps located in the equipment basket of the mobile crane, as well as clamps located in the storeroom/workshop. The evidence was that there were usually two clamps located on the mobile cranes. However, Mr Lorenzo conceded that there was no system that required both vertical and horizontal plate clamps to be located on the mobile crane. 70 In addition, it was the prosecutor's submission that not only was the system not enforced, but that as the WorkCover dogging guide required a minimum of four lifting plates to perform a horizontal lift, requiring 'two clamps' was not of itself adequate. 71 Constable Luke Middleton, the police officer who attended the scene after the incident gave evidence in proceedings. Photographs taken by Constable Middleton soon after the incident, and tendered into evidence, revealed a yellow clamp attached to the steel plate. This was consistent with the evidence of Mr Palmos and Mr Alvarez that after the plate fell on Mr Hair, the two men had obtained a clamp from the front of the crane and had used it to remove the sheet from Mr Hair. It was the prosecutor's submission that it was clear that the clamp in the photograph was a clamp designed for a vertical lift. The defendants did not dispute that proposition. I, therefore, accept that the clamp used to remove the sheet from Mr Hair was a vertical clamp. 72 Although it was Mr Hair's evidence that there were no clamps in the equipment tray on the day of the incident, the evidence suggests that there were no horizontal clamps, but only vertical clamps. Mr Palmos, the first to attend the scene, stated that he saw plate clamps in the front of the mobile crane and was certain that he had seen more than one plate clamp and thought that there had been two. However, Mr Palmos explained that he and Mr Alvarez had only used one of the plate clamps to move the steel plate off Mr Hair. That plate clamp was the one shown in Constable Middleton's photograph and was a vertical plate clamp. 73 As for the availability of clamps elsewhere on the premises, the evidence revealed that there were approximately 20 plate clamps available on 20 May 2006. This was Mr Jung's evidence and he knew this to be so because he had checked the clamps himself following the incident. He stated that plate clamps were located in the workshop and the storeroom. 74 Mr Palejko stated that in the week after the incident he had physically gone around and had counted 23 clamps. He did agree that the company had purchased clamps after the incident, but maintained that this was usual procedure, often to replace clamps and it was not done because of the incident. 75 Mr Lorenzo and Mr Santos stated that there were more than 20 plate clamps located on the premises on 20 May 2006. Mr Lorenzo maintained that he knew this because he always ensured that there was that quantity of plate clamps available. When asked how he ensured that quantity, Mr Lorenzo explained that he gave instructions to Mr Palejko, Mr Jung, Mr Bloom and 'crane people' to make sure that the plate clamps were available at all times. In addition, Mr Lorenzo stated that he would go and check himself. 76 Mr Santos explained how he made sure that there were plate clamps available on the premises: Q. Before 2006 what did you do to make sure there were plate clamps available in the premises? A. I used to tell Carlos to go through the shop and check if the plate clamps are okay, if they are suitable and, if not, we will replace them or we buy new ones. 77 There had been an issue in 2003 about the difficulty in finding plate clamps and this had been raised during a workshop meeting on 3 September 2003. The minutes from that meeting recorded that: 'Plate grabs & other shared equipment are been hidden by workers and other workers can't find them'. 78 Mr Palejko explained that the issue was not that staff were intentionally hiding the equipment, but that people were using the plate clamps and not returning them to the appropriate location. The company's response had been to inform employees that when they were finished with a plate clamp they were to return it to where they had taken it from. Mr Lorenzo explained that this was continuously monitored by himself, Mr Santos, the foreman and leading hand, to ensure that the clamps were located in the correct spot. 79 Whilst it is somewhat curious that each of the witnesses who were asked how many plate clamps were located on the premises on the day recalled there being 20 plate clamps available, I have no basis to believe otherwise. However, I find that there were no horizontal plate clamps available on the crane on 20 May 2006. For the horizontal lifting of steel plates qualified dogmen are trained in the recommended method of using a minimum of four plate clamps and a spreader beam. There were only two vertical plate clamps on the crane. 80 It must be accepted, however, that there were clamps located on the premises on the day, albeit in the workshop/storeroom. Whilst it was a most unsatisfactory system not to have the necessary clamps on the crane, the question is whether that constituted a system of work that was not safe and attended by risks. 81 The risk was that in the absence of clamps being immediately at hand, employees would be tempted to use hooks rather than walk the distance of about 200 metres to the workshop or storeroom to find and retrieve suitable clamps. That, indeed, is what happened and it is not surprising that Mr Hair did not follow through with his intention to find clamps in the storeroom because Mr Bloom had shown him how to lift steel plates with open hooks in order to put the shoes on. Moreover, it must be remembered that the employer's duty is owed equally to the hasty, careless, inadvertent, inattentive or unreasonable employee and that employers are under an obligation to 'be on the offensive to search for, detect and eliminate, so far as is reasonably practicable, any possible areas of risk to safety, health and welfare' that may have arisen from time to time in the conduct of the business: WorkCover Authority of NSW (Inspector Egan) v Atco Controls Pty Ltd (1998) 82 IR 80 at 85. It was reasonably foreseeable that if plate clamps were not immediately available employees might take the expedient course and use hooks to lift steel plates, especially for the purpose of inserting wedges. 82 In these circumstances, S&L's failure to ensure sufficient and suitable clamps were available on the crane and not in the storeroom or workshop on 20 May 2006 constituted a system of work that was attended by risk. This compounds the earlier failure found to have occurred, namely, the failure to ensure open hooks were not used to lift steel plates. 83 I find that S&L failed to ensure compliance with, or adequately enforce, a system of work for lifting and moving steel plates on 20 May 2006 that was safe and without risks to the health and safety of Mr Hair. Particular (a) is made out. Risk assessment 84 Particular (b) alleged that S&L failed to conduct any, or any adequate, risk assessment as was necessary to ensure the health, safety and welfare of its employees whilst lifting and moving steel plates. 85 The prosecutor merely relied on statements by Mr Hair and Mr Alvarez that no risk assessment was carried out prior to the steel plate being moved on 20 May 2006. On the other hand, the evidence established that S&L had identified the risks associated with the task of lifting steel plates of the kind involved on 20 May 2006, determined the level of risk, and established appropriate risk control measures for inclusion in its safety management plan. The defendants submitted: Between 1999 and 2006, the company undertook extensive efforts to develop and promulgate its safety management plan reflected in the written safe operating procedures and safety instructions developed during this period. The preparation and review of this plan was achieved with the assistance of an experienced consultant. This consultant was also engaged to undertake site audits and risk assessments during this period at the company's premises in Rooty Hill. The site documentation in place prior to the accident shows that the company developed a method of work for lifting and moving steel plates which included an appreciation and assessment of the salient risks connected with the task. The site documentation also reflected the appropriate risk control measures devised by the company relating to this task. In particular, Safety Instruction 17.1 – Lifting and Securing dated July 2005 identified: LIFTING GUIDE LINES PLATE (No matter size) Plate Clamps must be used at all times ... WARNING AT NO TIME ARE OPEN HOOKS TO BE USED FOR LIFTING PLATE UNLESS CORRECTLY MADE AND ATTACHED LIFTING POINTS ARE ATTACHED 86 I accept the defendants' contentions regarding risk assessment. It has not been established beyond reasonable doubt that S&L failed to adequately assess the risks inherent in the task. Particular (b) is not made out. Information, instruction and training 87 Particulars (c) and (d) alleged that S&L failed to provide any, or any adequate, information, instruction and training to Mr Hair, as was necessary to ensure Mr Hair's health and safety at work whilst lifting and moving steel plates. 88 Mr Hair maintained that when he commenced employment with S&L, as part of his induction he was given no training or instructions or 'shown anything' in relation to dogging work or assisting mobile cranes, and was only given on the job training by Mr Alvarez and Mr Bloom later during his employment. Mr Hair said that on his first day he had had a meeting with Mr Palejko, who took him through the induction form and then showed him around the storeroom and factory and showed him where things were located. 89 Mr Francisco, the Site Foreman and Mr Palejko, the Production Manager - Welding Supervisor, both gave evidence that when Mr Hair commenced employment an induction had been performed. Mr Hair's induction form was tendered in proceedings and recorded that an induction had been conducted on 2 May 2005. The form was signed by Mr Hair, Mr Palejko and Mr Francisco. The form indicated, that amongst other areas, Mr Hair had been instructed in assisting mobile cranes, lifting equipment and dogging. 90 Mr Francisco gave evidence that during the induction he had asked Mr Hair whether he had worked with cranes before and whether he had a dogging certificate. Mr Hair advised that he had previously worked with cranes, but did not have a dogging certificate. Mr Francisco then asked Mr Hair to sling a load, which Mr Hair did to Mr Francisco's satisfaction. Mr Francisco said he instructed Mr Hair that when lifting loads, not to do anything stupid and to use plate clamps and not hooks when lifting steel plates. Mr Francisco also explained the different types of clamps, and where they were located. In respect of dogging, Mr Francisco explained that he inducted Mr Hair in respect of dogging work, despite Mr Hair not being a qualified dogman, as 'dogging was part of the work', and so long as Mr Hair performed dogging work in full view of the crane driver, that was permissible. It was Mr Francisco's understanding that, according to WorkCover, if loads were slung in full view of a crane driver, formal qualifications were not necessary. 