Industrial Relations Commission New South Wales Medium Neutral Citation: Inspector Hall v Everwilling Cranes Pty Ltd [2011] NSWIRComm 52 Hearing dates: 18 April 2011 Decision date: 29 April 2011 Jurisdiction: Industrial Court of NSW Before: Haylen J Decision: A. In relation to Everwilling Cranes Pty Ltd (i) the defendant is found guilty of a breach of s 8(1) of the Occupational Health and Safety Act 2000 as particularised in the Amended Application for Order in Matter No IRC 344 of 2010 to which it has entered a plea of guilty; (ii) the defendant is fined the sum of $60,000 with half that sum to be paid to the prosecutor by way of moiety; (iii) the defendant is to pay the costs of the prosecutor in a sum as agreed or, in the absence of agreement, as ordered by the Court. B. (i) the defendant, Everwilling Cranes Pty Ltd, is found guilty of a breach of s 8(2) of the Occupational Health and Safety Act 2000 as particularised in the Amended Application for Order in Matter No IRC 345 of 2010, to which it entered a plea of guilty; (ii) the defendant is fined the sum of $60,000 with half that amount to be paid to the prosecutor by way of moiety; (iii) the defendant is to pay the costs of the prosecutor in a sum as agreed or, in the absence of agreement, as ordered by the Court. C. (i) the defendant, A W Edwards Pty Ltd, is found guilty of a breach of s 8(2) of the Occupational Health and Safety Act 2000 as particularised in the Amended Application for Order in Matter No IRC 346 of 2010 to which it entered a plea of guilty; (ii) the defendant is fined the sum of $100,000 with half that amount to be paid to the prosecutor by way of moiety; (iii) the defendant is to pay the costs of the prosecutor in a sum as agreed or, in the absence of agreement, as ordered by the Court. Catchwords: OCCUPATIONAL HEALTH AND SAFETY ACT 2000 - s 8(1) s 8(2) - pleas of guilty entered by two corporations - principal contractor engages specialist crane company - building constructed by lifting pre-cast concrete panels into place - during lifting of heavy panel crane fails - boom hits associated work platform and falls on nearby bus - employees and non-employees injured - failure by crane company to properly position crane and failure of supervision - failure to ensure pre-operational checks carried out and weight of panel checked - principal contractor fails to ensure crane company carried out checks of crane before work commenced - failure to ensure crane company followed its SWMS - serious breaches - general and specific deterrence - significant subjective factors for each defendant - both enter early pleas - both defendants without prior convictions and long history of safe working systems - responsibility taken for accident - prompt steps taken to address risks - good industrial citizenship and contrition demonstrated - fines imposed - both defendants having different responsibilities regarding lifting work yet approximately same level of culpability found - crane company found guilty of two charges arising from same incident - many common elements - principle of totality applied - fines adjusted Legislation Cited: Occupational Health and Safety Act 2000. s 8(1) s 8(2) Cases Cited: Newcastle Wallsend Coal Co Pty Ltd v WorkCover Authority (NSW) Inspector McMartin (2006) 159 IR at [584] Pearce v The Queen (1998) 194 CLR 610 Category: Principal judgment Parties: Inspector Craig Hall (Prosecutor) Everwilling Cranes Pty Ltd (Defendants in 10/344; 10/345) A W Edwards Pty Ltd (Defendant in 10/346) Representation: Mr R Reitano of counsel (Prosecutor) Mr D Jordan of counsel (Defendants in 10/344; 10/345) Mr B Hodgkinson SC (Defendant in 10/346) Criminal Law Practice, Legal Group, WorkCover Authority of NSW (Prosecutor) Sparke Helmore (Defendants in 10/344; 10/345) Henry Davis York (Defendant in 10/346) File Number(s): IRC 344 of 2010 IRC 345 of 2010 IRC 346 of 2010 Judgment 1The two defendants have entered pleas of guilty to prosecutions brought under the provisions of the Occupational Health and Safety Act 2000. Everwilling Cranes Pty Ltd ("Everwilling") has pleaded guilty to breaches of s 8(1) and s 8(2) of the Act. A W Edwards Pty Ltd ("AWE") has pleaded guilty to a breach of s 8(2) of the Act. 2Briefly stated, the essential facts are that AWE was the principal contractor for the re-development of the Leichhardt Bus Depot. The re-development involved the construction of a new bus-wash refuelling facility, office building, bus maintenance building and various associated works. The bus-wash was to be constructed using a number of pre-cast concrete panels that were to be lifted into place at the premises using a crane. AWE contracted with Everwilling for the installation of these pre-cast concrete panels. Under Everwilling's quote it was to provide not only a suitable crane and crew but also provide supervision for this work. 3In early May 2008 Everwilling attended the re-development premises and commenced this work but technical difficulties with one of the concrete panels led to the work being resumed six days later. On the second day the Everwilling crew was differently constituted with a new crane driver replacing the initial driver who had became unavailable. The supervisor was present. 4In the course of lifting the first concrete panel there was a shift in weight that destabilised the mobile crane causing it to lose control over the load. The crane's boom hit the ground and the mobile crane toppled over coming to rest with its rear position on the ground and the driver's cabin at almost right angles in the air. The load fell to the ground with the boom of the crane striking a nearby elevated work platform, a bus shelter and a bus being serviced in the shelter. The boom also struck and dislodged a steel stanchion that supported three large gas cylinders used to refuel buses. An employee working on the elevated work platform was required to jump to safety and was injured. There were two people attending to the bus in the service area and the driver of the bus was forced over the driving wheel as the boom crashed through the roof of the bus but the driver was able to jump out of the front window after the cabin of the bus sprang back after the initial impact. The bus driver suffered cuts and abrasions to his hands, back and right side of his neck and bruising and grazes to the front of his legs as well as suffering aches and pains in his lower back and a bulged disc. The person working on the elevated work platform was ready to jump from the platform when the crane's boom hit it and catapulted the worker to the ground. He landed on his head and suffered lacerations to his face, a bruised sternum and a fractured left wrist. 