91 Mr Palejko explained that the induction process had gone for about 45 minutes and that, although he had filled in Mr Hair's name on the form, it had been Mr Hair that had ticked the boxes in respect of the areas covered in the induction. Mr Palejko explained that the process was that he would go through and explain all the areas and that Mr Hair would tick it off on the form. Mr Palejko stated that he had said to Mr Hair that when lifting steel plates 'we recommend all the time we lift or move the steel plate we use clamps'. 92 Mr Bloom gave the following evidence about training: Q. What training did Mr Hair receive in that procedure you've just described there? A. He was shown. I've shown him, I showed him how to use the dogs, how to use shoes, how to sling a load, how wide to put the chains, how wide not to put the chains, all common dogman sort of stuff, so he learns as he goes along. Q. And did you show him how to lift the plates with open hooks in order to put the shoes on? A. Yes. 93 Mr Lorenzo was asked about the training provided to Mr Hair and advised that apart from the tool box meetings, Mr Hair was always under the supervision of the crane driver, the leading hands and the foreman. I understood from Mr Lorenzo's answer that he considered that the tool box meetings had been the relevant forum in which Mr Hair had been trained. 94 Mr Lorenzo had also told his staff to ensure any new employee, including Mr Hair, were trained in lifting 'the safety way'. Mr Lorenzo accepted, however, that he did not tell anyone to train Mr Hair in what was the maximum safe angle between the legs of a sling. 95 When it was put to Mr Santos in cross-examination that Mr Hair had never been trained to determine the weight distribution of a load, Mr Santos provided the following answer: I think my answer may be this one, Mr Palejko is a manager. He is aware of procedures. When he is training someone I believe that his knowledge will be used to transfer this sort of knowledge to train another person. Q. You relied on Mr Palejko to provide the training without having a sufficient knowledge of any training that was given to Mr Hair? A. I rely on my Toolbox meetings, I rely on my people in the workshop and the outside people who come to give lectures about how to do things. 96 When asked what steps Mr Santos had taken to ensure Mr Hair had been trained to use only a spreader beam, and to use four clamps when lifting a steel plate, the evidence was as follows: Q. What steps did you take to ensure Mr Hair was trained in the use of only spreader beams and four clamps when lifting steel plate? A. I think I rely on the people who are working there and the procedures for dealing with the safety instructions. Mr Hair was also provided with a new book because he was in training and wanted to be a crane driver. Q. Yes? A. So the process was there for a person to learn while he was working there. Q. Please complete your answer? A. He worked with Warren and Warren was training him. Carlos was in the yard as well, and Mr Palejko. I myself explained things to James Hair. I believe the people in the key positions, it is part of the community as well, they had a role to play in the every day business there. My understanding from the Toolbox meetings was James Hair was an experienced person and I was quite happy to train him to get to be a crane driver. Q. Is it the case you did not take any steps to ensure that James Hair received any training, any particular type of training? A. Of course. Q. In lifting and moving loads? A. Of course as I say to you anyone in the company is in the capacity, they attend meetings and at the weekly meetings those things are discussed. The implementation of this is for Carlos and Warren and Pedro. Because the training is constant you do the operation now and in an hours time you do a different thing. Q. The training was for Mr Hair predominately, was it? A. The training was part of the job, we had to train him, yes. Q. It was mainly on-the-job experience for him? A. And Toolbox meetings as well. We had safety meetings where everybody attends. He would also be attending there. When the Demag person come to tell us how to load steel, this is for everyone in the shop, even the storeman. Q. How did you satisfy yourself Mr Hair was trained in where to place or to attach slings to a load by reference to a weight distribution of the load, how did you satisfy yourself as to that? A. I rely on the information we had and the supervisors. I am not physically there all the time. Q. The on-the-job training, you have talked about Toolbox meetings, the training of Mr Hair and, you relied on Mr Alvarez to supervise Mr Hair, and also Mr Bloom? A. Yes. 97 It cannot be doubted that Mr Hair received information, instruction and training in respect of lifting and moving steel plate. The question is whether it was adequate. In respect of whether Mr Hair had received adequate instruction and training, a matter of contention was whether Mr Hair was required to hold a certificate of competency in dogging work. Dogman's Certificate 98 On 20 May 2006, neither Mr Hair nor Mr Alvarez who, according to S&L's own policy was responsible for ensuring the lift was performed safely, were in possession of a dogging certificate. It was the prosecutor's contention that Mr Hair was required to have a dogging certificate and that S&L's failure to ensure that Mr Hair had completed the necessary training in order to perform dogging work had given rise to the risk to Mr Hair's health and safety. It was contended by the defendants that as the lift performed by Mr Hair was a simple lift, and as Mr Hair was in full view of Mr Alvarez, he was not required to have a dogging certificate. 99 As at 20 May 2006, reg 266 of the Occupational Health and Safety Regulation 2001 provided that a recognised qualification was required where dogging work was performed. Regulation 265 defined dogging as: (a) the application of slinging techniques, including the selection or inspection of lifting gear, to safely sling a load, or (b) the directing of a crane operator or hoist operator in the movement of a load when the load is out of the operator's view. 100 It was the prosecutor's submission that the work performed by Mr Hair on 20 May 2006 was dogging work within the meaning of reg 265, as Mr Hair was required to exercise his own judgment as to where to attach the slings or chains to the steel plate. The defendants submitted, however, that there was no evidence to suggest that the lifting of the plate required any calculations as to weight or centre of gravity and was, therefore, not a complicated lift. Further, it was submitted that as the lifting gear had been pre-determined, that is, the hooks were already attached to the crane, there was no evidence to suggest that they were fitted to the crane by anyone other than a competent person. 101 In respect to the issue of a dogging certificate, the evidence revealed that as at 20 May 2006 the defendants knew that Mr Hair was not a qualified dogman. It was the understanding of Mr Lorenzo, however, that so long as Mr Hair performed simple lifts in full view of the crane driver, he was not required to have a dogging certificate. Consistent with this understanding, Mr Lorenzo had instructed the foreman, production manager and supervisors that Mr Hair was not allowed to be involved in complicated lifts. 102 Mr Lorenzo was questioned in respect of a document entitled 'Employees by Qualifications'. The document recorded that as at 20 May 2006, both Mr Bloom and Mr Alvarez held dogging certificates. Neither Mr Bloom nor Mr Alvarez held dogging certificates as at 20 May 2006, although both held crane certificates. The employer's record of the qualifications of these two employees was incorrect. 103 Mr Francisco gave evidence that he had specifically asked Mr Hair if he had a dogging certificate, and had been informed by Mr Hair that he did not. It was Mr Francisco's understanding, however, that according to WorkCover, Mr Hair did not need to have a certificate to sling a load, so long as Mr Hair was in full view of the crane driver. Mr Francisco gave evidence that he had inducted Mr Hair in dogging work and assisting mobile crane, as that was 'part of the job'. 104 Mr Palejko explained that a dogging certificate was required when someone had to perform 'a selection of slings, selection of chain, calculating the weight, working with a crane, the position that the crane driver cannot see you'. In respect of the specific task performed by Mr Hair and Mr Alvarez on the day, however, Mr Palejko maintained that there was no need for Mr Hair to select any slings or to perform any calculation in respect of the centre of gravity or weight. 105 Turning to the issue of whether 'dogging' work was performed on the day, it was the evidence of both Mr Hair and Mr Alvarez that the hooks were already attached to the crane on the day of the incident. Mr Hair stated that after he had been directed to 'just use the hooks', he had made a rough guess as to the centre of the plate and had done so to ensure that the plate lifted evenly. Mr Hair did not, however, notice anything about the angles of the chains. 106 Although Mr Alvarez and Mr Hair ultimately used the hooks, there is no evidence as to who selected the hooks and attached them to the crane. But there is also no evidence to suggest that a competent, or qualified dogman did select the hooks. Accordingly, the evidence is only that the hooks were already attached to the crane prior to Mr Hair and Mr Alvarez performing the lift on 20 May 2006. Expert Evidence 107 In respect of whether Mr Hair should have had a dogging certificate on 20 May 2006, the defendants sought to rely on an expert report prepared by Mr Robert Boardman. Mr Boardman confirmed that he had read the Expert Witness Code of Conduct in Schedule 7 of the Uniform Civil Procedure Rules 2005 and had agreed to be bound by the Code. Mr Boardman also gave oral evidence in proceedings and was required for cross-examination. 108 Mr Boardman's résumé revealed that he held qualifications in the following areas: National OHS Certificate Assessor, Building Inspector's certificate, Scaffolder's certificate, Dogging certificate, Rigger's certificate and Trade Qualifications of carpenter. In respect of his employment history, Mr Boardman had been a Building Foreman for Newman Crowe and Partners. Mr Boardman was employed as an Inspector for the WorkCover Authority from 1977 until he retired from that position in 1998. Since 1998 Mr Boardman had been a self employed trainer, OHS consultant and OHS Certificate Assessor. In these roles Mr Boardman trained plant operators, conducted safety audits and OHS consultations and assessed for the following Certificates of Competency: Dogging, rigging, scaffolding, forklift truck, front end load, excavator, skid steer loader, loader backhoe and other plant. 