5The s 8(1) and s 8(2) charges brought against Everwilling were particularised in almost identical terms, being differentiated only by the terms of the provision under which the charges were brought. It is therefore convenient to set out the s 8(1) charge against Everwilling: (Everwilling) FAILED TO ensure the health, safety and welfare at work of all its employees and in particular, Leslie John Hyde, contrary to s 8(1) of the Act. The particulars of the charge are that: (a) The risk was the risk of a mobile crane tipping over and striking or crushing people whilst it was being used to move concrete panels. The particulars of the acts of omissions in failing to eliminate the risk are that: (b) The defendant failed to ensure the mobile crane was positioned in a place which was at or within a safe distance from the place to which the concrete panel(s) was/were to be lifted so as to be within a safe working radius for the crane given the weight of the concrete panel(s) to be listed such that it could lift the concrete panel(s) without risk of the crane overturning during the lift. (c) The defendant failed to provide adequate supervision in that the defendant's supervisor did not specifically check with the driver of the mobile crane that he had: (i) conducted the pre-operational checks recommended by the manufacturer for the mobile crane; (ii) checked the weight of the concrete panel(s) to be lifted by lifting the concrete panels(s) and confirming its/their weight on the crane's computer; (iii) confirmed, by reference to the weight of the concrete panel(s) and the load charts associated with the crane, that the crane was positioned within its safe working radius and could lift the concrete panel(s) so that the risk was eliminated. As a result of the defendant's failure and omissions Jamie Henderson, Craig Page, Stephen Bateup and Leslie John Hyde were exposed to risk. 6In relate to AWE, the charge as particularised was as follows: (AWE) FAILED TO by its acts or omissions particularised below, ensure that persons not in its employment and in particular, Leslie John Hyde, Rachhpal Sing and Trent James Manson, were not exposed to risks to their health and safety arising from the conduct of the defendant's undertaking while at the defendant's place of work contrary to s 8(2) of the Occupational Health and Safety Act 2000. The particulars of the charge are that: The particulars of the risk are that: (a) The risk was the risk of a mobile crane tipping over and striking or crushing people and injuring people nearby whilst it was being used to move concrete panels. The particulars of the acts or omissions in failing to eliminate the risk are that: (b) The defendant failed to ensure that its sub-contractor, Everwilling Cranes Pty Ltd ("Everwilling") had a supervisor present who in fact directed employees to: (i) undertake relevant calculations and measurements of any load to be moved, the length and the angle of the boom during the lift and the radius of the lift to ensure they positioned the crane where it operated within its safe working limits; (ii) ascertain and assess the weight of the load to be lifted: (iii) undertake pre-operational checks on the automatic crane stopper/automatic movement limiter; (iv) check and ensure compliance with the Safe Work Method Statement that the defendant reviewed prior to the commencement of work at the premises. (c) The defendant failed to monitor the activities of Everwilling so as to ensure that it was working in accordance with the Safe Work Method Statement that had been submitted to the defendant. 7In each matter an Agreed Statement of Facts was tendered that was further amended at the commencement of the sentencing proceedings to reflect the substance of the relevant matters in both cases and to ensure that there was no materially different fact in each case. Although there is no dispute that the two statements of Agreed Facts are not materially different, the necessary difference in structure reflecting the concentration on the particular acts and omissions of different defendants suggests that it is prudent that both documents appear as an annexure to this judgment with the facts in Everwilling appearing first, followed by the facts in AWE. 8In the Everwilling case, apart from the Agreed Statement of Facts, the evidence for the prosecutor consisted of the following: a number of photographs taken by a WorkCover Inspector showing the work site, the final resting position of the mobile crane, the damage to the bus and refuelling shed as well as photographs of the pre-fabricated concrete slabs that were being moved and in particular the green label attached to the concrete panel involved in the incident showing a weight of 7.9 tonnes, and DVR video snapshots of the bus during the incident; a factual inspection report prepared by a WorkCover Inspector; a manufacturers pre-operational checklist for the Kato mobile crane involved in the incident; an AWE Safe Work Method Statement ("SWMS") Review checklist dated 8 May 2008; a prior conviction certificate indicating that the defendant had no prior convictions; a safety alert prepared by the defendant arising from the accident acknowledging that the accident had the potential to kill many people and listing five steps of corrective action; and, two drawings relating to the concrete panel being moved, the earliest indicating a weight of 4.6 tonne and the amended drawing showing the same panel with a weight of 7.9 tonne. 9The prosecutor's evidence in relation to AWE, apart from the Agreed Statement of Facts, included the colour photographs, the DVR snapshots, the factual inspection report, the SWMS Review checklist dated 8 May 2008 documents that also formed part of the evidence against Everwilling and, in addition, an AWE report of events dated 14 May 2008; an AWE incident/accident investigation form dated 8 May 2008; a State Transit emergency incident report dated 8 May 2008; and, a prior convictions report indicating that the defendant in 1996 had been the subject of an order made under s 556A of the Crimes Act 1900 in relation to an offence alleged under 15(1). 