109 In respect of Mr Boardman's experience in occupational health and safety specifically relating to dogging and rigging, Mr Boardman explained that following training, his tasks as a Safety Inspector included: Inspection of setting up of dogging and rigging work in industry Inspection for compliance with regulations and approvals for associated equipment Writing directions to persons in charge regarding non compliance in dogging and rigging work including demolition Responsible for conducting accident investigations and appearing as an expert witness in subsequent court proceedings involving dogging and rigging work, non compliance and prosecution action following accidents Writing Coroners reports and appearing in the Coroners Court as an expert witness in the case of fatal accidents in connection with dogging and rigging work 110 Mr Boardman had prepared his report based on a number of assumptions identified by solicitors for the defendants, and was asked to provide answers to three questions. First, as to whether the lift performed by Mr Hair and Mr Alvarez on 20 May 2006 was a complex lift, Mr Boardman stated that the lift was a simple procedure which both men had performed on previous occasions without incident. The procedure did not require calculations to be made to determine centre of gravity or weight, and was uncomplicated in that it did not require use of specialised gear. 111 Further, the experience gained by the men on previous lifts and at regular tool box meetings, coupled with internal safety instructions had equipped Mr Hair and Mr Alvarez with the knowledge and expertise to carry out the work safely. In Mr Boardman's experience: ... hands on demonstration such as those demonstrated at tool box meetings is a superior work practise (sic) than simply reading work method statements and other documents. Live and controlled action is a much better method of communication. 112 In cross-examination, Mr Boardman agreed that in assessing whether the lift was a complex lift, he had relied on the proposition that both Mr Hair and Mr Alvarez were properly trained to perform the lift safely. Mr Boardman agreed that his reference to 'hands on demonstration', was in reference to 'actual live demonstrations', but that there was no factual basis in the materials given to him by the defendants' solicitors, for him to make such a comment. Mr Boardman agreed it had been something he had assumed had occurred in tool box meetings. 113 Further, Mr Boardman could not recall being told that Mr Hair had only received on the job instructions from Mr Alvarez, the crane driver. Nor was he told that Mr Hair's induction had consisted of being asked to sling a load once and being told to use clamps. Mr Boardman was asked to assume that if that was the level of training received by Mr Hair, whether Mr Boardman's confidence in Mr Hair's capacity to perform the lift changed in any way. Mr Boardman replied: Well, it may do. We don't know how much Mr Alvarez knew; he apparently knew it all and in these sort of cases the crane driver himself can do the lift, he can do the slinging himself. 114 The second area that Mr Boardman was asked to address was whether the lifting task performed on 20 May 2006 required the application of slinging techniques, including the selection or inspection of lifting gear, in order to safely sling a load. Mr Boardman opined that it did not as Mr Hair and Mr Alvarez had carried out the work on previous occasions without incident and the crane was already prepared for the lifting of the steel plate, 'having the slings and plate grabs in place on the crane'. 115 In cross-examination, Mr Boardman repeated that Mr Hair and Mr Alvarez were not required to select the slings, as the slings had already been selected, that is the equipment was already attached and it was just a matter of the two men 'picking up the same slings and the same clamps that they used - both clamps they used before'. Mr Boardman did, however, agree that it depended on the definition of selection. The following exchange then occurred: Q. Can I ask you, Mr Boardman, to assume that Mr Alvarez selected the lifting equipment that was used on the day and I think the effect of your evidence is - correct me if I'm wrong - that that would suggest that Mr Alvarez, at least, had engaged in the selection of lifting gear? A. Yeah. Depending on the definition of "selection", it seems to me that there's not very much weight put on selection if he knows what he's got to use. Q. You are not suggesting that just because someone's used some gear before in relation to a load-- A. Yeah, I am. Q. --that he was not exercising any judgment in selecting that gear again, are you? A. No, I am. 116 Thirdly, in his report Mr Boardman was asked whether in the circumstances, it was necessary for Mr Hair to hold a National Certificate of Competency in Dogging in order to safely perform the lifting of the steel plate on 20 May 2006. In order to respond to this question, Mr Boardman explained the history of the dogging certificate. Originally, dogging certification had been divided into 3 groups, Class 1 Dogman, Class 2 Dogman and Crane Chaser. Both Class 1 and Class 2 dogmen were qualified to carry out all dogman duties, except Class 2 was not qualified to ride a load. A crane chaser was qualified to carry out work when the chaser: Was in full view of the crane operator at all times and did not require selection of slings and lifting gear to safely move a load. Was a simple load that does not require calculations to determine the centre of gravity, weight or types of specialised gear. 117 In 1995, with the commencement of a national certificate of competency under the new regulation, the dogging certificate replaced Class 1 and the two former certificates. Mr Boardman then stated that: Crane chasing does not require the issue of a certificate provided the person carrying out the load lifting operation follows the guidelines as laid down. The WorkCover Information Sheet states the following: "A certificate may not be needed if the load has been predetermined and the slings selected by a competent person. In this situation it is unlikely that you are exercising judgement". 118 Annexed to Mr Boardman's report was a document prepared by WorkCover New South Wales and entitled 'NSW Certificates of Competency: Information on National Dogging Certificates'. Mr Boardman explained that the document described the requirements for a person to carry out slinging and directing a load without a dogging certificate. Specifically, Mr Boardman extracted the following paragraph of the document: Can a person sling and direct a load without a dogging certificate? Yes but only when the load remains in clear view of the crane operator and there is no requirement to exercise judgement in relation to: · which sling to use; · how to sling the load; · the condition of the sling; or · the load and its centre of gravity. 119 Mr Boardman also highlighted the following paragraph: A certificate may not be needed if the load has been predetermined and the slings selected by a competent person. In this situation it is unlikely that you are exercising judgement. 120 Relevantly, the 'NSW Certificates of Competency: Information on National Dogging Certificates' also provided: NOTE - A Dogging Certificate is not required when the load to be lifted: is in full view of the crane operator at all times, and does not require selection of slings and/or lifting gear to safely move a load; is a simple load that does not require calculations to determine the centre of gravity, weight or types of specialised gear. 121 It was Mr Boardman's opinion that on 20 May 2006 Mr Hair had fulfilled the criteria making it unnecessary for him to hold a dogging certificate to carry out the lift. Mr Boardman stated that the slings had been checked during an earlier inspection and that the incident had appeared to occur because of complacency by Mr Hair and Mr Alvarez. Mr Boardman concluded that Mr Alvarez and Mr Hair: failed to adhere to instructions and proven work method; Mr Hair, as the person assisting the crane operator, placed himself between the load and the crane in direct contrast to the recommendation described in the Australian Standard for Mobile Cranes Safe Use - AS2550.5 (2002), 6.8.1 as follows: Where possible, persons assisting the crane operator shall not be located between the suspended load and the crane and they shall be visible to the crane operator. 122 In cross-examination, Mr Boardman, agreed that there was no factual basis for his comment that the slings had been checked before. 123 Mr Boardman was cross-examined in respect of the four criteria identified in the 'NSW Certificates of Competency: Information on National Dogging Certificates', extracted above. Critically, Mr Boardman agreed that in order to qualify for an exemption from a dogging certificate, it was not enough that the load was in clear view of a crane operator, and not enough that the lift might not be complex. Rather, the critical question was whether a person assisting the lift was required to exercise judgment in respect of any one of the four factors, namely: · which sling to use; · how to sling the load; · the condition of the sling; or · the load and its centre of gravity. 124 In respect of whether Mr Alvarez and Mr Hair exercised judgment on 20 May 2006, Mr Boardman maintained that the equipment was already selected and that they had previously performed the lifting task without incident. However, under cross-examination Mr Boardman conceded the following: · it was possible that Mr Alvarez and Mr Hair had exercised judgment in inspecting the condition of the slings and to make sure that they were fit for the purpose. Although Mr Hair may not necessarily have exercised judgment if the slings had already been inspected, for example, by Mr Alvarez; · Mr Alvarez, although he did not have a dogging certificate, was a crane driver, and according to Mr Boardman could assess the condition of the slings. Mr Boardman agreed, however, that without a dogging certificate, a crane driver could not sling and direct a load where a dogging certificate was required; · Mr Hair exercised judgment on the day in respect of where to attach the hooks to the plate, although Mr Boardman maintained that Mr Hair 'was doing it quite out of order with the way he had been taught and the way he had done it before'. Mr Boardman clarified that this meant that Mr Hair was exercising judgment but that it was the wrong judgment; · Mr Boardman also stated that if Mr Hair had followed the tried and proved method he would not have had to exercise judgment. When pressed on what he meant by this Mr Boardman agreed that his evidence was that if someone had exercised judgment once, every time the task was repeated, that person would not be exercising judgment again; · Mr Hair should have exercised judgment in directing Mr Alvarez to position the head of the jib directly over the plate. 