10The evidence for Everwilling was provided by way of an affidavit sworn by Ms Linda Allen, the occupational health and safety manager for the defendant. Ms Allen had seven years' experience in relation to occupational health and safety relating to cranes and associated work and outlined her previous employment experience and qualifications including those related to occupational health and safety. She described the company as a family business involved in mobile crane hire and supplying crane lifting services. Her father, Mr Gordon Henderson, was the sole director of the company and had 41 years' experience in the crane industry while her brother, Mr Jamie Henderson, was the general manager. The company employed approximately 35 staff of whom 30 were crane drivers, dogmen and welders. The company currently operated nine cranes, four of which were owned with five being under lease purchase. All the cranes were subject to charges which formed part of the security for credit facilities used for the purpose of the defendant company's business. 11Ms Allen had a number of formal qualifications regarding safety, had attended a number of courses and kept herself informed of developments in the field. 12In approximately mid-March 2008 Mr Jamie Henderson had attended the site and assessed the size and type of crane required to perform the work and provided a quote to AWE. On the basis of that site assessment he had prepared a SWMS that was in evidence. 13Prior to the accident the system in operation included monthly inspections of all cranes carried out by a qualified mechanic who provided a completed record of the inspections. The mobile crane used at the Leichhardt bus depot involved in this incident had been inspected in mid-April 2008. All cranes were required to pass "CraneSafe" an industry recognised annual inspection of all aspects related to the crane and carried out by authorised CraneSafe inspectors. It was not compulsory in New South Wales for cranes to pass an annual CraneSafe inspection but the defendant company ensured that each of its cranes were subject to that annual inspection. The mobile crane involved in the incident had been inspected under this regime in mid-November 2007. 14Everwilling only employed experienced staff who had been assessed as competent by the WorkCover Authority to drive cranes and work as dogmen. A list of competencies was kept by the company and updated as needed. All staff underwent induction training that included an occupational health and safety component as well as specific components on crane inspection and the setting up and operation of cranes. The Everwilling safety induction manual, in operation since 2004, was in evidence. Ms Allen gave details of the induction training that had been completed for the crew that had manned the mobile crane at the bus depot on the date of the accident. Details were also provided of other training made available to the company's employees. It was noted that the company conducted random on site audits to ensure that staff were continuously monitored for competency and records were provided as to the regularity of that exercise. 15The manufacturer's manual was kept in the cabin of all cranes. The defendant company required crane drivers to complete a logbook check prior to operating a crane in accordance with the provisions of an industry approved logbook. In addition to the logbook checks, a copy of the pre-operational checks of the crane's computer was kept on the wall of the cabin of the Kato 50 tonne crane involved in his accident. 16Reference was made to the experience and qualifications of the crew who operated the crane on the day of the accident. Mr Page had approximately 20 years' experience driving mobile cranes (10 years with Everwilling) and had previous experience as a rigger with structural steel erections. He held an open crane driver's ticket, an advanced rigger's ticket, a dogman's ticket and a forklift ticket. Mr Bateup had 25 years as a dogman (7 years with Everwilling). He held a dogman's ticket, a C6 crane ticket and an intermediate rigger's ticket. Mr Hyde had over 20 years' experience as a dogman and rigger with over 20 years' experience "panel erecting" and 17 years' experience dogging associated with Kato 50 tonne mobile cranes. Mr Hyde had been "with" Everwilling for 15 years and held a work platform and dogging ticket. It was said that these employees had all worked with the Kato mobile crane on many occasions. Mr Page and Mr Hyde had been given a site induction by AWE. 17Ms Allen then spoke about the retrieval of the crane by Mr Jamie Henderson and the fact that the crane could still be operated even though the computer was not working. Mr Henderson had not experienced a continuing capacity to operate in such circumstances in 20 years of working with cranes of that type. Everwilling's usual computer technician, Mr Rigoni, was requested to attend the site and examine the crane's computer. A report prepared by Mr Rigoni stated that, upon his inspection of the crane's computer, he established that it had no power and when he inspected the main fuse he found it to be "blown." Upon replacing the main fuse the computer was found to be fully functional. Mr Rigoni had explained to Mr Henderson that it was possible to operated the 50 tonne Kato mobile crane while the computer was not functioning but it was impossible to extend the main boom beyond 25.4 metres "in this instance." The crane was subjected to another CraneSafe inspection and a further major inspection after it had been repaired. 18There were a number of improvements to Everwilling's systems following the accident. On 12 May 2008 a yard meeting of all staff was called and addressed by Mr Jamie Henderson. Staff were advised that the crane computer could fail and it was now known to be possible for the crane to be operated when the computer failed. Staff were told that they could not assume that the computer alarms would always work and that, on a regular basis, they needed to check that the computer was operating properly. If the computer was not working staff were to stop work and contact the office. They were advised to double-check the weight of any load using the crane's weight gauge and not to rely on paperwork alone. There was a discussion as to the importance of performing pre-operational checks on all cranes, load charts and working to safe working loads. In addition, in later May 2008, the defendant company produced its own safety alert which was distributed to all employees. As earlier indicated that document set out five steps of corrective action to be taken to prevent this type of accident re-occurring. The safety alert was then discussed at toolbox sessions which were attended by all employees. The employees were required to acknowledge that they understood the contents of the safety alert. WorkCover had also produced a safety alert concerning the prevention of overturning mobile cranes and in late August 2009 that was placed on the noticeboard, in the lunch rooms and distributed to all staff with their pay sheets. 19Of significance were the number of improvements to the SWMS adopted after this incident in relation to panel erection work. Everwilling now required a second member of the crane crew to check the pre-operational checks and to ensure that the logbook had been completed prior to commencing work. Ms Allen noted that there were now some 13 specified steps required to be undertaken for setting up the crane. Extra documents were now required under the improved SWMS in relation to a "two-hook operation." There was now an approach described as a "lift study" requiring documentary confirmation that the main hook could take 100 per cent of the load and the auxiliary hook could take 60 per cent of the load in accordance with industry standards. The extra documents included a diagram entitled "Tailing panels" that reinforced the requirement that panels must be kept in line with the superstructure of the crane. The improvements to the SWMS had been a continuing and evolving process. Staff were made aware of the changes at various stages, including through toolbox talks, acknowledgements and sign-off sheets. The improvements were to continue. 20The revised logbook checks had been approved by the Crane Industry Association of Australia and the company had created a daily operator crane inspection procedure document. There had been an improvement in the company's competency random inspection form to provide a more comprehensive list of inspections. It was noted that, between 2009 and 2011, there had been 37 competency random inspections carried out by the defendant. Regular practical assessments of crane operators continued and since their introduction in February 2009, the company had carried out 26 crane operator assessments. Everwilling had modified the Crane Industry of Australia assessment to meet its own requirements. It was also pointed out that, in addition to the training provided by the defendant company, employees also received training by the manufacturer. 21Ms Allen gave details of amounts spent on occupational health and safety, including external consulting, resources, equipment and staff training (excluding wages and staff) and noting that, between 2008 and 2010, annual sums of between $18,000 and $29,000 had been expended each year.. Everwilling had spent a considerable amount of money on equipment maintenance, including cranes, trucks and prime movers such that, between 2008 and 2010, approximately $340,000 to a high of approximately $400,900 had been spent by the company in this respect each year. In addition to these expenditures the company had made donations to the Westmead Childrens Hospital, the Sydney Childrens Hospital, Rotary, Miracle Babies (being a support service for premature and sick babies and their families) and Marine Rescue. Between 2008 and 2010 those charitable organisations had received more than $5,300 to a high of approximately $9,900 as an indication of yearly expenditure. 22Ms Allen spoke of the defendant company's good industrial relationship in the industry and in particular cited a reference provided by Mr Brian Parker, Assistant Secretary, CFMEU Construction and General Division, NSW Branch. Mr Parker was present in Court during the proceedings. Mr Parker was aware of the nature of the charges against Everwilling. He spoke of his 13-year knowledge of Mr Gordon and Mr Jamie Henderson and finding them to be of excellent character in his dealings with them and their management. He found them to be "diligent in occupational health and safety" and providing a leading standard in the mobile crane industry. They had helped the union in lifting standards of safety in that sector and provided very high standards of training in the industry for their employees. Employees were encouraged to raise safety concerns on a regular basis especially through the random audits and he had witnessed regular toolbox meetings conducted prior to commencement of work. He was aware of the amount of training undertaken by the company. Since the accident the company had increased the amount of safety training and toolbox meetings with their employees. Prior to the accident, Mr Parker described Everwilling as "the leader in their industry" in relation to occupational health and safety: based on discussions with Mr Jamie Henderson where he expressed his regret and concern about the accident and the positive attitude they have adopted towards learning from the experience and how they have embraced the opportunity to improve their safety system, Mr Parker believed that they were still industry leaders. The Operations Manager of Austral Precast Concrete Pty Ltd, the National Safety Manager of Meriton and the Construction Projects Manager for Hansen Precast Pty Ltd also provided references. All of them spoke highly of Everwilling's diligence in relation to safety and spoke of how their performance was something of a benchmark for the industry. 23Mr Hyde had not been able to work for some nine weeks after the accident and although he received workers compensation, this was substantially less than his usual take-home pay because of the significant overtime he usually worked. Everwilling made up the shortfall. Ms Allen spoke about Everwilling being a family business and that her father, brother and herself, on a personal level, had felt "awful" about the accident and expressed sorrow for the fear and distress experienced by the workers affected by the accident. They deeply regretted Everwilling's failures and particularised those failures in a way that reflected the charges brought against the company. Specifically, the company acknowledged those failures and breaches of the Occupational Health and Safety Act . On behalf of the company the family took full responsibility for its contribution to the accident and for the injuries and distress suffered by Mr Hyde, Mr Mason the bus driver and Mr Singh who was servicing the bus. Ms Allen stressed that Everwilling was committed to making sure that an incident of that type would not occur again. 