125 I also note the evidence of Mr Alvarez and Mr Hair in their relevant WorkCover statements. When asked who had selected the lifting gear Mr Alvarez had stated 'me and James'. When Mr Hair was asked who had selected the hooks, he stated that they were already attached to the chain. 126 Despite Mr Boardman's concessions in cross-examination, he appeared to maintain the view that as the lifting gear had been predetermined in that it was already attached to the crane and, as Mr Alvarez and Mr Hair had performed the lifting task before, if they had followed the correct procedure they would not have needed to exercise judgment. It does not seem, however, that Mr Boardman turned his mind to the fact that in deciding to use the equipment attached to the crane, and in selecting where to place the hooks, Mr Alvarez and Mr Hair were required to exercise judgment. Conclusion regarding information, instruction and training 127 As I earlier noted, the question is not whether Mr Hair received any information, instruction and training but rather whether what he received was adequate. 128 The evidence indicates that Mr Hair received information, instruction and training to an extent that he knew of the requirement to use clamps to lift and move the steel plate. It will be recalled that he was about to go to the storeroom to obtain clamps when Mr Alvarez told him to just use the hooks that were attached to the chain on the crane. 129 The prosecutor submitted, however, that Mr Hair received inadequate and ambiguous instructions about the use of open hooks to lift steel plates. On the one hand, it was submitted, there were verbal instructions at tool box meetings to always use plate clamps; on the other hand, Mr Palejko had stated at Mr Hair's induction that the use of clamps was 'recommended' and, critically, Mr Hair was expressly instructed by his supervisor in the dangerous practice of how to use open hooks to lift plates for the purpose of attaching clamps and, thus, that the use of open hooks for lifting steel plates was not prohibited absolutely. 130 S&L was obliged to provide such information, instruction and training as was necessary to ensure that employees and, in particular Mr Hair, were able to carry out the work of lifting and moving steel plates without risk to their health and safety. Whilst information, instruction and training was provided in relation to the use of clamps, I agree with the prosecutor that Mr Hair received inadequate information, instruction and training about the use of open hooks such that the state of that information, instruction and training did not ensure that Mr Hair understood there was an absolute prohibition on the use of hooks when lifting and moving steel plates. 131 The evidence established that: Mr Hair was given very limited instruction on assisting mobile cranes and dogging work at his induction, which did not extend to S&L's own eight-step lifting procedure contained in the written procedures; Mr Hair had not seen S&L's Safety Instruction 17.1 as at 20 May 2006; whilst Mr Hair received limited information and instruction, apart from Mr Francisco witnessing Mr Hair slinging a load at the time of his induction (about which there was no detail), Mr Hair did not receive any training by qualified personnel in the sense of a demonstration of the method or technique for moving and lifting steel plates using a mobile crane; Mr Hair had used open hooks to lift steel plates prior to 20 May 2006; Mr Alvarez had advised Mr Hair to use open hooks on 20 May 2006 and Mr Hair did not question that advice; and Mr Hair was expressly instructed by his supervisor how to use open hooks to lift plates for the purpose of attaching clamps. I also find that based on his advice to Mr Hair to use the hooks, Mr Alvarez received inadequate instruction and training about the use of open hooks. 132 In relation to the dogging certificate issue, I had some difficulty with Mr Boardman's evidence, which I think was caused by his insistent but misguided reliance on assumptions provided to him by the defendants' solicitors and which affected his objectivity. Nevertheless, I accept his evidence that a person is exempted from being required to have a dogging certificate to sling and direct a load where the person is not required to exercise judgment in relation to all of the four factors listed in the WorkCover document entitled 'Information on National Dogging Certificates' and the critical consideration is whether the person is required to exercise judgment in relation to any one of those four factors, namely: · which sling to use; · how to sling the load; · the condition of the sling; or · the load and its centre of gravity. 133 As to whether Mr Hair or Mr Alvarez were required to exercise judgment in relation to any one of the foregoing factors, the defendants were correct in submitting that: · there was no evidence that the application of slinging techniques, or the inspection or selection of lifting gear, was ever part of the duties of Mr Hair or Mr Alvarez; · the chains (or slings) were already attached to the crane on the morning of 20 May 2006. There was no evidence to suggest that the chains were fitted to the crane by anyone other than a competent person; · there is no evidence to suggest that the chains were anything other than fit for purpose; and · there was no evidence to suggest that the lifting of the plate required any calculations as to weight or centre of gravity to be performed by either Mr Hair or Mr Alvarez. 134 There may have been no evidence that the application of slinging techniques, or the inspection or selection of lifting gear, was ever part of the duties of Mr Hair or Mr Alvarez. However, the fact is that Mr Hair slung the load by placing the hooks where he considered was the point equidistant from the ends of the plate. In doing so he exercised judgment as to how to sling the load and exercised judgment about the load and its centre of gravity. Therefore, according to Mr Boardman, Mr Hair was required to hold a dogman's certificate. 135 The training in dogging work for the purpose of obtaining a dogging certificate involves instruction in rules to follow when slinging a load such as identifying the points of a load at which slings should be attached by reference to the angle of the legs of the sling, and the use of plate clamps and spreader beams when horizontally lifting ordinary rectangular steel plates. Mr Hair was not instructed in these techniques, particularly the angle required between the legs of the sling when attaching the sling to the steel plate and the use of spreader beams, because of misconceptions by key personnel. Mr Lorenzo thought that Mr Hair could perform the work of assisting to lift loads using a mobile crane provided the lifts were simple and not complicated. Accordingly, he merely instructed his managers not to allow Mr Hair to be involved in complicated lifts. Mr Francisco, who inducted Mr Hair in assisting cranes and dogging work, thought Mr Hair did not need a dogging certificate if he worked on simple lifts and remained in view of the crane driver. 136 I am satisfied beyond reasonable doubt that S&L failed to provide adequate information, instructions and training to its employees, and in particular Mr Hair, as was necessary to ensure Mr Hair's health and safety at work whilst lifting and moving steel plates. Particulars (c) and (d) are made out. Supervision 137 Particular (e) alleged that S&L failed to provide any, or adequate, supervision to Mr Hair and Mr Alvarez, as was necessary to ensure Mr Hair's health and safety at work whilst lifting and moving steel plates. 138 For the defence it was submitted that there were three supervisors or leading hands on duty on the morning of 20 May: Mr Jung, Mr Bloom and Mr Alvarez. Mr Alvarez was the direct supervisor of Mr Hair during the task performed on 20 May. He was also a licensed crane operator with over 13 years' experience in loading and unloading steel plates as at 20 May 2006. 139 Moreover, it was submitted that no third person was required to supervise the lift performed by Mr Alvarez and Mr Hair as both men had demonstrated safety and competence on similar previous tasks, and Mr Alvarez was the experienced leading hand in charge of the lift. Both Mr Alvarez and Mr Hair knew what was expected of them in the circumstances, and their failure to follow the company's established method of operation did not reflect any failure by the company to do more in terms of supervision. It was submitted Mr Jung did not speak with Mr Alvarez about the particular lift to be performed on 20 May because 'he know what to do'. Further, Mr Santos stated that common sense was applied with respect to the allocation of supervision for particular tasks at the site: The activities are co-ordinated with the operation manager and the workshop foreman and between themselves they had to co-ordinate what the needs are. If two people are needed there will be two people, if three people are needed, there will be three people there. 140 For the prosecutor it was submitted: On 20 May 2006, Mr Bloom, Mr Hair's supervisor, was working near the back of the workshop at the time of the incident involving Hair (about 200 metres from where the incident took place); Mr Jung, the foreman, was working in the workshop at the time of the incident involving Hair (about 100 metres from where the incident took place); Mr Hair and Mr Alvarez performed the lifting of the steel plate unsupervised by any other person; Mr Hair was supervised and directed in performing dogging work on 20 May 2006 by a person who was himself not qualified to perform dogging work, namely, Mr Alvarez. Even if Mr Hair was not strictly required to have a dogging certificate to perform the subject lift, Mr Alvarez was so required: (i) the defendants relied on Mr Alvarez's and Mr Bloom's training and qualifications to direct Mr Hair in assisting mobile cranes and lifting safely; (ii) Mr Lorenzo erroneously thought that Mr Alvarez and Mr Bloom had dogging certificates at the time of the incident. Mr Santos was not sure whether Mr Alvarez and Mr Bloom had dogging certificates; (iii) in fact, neither Mr Alvarez nor Mr Bloom held dogging certificates as at 20 May 2006; (iv) some competent person had to have exercised judgment in selecting the slings used for the lift on 20 May 2006, at least at some point; (v) although the hooks were already affixed to the slings on the crane prior to the lift Mr Alvarez expressly conceded that he (and Mr Hair) selected the lifting equipment to be used on the day. This was inevitably so because, whether or not the slings were already on the crane and whether or not those slings had been used in prior lifts, Mr Alvarez and/or Mr Hair must have made a conscious or unconscious decision that they were suitable for that particular