24In the case for AWE, affidavits were provided by Mr John Devlin, project manager for AWE, Mr Tony Mylrea, project co-ordinator for AWE and Mr Paul Kiem who provided an expert's report in relation to the Kato mobile crane involved in the accident. 25Many documents were annexed to Mr Devlin's affidavit indicating the detail of the defendant's safety systems. As project manager, Mr Devlin was responsible for managing the financial and construction aspects of a particular project. He had been employed by AWE for approximately 33 years and had been a project manager for 25 years. He was the project manager at the Leichhardt bus re-development site. 26Mr Devlin traced the history of the AWE family company that was founded in 1921. Throughout the 1920s and 1930s the company undertook a wide range of commercial residential projects and several defence projects. The company was incorporated in 1940 and many landmark projects were undertaken in the period between the 1960s and 1980s. In the 1990s the company was involved with several notable Olympic projects and in more recent times had been involved in the construction of major undertakings such as the Epping to Chatswood rail stations, the Victor Trumper grandstand at the Sydney Cricket Ground and the Concourse at Chatswood. Family members who held the position of managing director were discussed and it was noted that, at all time, the company remained 100 per cent family owned. Reference was made to a 2010 study conducted by the Hay Group for BRW to rank Australia's most respected industry leaders. Participants were asked to nominate and rate organisations within their industries they most respected and AWE was considered to be the most respected industry leader in the construction sector. 27At the present time, AWE had 160 employees and engaged approximately 380 sub-contractors in what was described as a myriad of large scale construction projects in New South Wales. The employees included directors and project managers, site managers and foremen, project and site co-ordinators, cadets and apprentices, administrative staff, estimators and tradesmen. The sub-contractors engaged by AWE carried out demolition, excavation, piling and foundations, formwork and concreting, facade manufacture and erection, crane operations, electricians, mechanical services, plumbing, fire services, partitioning, ceiling and floor covering, and, painting. 28AWE had not previously been convicted of a breach of any occupational health and safety legislation. Mr Devlin spoke of the company placing paramount importance on the health and safety of its employees and those working at or visiting its construction sites. Senior management had a commitment to developing and maintaining safe working systems and conditions for all persons employed on its sites. The company had an occupational health and safety policy in operation since 1980 and in 1984, introduced an accident control policy to each of its worksites. In 1988 a hazard incident report and guide for site safety was distributed to all employees. A more formal occupational health and safety management system was introduced in 1996. 29AWE had been recognised in a number of ways. The company was a signatory to the construction industry memorandum of understanding 1998-2000 between the State Government and industry contractors. As a signatory the company stated its commitment to working in partnership and by the year 2000, to implement reforms in occupational health and safety and significantly improving the construction industry's safety performance for the benefit of employees and contractors. The company, in recognition for this involvement, received the construction safety achievement award for outstanding contribution to the industry and the development of safety management from WorkCover. In 2006 the company was awarded a Master Builders Association Excellence in Construction Award in the category of "Site Safety - Civil Construction" in relation to the Macquarie Park Station, North Ryde. Also in 2006 the company received a Federal Safety Commissioner's Award for Excellence in Occupational Health and Safety in recognition of an exceptional safety record in the face of significant hazards. 30Documents and commentary were provided in relation to AWE's corporate management system and its safety and environment procedures manual. The manual was kept on a public server and could be accessed by all employees. Mr Devlin also spoke of AWE's safety accreditation in 2005 by the New South Wales Department of Commerce and by the Federal Safety Commissioner (awarded in 2006 with full accreditation in September 2007). AWE had recently been re-accredited until 2013. The defendant company had been certified by BSI Management Systems as complying with the requirements of AS/NZS 8401: 2001. To maintain its accreditation, external audits were conducted approximately twice a year by the Office of the Federal Safety Commissioner under the Australian Government Safety Accreditation Scheme. The audits consisted of both random site visits and an examination of written procedures. AWE also engaged a company to conduct audits of its safety management systems and that was conducted by using site audits as well as reviewing paper systems. Under this audit approach the company was provided with an audit summary detailing the scope of the audit and the results. Evidence was provided as to the scope of the audit. 