lift; (vi) moreover, at the point " prior to using these items " and " especially where being used for securing purposes ", Mr Alvarez and/or Mr Hair were required by S&L's own safety procedures to inspect chains (for, inter alia , stretched links, cracked link joints, bent and/or crushed links) and hooks; (vii) accordingly, the training of a dogman involves detailed instruction as to how to check the grade and condition of lifting chains; (viii) it is clear that at least Mr Alvarez did, and (it is submitted, also Mr Hair) was required to, exercise judgment in respect of (a) selecting which sling to use, and (b) inspecting the condition of the sling. On the relevant criteria accepted by the defendants' expert witness, a dogging certificate was therefore required for slinging and directing the movement of the steel plate on 20 May 2006 (if not held by Mr Hair, then certainly to be held by Mr Alvarez); (ix) this is consistent with the evidence of Mr Lorenzo who conceded that Mr Alvarez had been relied upon to select lifting gear for, and move and lift, the full range of products produced at the premises; (x) Mr Boardman accepted that "a person who holds a certificate of competency to operate a crane or hoist cannot sling or direct the movement of a load except where the holding of a dogging certificate is not required or the person holds a dogging certificate"; (xi) this is consistent with the Regulations which provide for separate and distinct certificates of competency for "dogging", "operation and use of cranes" and "operation and use of hoists" each of which is identified as a separate and distinct type of "scheduled work"; (xii) as the holder of only a crane certificate Mr Alvarez was therefore not permitted to sling and direct the movement of the subject load without also holding a dogging certificate. 141 In respect of the supervision of Mr Hair for the specific lift on 20 May 2006, the evidence was that Mr Alvarez was Mr Hair's immediate supervisor. As earlier noted, however, Mr Alvarez was not in possession of a dogging certificate at the time of the incident. Furthermore, there was no other qualified person present when Mr Alvarez and Mr Hair performed the lift on 20 May 2006. 142 Mr Bloom was Mr Hair's supervisor on the day of the incident, but at the time of the incident Mr Bloom was working near the back of the workshop which was about 200 metres away from where the accident occurred. Mr Bloom only became aware of the incident when Mr Palmos had told him that there had been an accident. Mr Bloom could not remember exactly, but he thought that at the time of the accident he had been shifting some plates with a crane. 143 Mr Jung gave evidence that he saw Mr Hair arrive at work at 6.45am, however he only said 'good morning' to Mr Hair and then returned to the workshop. At the time of the incident Mr Jung was inside the workshop, which was located about 100 metres away from where the incident occurred. He only became aware of the incident when 'some painters' came and reported it to him. 144 Mr Santos gave evidence that there was a system whereby there were always supervisors supervising activities at any given time, but he conceded that there was not a system that required three people to work on simple lifts. 145 Mr Lorenzo also agreed that he did not require a third person to supervise lifts performed by Mr Hair and Mr Alvarez, but he said this was because Mr Hair was always under the view of the crane driver. 146 Mr Alvarez, therefore, was Mr Hair's supervisor for the purpose of the lift, and according to the company procedure, as crane operator, was the one with the responsibility for the safety and control of all lifts. 147 When Mr Lorenzo was questioned in respect of supervision of Mr Hair the following exchange occurred: Q. Mr Alvarez was responsible for directing Mr Hair to perform his job safely? A. Yeah, he was. He was the person to ensure that a load is safety. Q. Mr Alvarez was? A. Well, supposed to, being the person - or been sure that the load is tied and chained properly. Chain or the base as they supposed to, supervision, yes. Q. And that was Mr Alvarez's responsibility, correct? A. Yes. Q. And you relied on Mr Alvarez's experience to do so, correct? A. I rely on Mr Alvarez and the supervision behind. Q. But when Mr Alvarez and Mr Hair were working by themselves on a lift you relied on Mr Alvarez to look after the safety? A. Well, I rely on the chain of command, Pedro, Jung, Warren and the rest of the people. I believe that the chain, the communication you have to be there and instruction supposed to be there. Q. Yes, but the chain of other people are not working with Mr Alvarez and Mr Hair when they are working together in the yard, are they? A. I give instructions. I give instructions to the production manager to say and make all these people to work in safety. I no supervising, I no checking every single command of their, every single word. 148 It was undoubtedly the case that it was only Mr Alvarez and Mr Hair who were present to perform the lifting of the steel plate on 20 May 2006; they were not subject to any direct supervision by a qualified dogman. It is also undoubtedly correct that neither Mr Alvarez nor Mr Hair possessed a certificate of competency in dogging work. 149 According to Mr Boardman's expert testimony, where a person is required to exercise judgment, inter alia, on how to sling a load, the person must possess a dogging certificate. Clearly, judgment was required to be exercised as to how to sling the load of the steel plate. Slinging a load is not confined to selecting the slings, but includes the manner in which the load is to be attached to the sling or slings. Further, Mr Boardman accepted that 'a person who holds a certificate of competency to operate a crane or hoist cannot sling or direct the movement of a load except where the holding of a dogging certificate is not required or the person holds a dogging certificate'. 150 It follows that the task of lifting the steel plate using the mobile crane on 20 May 2006 was undertaken in the absence of a person certified as being competent to perform dogging work. Prima facie, that constitutes evidence of inadequate supervision necessary to ensure Mr Hair's health and safety at work whilst lifting and moving steel plates. 151 There was evidence that Mr Alvarez was Mr Hair's supervisor in performing the lifting task. It was contended that Mr Alvarez was a person with a crane certificate and of considerable experience in the use of the mobile crane for lifting steel plates. But it was Mr Alvarez who advised Mr Hair to use the hooks that were on the crane to carry out the lift. One could hardly regard that as indicative of adequate supervision, given the risk that it created for Mr Hair. 152 I find that S&L failed to provide adequate supervision to its employees and, in particular Mr Hair and Mr Alvarez, as was necessary to ensure Mr Hair's health and safety at work whilst lifting and moving steel plates. Particular (e) is made out. Whether failures causative of risk 153 It is necessary to establish both a relevant 'failure' on the part of the employer and a 'causal nexus' between the conduct of the defendant and the consequent risk to the health, safety and welfare of its employees. In Newcastle Wallsend Coal Co Pty Ltd v WorkCover Authority (NSW) (Inspector McMartin) [2006] NSWIRComm 339; (2006) 159 IR 121 the majority (Walton J, Vice-President and Boland J; Marks J not dissenting on this point) stated in relation to causation: [301] As foreshadowed at the beginning of our discussion of failures, the parties made submissions concerning the relevant principles governing causation. The principles relating to causation in this jurisdiction are well settled: WorkCover v Kellogg (Aust) at 253; The Crown in the Right of the State of New South Wales (Department of Education and Training) v Maurice O'Sullivan (2005) 143 IR 57 at [41]-[51]; and State of New South Wales (NSW Police) v Inspector Covi [2005] NSWIRComm 303 at [25]-[33]. In summary: (a) As we noted above at [213], the Court held in WorkCover v Kellogg (Aust) (No 1) at 253 that it is necessary to establish both a relevant "failure" on the part of the employer and a "causal nexus" between the conduct of the defendant and the consequent risk to the health, safety and welfare of its employees. It is not necessary to demonstrate a causal connection between the conduct of the defendant and the precise circumstances of the accident which gave rise to the prosecution. (b) It is inappropriate to artificially confine the risk to one narrowly defined by reference to an accident with the benefit of hindsight. The danger repeatedly cautioned against of focussing too much attention on an accident is twofold: such a misguided focus can obscure the relevant risk, and it can also misdirect an analysis of causation ( WorkCover Authority of New South Wales v Kirk Group Holdings Pty Limited and Anor at [133]; see, for example, Haynes v C I & D Manufacturing Pty Ltd at 156-7). See also The Crown in the Right of the State of New South Wales (Department of Education and Training) v Maurice O'Sullivan at [32]-[40]. (c) The fact that a risk was not created by, or under the control of, a defendant is not to the point: The Crown in the Right of the State of New South Wales (Department of Education and Training) v Maurice O'Sullivan at [42] and [44]. An employer cannot escape liability by contending simply that it did not create the risk. (d) Causation has to be viewed in a common sense and practical way and is not decided as a philosophical or scientific question; see State of New South Wales (NSW Police) v Inspector Covi at [25] and The Crown in the Right of the State of New South Wales (Department of Education and Training) v Maurice O'Sullivan at [45]. (e) It is not necessary to find that the act or omission of the defendant was the cause of the risk arising but rather the question was whether the defendant's acts or omissions were a "substantial or significant cause [of the risk] viewed in a common sense and practical way" see The Crown in the Right of the State of New South Wales (Department of Education and Training) v Maurice O'Sullivan at [49]-[50]. (f) A risk to safety that exists independently of the defendant (such as a violent criminal) may increase or become more serious as a consequence of the employer's acts or omissions. In that way, the defendant's failure may materially contribute to the risk: see The Crown in the Right of the State of New South Wales (Department of Education and Training) v Maurice O'Sullivan at [49]. 