31Speaking of the implementation of the safety management system, Mr Devlin said that every company employee had a given role. Each project had a project manager and site manager and they were responsible for ensuring compliance with the safety management systems on that particular site or project. AWE had a dedicated safety and environment manager whose role was to oversee the implementation of the safety management system on all sites and all projects. Approximately every six weeks a project managers' meeting was held and there was a discussion of safety and the environment. In these meetings the safety and environment manager discussed issues arising from all projects relating to safety during the previous six weeks and provided project managers with a report setting out relevant safety information. Mr Devlin also spoke about the use of safety alerts and toolbox talks as well as training provided in accordance with the safety and environment procedures manual. 32Speaking about on site safety, Mr Devlin noted that AWE was generally the principal contractor on site and it typically required other contractors to provide an undertaking that they would comply with the company's safe management systems. On larger projects involving 20 or more AWE employees, a site safety committee would be established in order for the company to identify site risks and as a mechanism for consulting with employees and contractors about those risks. Site committees were generally comprised of AWE employees and contractors. Since 1996 risk assessments had been conducted by the project manager at the commencement of the project on each AWE site and site managers had been required to complete daily hazard and observation sheets. Risk assessments provided details about sub-contractor responsibilities and safe work procedures and identified tasks on site and the safe procedures for carrying them out. Daily hazard and observation sheets were used by site managers to make recommendations for rectifying identified hazards, setting out the person responsible for undertaking the task and indicating whether the person had been informed of the action needed. Once completed the sheets were signed off. Every month site managers were required to complete self-verification checklists to assess compliance with the safety management system on a particular site. The checklists were sent to the safety manger for review to ensure that the company was compliant with all relevant health and safety requirements. 33The Leichhardt Bus Depot re-development project involved the erection of a new bus wash to be constructed of pre-cast concrete panels. The panels were required to be lifted into place by crane. Mr Devlin stated that AWE was not experienced or qualified in the operation of cranes and accordingly, engaged the services of a specialist crane company. Everwilling were selected for this task because they were specialists in the installation and removal of pre-cast and tilt-up panels, provided a job site analysis and comprehensive site specific risk assessments, were committed to occupational health and safety and had a comprehensive occupational health and safety management system. Under the arrangements between AWE and Everwilling, Everwilling was to supply the crane, qualified operators and a supervisor for the installation of the panels. 34Prior to the commencement of the work by Everwilling, Mr Jamie Henderson, a supervisor, attended the site. Mr Devlin and Mr Henderson then toured the site with the site manager, Mr Whitmore. During this visit Mr Henderson undertook an assessment of the work to be performed by Everwilling and determined where Everwilling would set up its crane to perform the relevant lifting work. Prior to allowing Everwilling to commence work on the site, AWE made sure that it had a written SWMS and that all Everwilling employees had been inducted onto the site and had read and understood that statement prior to commencing work. 35The Everwilling crew with the Kato 50 tonne mobile crane first attended the site on 2 May 2008 and successfully lifted and installed several pre-cast panels. On that day the crew included Mr Jamie Henderson who was a qualified rigger. During the installation one of the panels did not fit correctly and was removed to enable it to be core drilled. On 8 May 2008 an Everwilling crew again attended, including Mr Jamie Henderson. On this occasion Mr Page was the qualified crane driver and he was inducted to the site. Mr Page was a crane driver holding crane driver and rigger qualifications. After the accident Mr Devlin became aware that Mr Page said that he did not usually work as a crane driver. This was not conveyed to AWE and under its agreement, Everwilling was to supply a qualified crane driver. Before the Everwilling crew commenced work on 8 May 2008, Mr Jamie Henderson conducted a toolbox talk but there were no AWE representatives present and there was no expectation that such presence was required. After the toolbox talk the Everwilling crew set up the cranes. 36The crane was set up in a different direction to that had been chosen on 2 May 2008. The first lift involved panel A 12 weighing 7.9 tonne according to documents provided by the manufacturer (Hansen Precast Pty Ltd) and according to the large green tag attached. The panel was almost in place when the crane tipped over. Mr Devlin emphasised that AWE did not and still does not have any specialist knowledge of cranes but relied upon the expertise of Everwilling to select, set up and operate the crane. AWE had no reason to believe that Everwilling would not properly operate the crane. When Everwilling was performing this job, all AWE workplace safety procedures were in place. 37In summary, Mr Devlin pointed out that AWE had been engaged a principal contractor in the construction industry for 90 years and had never been convicted of a breach of safety legislation. That record was said to be due not only to the extensive safety systems in place but it also demonstrated the company's commitment to safety at all levels. It was stated that AWE was "contrite" about the incident and was committed to ensuring that its outstanding safety record was maintained in the years to come. 38Mr Tony Mylrea was a project co-ordinator employed by AWE and in that position was responsible for collecting information from a variety of building and construction consultants and distributing that information to relevant sub-contractors on a particular project. He had been employed by AWE for approximately 20 years and had worked in the roles of project co-ordinator and contracts administrator. In 2008 he was the project co-ordinator for the Leichhardt Bus Depot redevelopment project. As project co-ordinator he was required to ensure that the project architect and engineers' plans were communicated to all relevant sub-contractors. 