154 As to the system of work failure, it is undoubtedly the case that if S&L had ensured compliance with a system of work which proscribed the use of hooks when lifting steel plates, the risk to Mr Hair's safety would not have arisen. The task required a pinch bar to lift the plate so that wedges might be inserted to enable four plate clamps and a spreader bar to be fitted. The use of open hooks to lift a steel plate 12 millimetres thick and approximately 5.48 metres long by 2.26 metres wide, created an obvious risk, manifesting itself in the injuries sustained by Mr Hair. 155 Similarly, the failure to provide adequate information, instruction and training meant that there was a risk that Mr Alvarez and Mr Hair would use open hooks to perform the lift, thereby creating a risk to safety. The failure to provide adequate supervision in circumstances where neither Mr Alvarez nor Mr Hair possessed certificates of competency in dogging work gave rise to a risk that they would employ unsafe methods in performing the task assigned to them on 20 May 2006. Conclusion regarding contravention of s 8(1) 156 I find that S&L contravened s 8(1) of the Act. DEFENCES 157 Section 26 of the Act provides for either of two defences, which in these proceedings were relevantly that Mr Santos and Mr Lorenzo as directors of S&L were not in a position to influence the conduct of the corporation in relation to its contravention of s 8(1), or that the two directors, being in such a position, used all due diligence to prevent the contravention by S&L. 158 The two defendants did not rely on the 'position to influence' defence but both relied on the 'due diligence' defence. 159 Mr D Chin, counsel for the prosecutor, submitted that the defence under s 26(1)(b) was not available to the defendants. He first referred to a number of 'principles': (i) the expression 'all due diligence' contemplates the demonstration of a director's mind "concentrated on the risks of the operation": State Pollution Control Commission v Kelly (1991) 5 ACSR 607 at 609; Inspector Ken Kumar v David Aylmer Ritchie [2006] NSWIRComm 323 at [177]; and Inspector Aldred v Herbert and others [2007] NSWIRComm 170 at [65]-[66]; (ii) "All due diligence" does not require as a minimum or threshold requirement that the directors have played a 'significant and hands on role' in the corporate defendant's operations or that they have responsibility for day-to-day decision making: Ritchie [2006] at [167]; (iii) the s 26 defences do not permit the avoidance of liability because of legitimate reliance on the expertise of others, particularly where the defendants adopt a passive role in relation to safety issues: Ritchie at [175]; see also Herbert at [61]; (iv) in WorkCover Authority v Daly Smith Corporation [2004] NSWIRComm 349, Staunton J held that the phrase 'all due diligence' was wider than 'due diligence' and that, in order to discharge the onus, the defendant had to establish on balance that he did all that was required to ensure the putting in place of a system of work designed to identify and manage the risks to safety at the employee's worksite. This required the director to ensure compliance with the established system of work by a process of reviewing and auditing, both formal and informal, in order to ensure that the safe standards established were in fact being adhered to and under ongoing review; (v) in Ritchie at [177]-[178] Haylen J accepted the thrust of the prosecutor's submissions (see at [151]-[153]) in relation to a defence under s 26(1)(b), such that the Court must be satisfied that the director had: (a) laid down a proper and appropriate system to provide against contravention of the Act; and (b) provided adequate supervision to ensure that the system was properly enforced and policed to achieve the regulatory outcome of preventing contraventions of the Act; (vi) A proper system does not necessarily require a director to be personally involved in having a detailed knowledge of every aspect of the relevant safety features, but it does require the director to be involved in the implementation and enforcement of fundamental safety procedures: Ritchie at [160] and [178]. 160 In relation to the evidence, Mr Chin submitted: (i) the defendants relied substantially upon their managers and supervisors, particularly Alvarez and Bloom, to supervise Hair to ensure that he performed work safely and complied with the written policy; (ii) a basic step in providing adequate supervision to ensure that the system was properly enforced would have been to ensure that the managers and supervisors on whom the defendants relied were themselves properly qualified to instruct Hair in dogging work; (iii) contrary to the defendants' record of employees' qualifications at the time neither Alvarez nor Bloom held dogging certificates as at 20 May 2006; (iv) despite this, the defendants permitted Alvarez to perform dogging work - to select lifting gear for, and move and lift, the full range of products produced at the premises; (v) the defendants also permitted Bloom and Alvarez to instruct Hair in the essential aspects of dogging work, namely the use of clamps to lift steel plates. In allowing unqualified personnel to do so, the defendants were inviting deficiencies in that training and instruction; (vi) Consequently, such deficiencies were manifested most significantly in: (a) Bloom showing Hair how to use open hooks to lift steel plates in order to place clamps on the plate, rather than by the use of a pinch bar, in direct contravention of the written policy; and (b) Alvarez directing or at least acquiescing in Hair using open hooks instead of clamps during the lift on 20 May 2006. (vii) in addition, the defendants failed to: (a) ensure that Hair was given a copy of the written policy, and instead simply relied on employees to take their own initiative to consult a copy in the foreman's office; (b) ensure that the content of Hair's induction and training conformed to the written policy, or to take any steps other than to issue a general instruction that Hair should be trained in how to perform his work; (c) ensure that Hair read or was instructed in the contents of the WorkCover Dogging Guide 2003, 6th edition, which Lorenzo asked his managers to distribute; (d) ensure that a qualified third person supervised or observed Hair assisting Alvarez in respect of the mobile crane to ensure compliance with the written policy - either on each lift or on a random basis. 161 It was also submitted by Mr Chin that there was an obligation on the defendants to actively seek information from managers and supervisors as to any instances of non-compliance with the written policy. However, it was submitted, despite the practice adopted by some employees of lifting steel plates with open hooks at least to some degree of height, both Mr Lorenzo and Mr Santos were unaware of that practice, or that Mr Hair had been instructed in that method; neither Mr Lorenzo nor Mr Santos took the simple step of asking Mr Jung or Mr Bloom whether this practice occurred at the premises. Had they done so, it was submitted, and had they become aware of this dangerous practice, they rightly would have taken steps to stop it from occurring. 162 Counsel submitted that the defendants' failure to make positive and active enquiries of Mr Bloom and Mr Jung of the actual lifting practice adopted at the premises was a critical manifestation of a failure to provide adequate supervision to ensure that the system was properly enforced. 163 It was further submitted that the defendants also failed to implement a system requiring both vertical-lift and horizontal-lift plate clamps to be available on the mobile crane; nor was there a system in place requiring at least four plate clamps (of any kind) available on the mobile crane. For the horizontal lifting of steel plates qualified dogmen were trained in the recommended method of using a minimum of four plate clamps and a spreader beam. 164 Mr M Moir of counsel for the defendants also sought to distil a number of principles regarding 'all due diligence'. After referring to a number of authorities (Slivak v Lurgi (Australia) Pty Ltd (2001) 205 CLR 304 at [91] per Callinan J; Ritchie at [170] and [177]; Tesco Supermarkets Ltd v Nattrass [1972] AC 153 at 194 per Lord Diplock, at 174-175 per Lord Reid, at 177 per Lord Morris and at 194 per Viscount Dilhorne; Universal Telecasters (Qld) Ltd v Guthrie (1978) 18 ALR 531 at 534 per Bowen CJ; Adams v ETA Foods Ltd (1987) 78 ALR 611 at 620 and 627 per Gummow J; State Pollution Control Commission v Kelly (1991) 5 ACSR 607; Powercoal Pty Ltd v Industrial Relations Commission of NSW at [112] per Spigelman CJ; Inspector James v Sunny Ngai [2007] NSWIRComm 203 at [127]; WorkCover Authority of NSW (Insp Dowling) v Coster [1997] NSWIRComm 154), Mr Moir identified the following principles regarding the application of the defence in s 26(1)(b): (i) the defence recognises that an individual director should not be held criminally responsible unless that individual was complicit in the contravention; (ii) due diligence requires a systematic approach to compliance with particular regulatory schemes (see paper delivered by Mark Cahill at Bar Association CPD, 26 February 2009, "Prosecuting Directors and Officers under the Occupational Health and Safety Act 2000 (NSW), including a review of s.32A of the Act" at p 38); (iii) a proper and suitable system – that is one designed to achieve compliance – must be implemented (including training and supervision); (iv) mere 'paper compliance' does not amount to exercising due diligence; (v) there must be genuine efforts to enforce the system - due diligence requires a process of review and auditing, both formal and informal, to ensure compliance with the safe standards established; (vi) the mere fact that the system implemented (including supervision) breaks down due to human error does not establish that the system is defective, or that this situation ought to be attributed to the directors or to be regarded as the action or failure of the directors themselves for which they are to be criminally liable and responsible – otherwise, the defence would prove illusory; (vii) the defence may be established where the contravention was due to a cause beyond the director's control, and he or she took reasonable precautions to avoid the contravention; (viii) it may be a reasonable step for a director to require an experienced employee to supervise the activities of a less experienced worker whose physical acts may, in the absence of supervision, result in that being done which it is sought to prevent - this is not to delegate the director's duty to exercise all due diligence, it is to perform it; (ix) to treat the duty of a director to exercise all due diligence as unperformed unless due diligence was also exercised by all employees to whom he had reasonably given all proper instructions and upon whom he could reasonably rely to carry them out, would be to render the defence of due diligence nugatory and so thwart the clear intention of Parliament in providing it; (x) the focus is on the conduct of the individual director, as distinct from the conduct of the corporation. 