39On 2 May 2008, Mr Mylrea was on site and at the site office. On that morning the Everwilling crane crew were setting up. Mr Mylrea had a conversation with a representative of Everwilling, Mr Branko Vuksinic, that caused Mr Mylrea to look at the floor plan and elevation drawings for the Bus Wash section of the project. At this stage he became aware that Mr Vuksinic was using an old version of the floor plan and elevation drawing. Mr Mylrea then photocopied the current and correct version of the drawing and provided it to Mr Vuksinic. The original drawing had the A12 panel weight as 4.6 tonne while the up-to-date drawing correctly stated the weight of the panel to be 7.9 tonne. My Mylrea stated that he was aware that Everwilling carried out the work pursuant to the new drawing as they installed the packers and the underside of the precast concrete panels which sat on the packers at a 20mm level, in accordance with the new drawing. 40Mr Paul Kiem was a director of Newstart Assessments Pty Ltd trading as Paul's Crane Inspections Pty Ltd. He had been asked to prepare a report for AWE concerning the crane failure at the Leichhardt Bus Depot project. In his report Mr Kiem made the following points: * the crane was fitted with the ACS Kato manufactured computer system; * if the crane electrical system failed or the power supply to the computer failed (eg blown fuse), the ACS would appear blank and the crane should stop working and sound an alarm under its fail safe system as described in AS 1418; * the crane would be operated without the ACS working by turning off the alarms and continuing to operate the crane with the ACS in override. A separate switch controlled the override. A crane driver operating without the computer was operating in manual mode and guided by the crane manufacturer's manual system of boom length and angle to calculate the radius of the hook. AS 1418 stated that where the boom length and angle was taken from an electronic device, mechanical systems shall be in place to confirm the accuracy; * photographs provided demonstrated those systems to be in place but the poor positions and locations of the photographs failed to determine the amount of boom that was extended at the time of the incident; * with the aid of the manufacturer's load handling duty charts kept in the operator's cabin, an operator could successfully operate the crane. However, the operator would not know the precise weight of the load and would either calculate the weight or refer to the supplier of the load for information of the weight. 41Mr Kiem gave evidence as to the ACS computer system noting that it limited the crane motions to the maximum rated capacity as described by the manufacturer's load handling duty charts. This information appeared on the front screen of the computer. The screen had a number of smaller screens and displayed the following: the rated capacity indicator; the rated capacity limiter; the load indicator; the radius indicator; and, the angle indicator. These electrical safety devices were designed to indicate to the operator that there was approaching danger. The operator could override the motion stop control of this safety device if required but the ACS would continue to sound alarms and indicate error and red lights on the display screen. An operator had little knowledge of the actual tipping moment while acting in this manner. Operating that way was not recommended and was not to the industry standard. All the safety devices and information, both electronic and manual, were designed by the manufacturer to provide the crane operator with enough information to prevent tipping and/or structural damage. In Mr Kiem's experience the crane would not have lost stability and fallen over if the ACS was working. He concluded that the operator must have overridden the ACS. DELIBERATION 42On a consideration of all the evidence, including the Agreed Statements of Fact in each matter, there can be no doubt that this was a serious breach committed by each of the defendants. The defendants did not argue to the contrary but drew attention to various matters that were said to mitigate against the seriousness of the breach. It is not necessary to go beyond the opening paragraph of the Everwilling Safety Alert issued after the incident as indicating the seriousness of the incident and its possible consequences: ... We recently had a crane tip over whilst directing panels. When the crane tipped over, the boom of the crane came into contact with an elevated work platform that had one of our employees in it, landed on high pressured gas bottles and went through the roof of a bus. Fortunately, our employee only sustained a broken wrist and various abrasions, the gas bottles did not explode and the bus driver only sustained minor cuts, as this accident had the potential to kill many people. 43It is disappointing that two highly respected participants in their own industry have to be found guilty of the breaches as particularised in each matter. Their status in their own industry does not come about by mere chance but is built upon a long and continuous period of operating safely in dangerous circumstances and thus establishing a reputation for professionalism and diligence in safety. Both defendants had comprehensive safety systems able to be implemented by trained and skilled employees. In different ways this accident exposed deficiencies in those systems and as a result placed a number of people at risk of either being seriously maimed or killed. 44Much has been said in recent times about how best to address workplace safety and informed debate will accept that there is no simple or single system that will promote safe work practices and act as a deterrent against safety shortcuts that arise from workplace pressures, economic difficulties, incompetence or inattention. After many years of the operation of safety laws, no employer can be ignorant of the dangers in their workplace and what they have to do to address those dangers in order to protect their workers and others who may be in the work area. Workplace safety is not a mere add-on or an optional extra: employees and non-employees alike are entitled to attend their workplaces without fear of injury and to expect to be able to return in good health to their families and communities at the end of each working day. Any system that strives to ensure that simple human right should not be rejected because in some quarters it is thought to represent a "Rolls Royce" system or is a system that is not economically viable. Industry is not more profitable, productivity is not increased and society is not advanced by workplace accidents or fatalities. It is significant that these two defendants were, for a very long time, able to operate in high risk industries without breaking safety laws. Unfortunately, they could not maintain that record. 