165 Applying those principles to the evidence in this case, counsel submitted: Particular (a) – failure to ensure compliance with safe system of work Mr Santos and Mr Lorenzo were at the peak of a hierarchical system which was responsible to ensure the safety of work performed at the company and, as such, they had to rely to a significant extent upon the activities of others. The defendants took an active role in the development of site safety policies and procedures, and took an active role in the development of the site safety committee. The defendants took it upon themselves to develop a safe system of work for the lifting and moving of steel plates prior to the accident. This evidence demonstrates that the defendants were mindful of the likely risks arising from the task, and developed a system of work to minimise those risks. In conjunction with an external safety consultant, they considered all of the factors that might have impinged on the safety of employees regarding lifting steel plates, and took appropriate steps to address those factors. The defendants, in particular Mr Lorenzo, were personally involved in communicating and re-iterating the safe working procedure for the lifting of steel plates to employees, through the regular tool box meetings held at the workshop. The defendants relied upon a number of experienced managers and supervisors engaged in the workshop area to ensure compliance with the established procedure, including Mr Palejko, Mr Jung, Mr Bloom and Mr Alvarez. The general tenor of Mr Lorenzo's evidence was that he gave a general instruction to his production manager, workshop foreman and supervisors to train and instruct Mr Hair in relation to safe lifting in conformity with his instructions at the toolbox meetings. He also gave evidence about the weekly meetings held between the defendants and the supervisory staff in which Mr Santos said: " plate clamps must be used at all times, do not use open hooks ". Mr Santos spoke similarly with Mr Alvarez prior to 2006. The defendants clearly relied upon Mr Alvarez's considerable experience for him to properly supervise Mr Hair in the safe conduct of simple lifting tasks. The defendants did not tolerate any practice of using open-ended hooks to perform lifting of steel plates. Any such practice was completely at odds with Mr Lorenzo's instructions given at the regular toolbox meetings. The evidence shows that no person ever raised this issue with the defendants. The defendants were clearly not aware of any practice of open hooks being used to lift steel plates. It is not surprising, therefore, that neither of the defendants thought to raise an issue with any of the supervisors that they did not know to exist. Accordingly, it was beyond the capacity of the defendants to take any further steps in relation to the use of open-ended hooks to conduct lifting of steel plates because they were never made aware of any such practice and they never observed it themselves, despite being routinely present in the workshop. Mr Lorenzo was also personally unaware that Mr Jung had previously intervened to stop lifting to an unsafe height with hooks. However, this is an illustration that Mr Lorenzo's instructions were actively enforced in the workshop, rather than the opposite. Everyone engaged in the workshop knew that Mr Lorenzo's instructions were to be obeyed. The fact that there was a lack of diligence in following these instructions on 20 May 2006 (or any other prior occasion) does not mean that there was any lack of due diligence on the part of the defendants. The defendants took steps to ensure that training was provided to employees prior to the accident in the safe working method for lifting and moving steel plates. Although the system of work and the provision for supervision broke down on 20 May 2006, this was due to error on the part of Mr Alvarez and Mr Hair in that, contrary to known established procedure and ordinary common sense, they attached the two open-ended hooks to the steel plate. The evidence discloses a company culture driven by Mr Lorenzo and Mr Santos in which safety was a paramount consideration. The directors were not supine or consciously indifferent. The evidence shows that the controlling minds of the company considered all of the factors that might have impinged on the safety of employees in respect of lifting and moving steel plates, and took appropriate steps to address those factors. Each of the defendants, and in particular Mr Lorenzo, actively promulgated to the employees concerned the most critical elements of the company's safe system of work for lifting steel plates. If followed, those elements would have avoided the risks inherent in the task. Particular (c) – failure to provide adequate information The employees, in particular Mr Hair were given adequate information to control the risks connected with the task of lifting steel plate of the type involved on 20 May. In many instances, the information was personally conveyed by Mr Lorenzo to the employees, including Mr Hair, via the medium of the regular workshop meetings. Mr Hair and Mr Alvarez clearly knew what was expected of them, and that the adoption of Mr Lorenzo's instructions would have prevented the accident on 20 May. Particular (d) - failure to provide adequate instructions and training The defendants took reasonable steps to instruct Mr Hair and Mr Alvarez regarding the safe method for the performance of their work. The defendants took reasonable steps to provide adequate training to Mr Hair and Mr Alvarez in order that they could safely perform work of the type involved on 20 May 2006. Particular (e) – failure to provide adequate supervision It was a reasonable step for the defendants to instruct Mr Palejko, Mr Jung, Mr Bloom and Mr Alvarez to supervise the activities of Mr Hair whose acts in the absence of supervision may result in that being done which it was sought to prevent. The failure on the part of Mr Alvarez to properly supervise Mr Hair on 20 May 2006 does not mean that the defendants failed to take all reasonable steps to provide adequate supervision. The defendants had no reason to believe that Mr Alvarez was anything other than a competent and experienced crane operator, who was capable to supervise Mr Hair's activities in lifting steel plates. He had been observed by Mr Lorenzo to perform this role adequately on numerous prior occasions. 166 Defence counsel's identification of the relevant principles may be accepted as correct. However, the issue of whether the defendants have made out their defences under s 26(1)(b) is more problematic. There is no doubt that the defendants took the issue of safety seriously. As their counsel submitted, the defendants took an active role in the development of site safety policies and procedures and took an active role in the development of the site safety committee. They developed a system of work for the lifting and moving of steel plates prior to the accident and were obviously acutely aware of the danger of using open hooks, having proscribed their use unless their were lifting holes. 167 The defendants commitment to safety was exemplified by the regular, monthly tool box meetings, especially in relation to the use of the mobile crane for lifting purposes. The meetings were a forum for raising and discussing occupational health and safety and production issues, and in addition to Mr Lorenzo, Mr Palejko and Mr Jung, were attended by supervisors and workshop personnel. Mr Santos had initially attended the meetings, but over the years his attendance at the meetings was on a more infrequent basis. This was primarily due to Mr Lorenzo having responsibility for the fabrication/production side of the business, whilst Mr Santos was involved in the administrative aspect of the business. 168 The minutes of tool box meetings held in the lead up to 20 May 2006 were tendered into proceedings. The minutes for the Tool Box meeting held on 5 January 2006 provided: Tool Box Meeting: 05.01.06 Time: 12:30pm Personnel involved in meeting: Jaime, Pedro, Jung, Joseph Magio, Roy and Workshop Personnel The following discussion have been taken place during the meeting: ... Always remember safety first, be careful of Using mobile and over head crane. J.L said be care full to use all lifting equipment, use right capacity clamp- to lift, also mentioned be careful of all electric cables. 169 The minutes for the Tool Box meeting held on 7 February 2006 provided: Tool Box Meeting: 07.02.06 Time: 12:30pm Personnel involved in meeting: Jaime, Pedro, Jung, Joseph Magio, Roy, Eduardo, Javier and Workshop Personnel The following discussion have been taken place during the meeting: ... J.L mentioned: Always secure load. Not to stand in between load and jib of the mobile crane. It can cause accident, Always use right clamp to pick up. He mentioned very clearly If any employee think workplace is not safe they do not have to do the job, can tell foreman "is not safe" as safety come first. 170 The minutes for the Tool Box meeting held on 8 March 2006 provided: Tool Box Meeting: 08.03.06 Time: 12:30pm Personnel involved in meeting: Jaime, Pedro, Jung, Roy, and Workshop Personnel The following discussion have been taken place during the meeting: Pedro also mentioned take sufficient precaution to pick up heavy load. Do not throw welding wire any where in work shop. Return unused wire to store. Any body can fell over, that can cause major accident. While travelling with load with overhead crane. Always secure load, use right clamp, to pick up load, failing to do that. It can cause accident. Always use right clamp to pick up. 171 The minutes for the Tool Box meeting held on 4 April 2006 provided: Tool Box Meeting: 04.04.06 Time: 12:30pm Personnel involved in meeting: Jaime, Pedro, Jung, Joseph Magio, Roy, Javier and Workshop Personnel The following discussion have been taken place during the meeting: J.L said be care full to use all lifting equipment ... Warren said every body need to be careful, while they are working. If any body See something wrong to tell fellow worker. Pedro addressed to use any equipment safely all the time, apply common sense. If any body notice any hazard report it as early as possible to the foreman. 172 The minutes for the Tool Box meeting held on 4 May 2006 provided: Tool Box Meeting: 04.05.06 Time: 12:30pm Personnel involved in meeting: Jaime, Pedro, Jung, Joseph Magio, Roy, Eduardo and Workshop Personnel The following discussion have been taken place during the meeting: J.L mentioned to take sufficient precaution to pick up heavy load. He mentioned "Always secure load", Not to stand in between of load and jib of the mobile crane. It can cause accident. Always use right clamp to pick up. He mentioned very clearly Any employee of the organization has got right to refuse any order of his superior, if Employee think is that not safe. He emphasized, we have to do production, but safety Comes first. 173 Although Mr Hair was not recorded in the minutes as being in attendance, the minutes do record Workshop Personnel as having attended. Mr Hair's pay slips were tendered and revealed that Mr Hair was at work on each of the dates of the tool box meetings. Furthermore, Mr Hair stated that he had attended tool box meetings on occasion, and had also seen Mr Alvarez attend the meetings. 174 Mr Hair also recalled in his WorkCover Injured Persons Statement that Mr Lorenzo had told him to 'always secure load, not to stand in it between load and jib of the mobile crane, it can cause accident, always use the right clamp to pick up'. When Mr Hair was asked in the witness box where he had heard that, he said it was probably at tool box meetings, although he was not exactly sure. 175 Mr Santos maintained that in enforcing the company's lifting policy he had also had discussions with personnel on the need to use plate clamps. The following exchange occurred in examination in chief: Q. Do you recall having any discussions with personnel at the company about this issue? A. Yes. Q. Before 2006? A. Yes. Q. Do you recall how many discussions there were? A. Yes. I had a number of discussions with Pedro Palejko to make sure that plate clamps are used for lifting steel plates. Q. Could you just identify the people that you spoke to about lifting and securing steel plates prior to 2006? A. Pedro Palejko, the production manager, and Carlos Francisco, the rigging foreman. Q. What did you say to those gentlemen? A. I said that when plates are lifted plate clamps must be used at all times. Q. Do you recall what they may have said in response? A. They agree with what I said because this is the normal thing to do. Q. When did you have these discussions with Mr Palejko and Mr Francisco? In what context did you have these discussions? A. A number of times in the weekly meetings that we have, in the occupational health and safety meetings. Q. How often were those meetings held? A. Every week. Q. Who attended those meetings? A. The staff in the fabrication and construction. 176 And again, later in examination in chief: Q. Did you have any discussions with employees working in the workshop area about lifting steel plates between 1999 and 2006, as best as you can recall? A. Yes. When I go down to the workshop, I always like to go down to the workshop to see how things are going, and when I speak with the employees the same thing is instructed as well, when lifting steel you have to be careful with the way it is lifted. It is basically a continuous thing. Q. Can you recall any employees that you discussed this issue with? A. Warren Bloom. Q. Warren is the leading hand? A. Warren is the painter leading hand of the leading hand painting shop. Q. How many times do you recall speaking with Mr Bloom about this issue? A. A number of times. Q. Anyone else? A. To the foreman, Jung, Ronnie. Ronnie who is one of the oldest employees we have, the same thing. I like to transmit this thinking in the people that are working there. 177 The prosecution's main attack was in relation to supervision. The defendants conceded that they relied on a number of managers and supervisors engaged in the workshop area to ensure compliance with the established safety procedure, including Mr Palejko, Mr Jung, Mr Bloom and Mr Alvarez. However, reliance was placed on what Lord Diplock said in Tesco at 194: It may be a reasonable step for an employer to instruct a superior servant to supervise the activities of inferior servants whose physical acts may in the absence of supervision result in that being done which it is sought to prevent. This is not to delegate the employer's duty to exercise all due diligence; it is to perform it. To treat the duty of an employer to exercise all due diligence as unperformed unless due diligence was also exercised by all his servants to whom he had reasonably given all proper instructions and upon whom he could reasonably rely to carry them out, would be to render the defence of due diligence nugatory and so thwart the clear intention of Parliament in providing it. 178 The prosecution contended, however, the defendants had not 'done everything that [they] can reasonably be expected to do by supervision' (see Tesco per Lord Diplock at 194) because they did not ensure that the managers and supervisors on whom the defendants relied were themselves properly qualified to instruct Mr Hair in dogging work. It was submitted that despite the fact that Mr Alvarez did not possess a dogging certificate the defendants permitted Mr Alvarez to perform dogging work - to select lifting gear for, and move and lift, the full range of products produced at the premises. Moreover, that the defendants also permitted Mr Bloom and Mr Alvarez (both unqualified) to instruct Mr Hair in the essential aspects of dogging work. That led to Mr Bloom showing Mr Hair how to use open hooks to lift steel plates in order to place clamps on the plate, rather than by the use of a pinch bar, in direct contravention of the written policy, and to Mr Alvarez advising Mr Hair to use open hooks instead of clamps during the lift on 20 May 2006. 179 For all their commendable commitment to safety, their comprehensive policies and their reiteration of the prohibition on the use of hooks to lift steel plates, a flaw in the defendants' approach was to rely on supervisors who were not qualified to perform dogging work or to give instructions in relation to the carrying out of such work. It was very clearly the case that reliance was placed on Mr Alvarez to supervise and give instructions to Mr Hair but the defendants failed to ensure that Mr Alvarez was qualified to do so. 180 The defendants believed that Mr Alvarez and Mr Bloom held dogging certificate qualifications. That is what their records showed. The defendants' system of recording important qualifications was obviously defective; one would not have thought such a qualification would be recorded unless the actual certificate had been sighted. Given the close oversight by the defendants of all occupational health and safety matters, one would expect they would have ensured a proper system of checking qualifications, especially where the qualifications had implications for safety. 181 I note that in S&L's 'Management Policies & Operation Guideline Manual' under the heading 'Training' it provides as follows: The purpose of this procedure is to define the methods to be followed for ensuring that only trained personnel are engaged in any activity where the quality of the end product may be affected. … The requirements of this procedure are to be followed by all personnel in a management or supervisory position of S&L. … The overall responsibility of ensuring trained, (sic) the training of personnel used in an operation shall be of the Directors. … Training will be conducted by skilled and qualified personnel. 182 Whilst the foregoing requirements were directed at quality control, no lesser requirements could be expected to apply in relation to occupational health and safety. 183 I also note that SOP 17 required 'Certified people' to instruct operators in the use of lifting and securing devices. 184 It may well have been the case that Mr Alvarez was a competent crane driver and that the defendants had confidence in him both as a crane driver and as someone who could supervise another employee performing dogging work. But if Mr Alvarez was required, as the evidence indicates he was, to possess a dogging certificate in order to supervise lifts then the obligation on the defendants, as the directors of the company actively engaged in the day to day management of the company and architects of its occupational health and safety policy, was to ensure this was so. In not ensuring the proper qualifications were held by Mr Alvarez and Mr Bloom, thereby indicating the two men had satisfied the requirements for obtaining such qualifications, the defendants ran the risk that wrong instructions would be issued or there would be inadequate supervision of Mr Hair. That risk was realised. 185 I also accept the prosecutor's contention that the defendants failed to implement a system requiring both vertical-lift and horizontal-lift plate clamps to be available on the mobile crane. Further, there was no system in place requiring at least four plate clamps to be available on the mobile crane. As the evidence indicated, for the horizontal lifting of steel plates qualified dogmen are trained in the recommended method of using a minimum of four plate clamps and a spreader beam. 186 As noted by Haylen J in Ritchie, Staunton J in Daly Smith held (at [134]) that, in order to discharge the onus under s 26(1)(b), it had to be established, on balance, that the person: [D]id all that was required to ensure the putting in place of a system of work within DSC designed to identify and manage risks to safety in his employee's worksites. On that approach, I accept the submission on behalf of the prosecution that that is not done by merely hoping others would or could do what they were told, but also ensuring they have the skills to execute the job they are required to do and then ensuring compliance with that in accordance with the safe standards established. Compliance requires a process of review and auditing, both formal and random, in order to ensure that the safe standards established are in fact being adhered to and under ongoing review. 187 It was submitted for the defendants that no person ever raised this issue with the defendants; they were not aware of any practice of open hooks being used to lift steel plates. It was submitted it is not surprising, therefore, that neither of the defendants thought to raise an issue with any of the supervisors that they did not know to exist. 188 The defendants may not have been aware of the use of open hooks. However, they were unable to show that they had adopted a process of review and auditing that might enable them to ensure supervisors and managers were acting in compliance with S&L's written policy regarding the prohibition of using steel hooks to lift steel plates in the circumstances that occurred on 26 May 2006. The defendants placed much emphasis on the fact that they had written policies regarding the prohibition on open hooks, that they reiterated this policy regularly at tool box meetings and even advised individual employees not to use open hooks. The defendants obviously considered this to be an important safety issue. That being so, one would expect some form of auditing, even by way of casual inquiry, to ensure supervisors and managers were complying with the policy. But there was none. 189 The defendants had not done all that could reasonably be expected of them to prevent employees from doing anything which would result in the commission of an offence; they have not shown they used all due diligence to prevent the contravention by the corporation. 190 I find that the defendants have not made out defences under s 26(1)(b) of the Act. CONCLUSION 191 I find the offences proven with respect to failures (a), (c), (d) and (e) as particularised. 192 The matters will now be set down to hear and determine the issue of penalty and costs. ____________________________ 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.