45As already acknowledged, this workplace had inherent dangers having regard to the nature of the task. The placing of large and heavy concrete panels using a mobile crane presented a particular set of potential dangers that both defendants had addressed in detail. The employees of Everwilling and those working in the vicinity of the reach of the crane should normally have been satisfied, by their knowledge of the safety systems adopted by each defendant, that they would be safe in this work area. Two particular explanations have been put forward as being the root cause of the crane failing: firstly, the crane's computer system failed during the operation because of a blown fuse; or secondly, the crane driver overrode the computer system and thereby operated without knowledge of the true weight of the concrete panel. While both are possibilities, the Court does not feel it is in a position to conclude that either one of those possibilities has been established on the evidence. In addition, the Court is unable to find that Mr Page was not appropriately qualified to operate the crane. 46In relation to Everwilling, the failures of the defendant accepted by its plea of guilty were all measures that would normally be taken in accordance with existing safety rules. The placing of the mobile crane at an appropriate distance and within a safe working radius is as fundamental a practice as the supervisor specifically checking with the driver that he had conducted the pre-operational check, checked the weight of the concrete panels to be lifted and confirming it by reference to the weight of the panels, checking that the crane was positioned within its safe working radius and could lift the concrete panel. These are all simple and straightforward steps that could be easily taken and normally would be taken. 47AWE failed to ensure that Everwilling had a supervisor present to direct the employees to undertake the relevant calculations and measurements of the loads to be moved and all that went with that task, to ascertain the weight of the load to be lifted, to undertake pre-operational checks on the crane and to check and ensure compliance with the SWMS reviewed by the defendant prior to the commencement of work at the premises. There was also a failure to monitor the activities of Everwilling to ensure that it was working in accordance with the SWMS that had been submitted to the defendant. There was a failure to ensure that Everwilling undertook a risk assessment in relation to the positioning of the crane and undertaking the relevant calculations and measurements required and the risk assessment in relation to the operation of the crane by ascertaining the weight of the load to be lifted. Again, there was nothing unusual or unexpected about these measures and they were well within the defendant's normal mode of operation. In the case of each defendant it may be readily concluded that the risks alleged were foreseeable. 48In the evidence for AWE some emphasis was placed upon the fact that it did not regard itself as being experienced or qualified in the operation of cranes and that it is why it engaged the services of a specialist company to undertake the construction of the Bus Wash in the lifting and positioning of the concrete panels. Some emphasis was placed upon the fact that Everwilling was to provide not only the crane and qualified operators but also its own supervisor. These matters were significant aspects of the submission that Everwilling was culpable to a higher level than AWE in relation to this accident. 49A consideration of the charges against it, however, does not disclose directly or indirectly an allegation that AWE in some respects should have become a specialist in provision of crane services for this type of work. In undertaking its usual role as principal contractor, AWE has traditionally used many sub-contractors in recognition of the specialist skills available and the practicality of not attempting to do everything through vast numbers of direct employees. That method of operation does not require AWE to become an expert in all the fields of construction but it cannot step away from the important role it has as principal contractor. As such, it holds itself out as being a competent manager and knowledgeable in the field of construction. One of its obligations is to manage the sub-contractors and engage with them as to what they see as the risks of the work they are undertaking and inform such sub-contractors of the overall risks observed or assessed of the site operation by the principal contractor. As Mr Devlin noted in his evidence, as principal contractor, AWE typically required other contractors to provide an undertaking that they would comply with the defendant's safety management systems. Its corporate management systems, project manager meetings and reports, safety alerts and toolbox talks and training were all undertaken as a means of ensuring safety on the site. In relation to a specialist such as Everwilling, AWE, far from being required to become a specialist in the field of crane operation, was required to do no more than what was expected of a principal contractor and that is to ensure that its own safety systems were being complied with and that the SWMS supplied by the sub-contractor was being complied with. That was a central part of their role as principal contractor and project manager. 50A further submission for AWE, as indicated earlier, was that it bore a lower level of criminal responsibility in relation to this incident than Everwilling. Everwilling made no submission as to relative culpability. Having considered all the submissions and evidence, the Court is inclined to accept the prosecutor's submission that, broadly, there was a similar level of culpability to be borne by these two defendants. The fact is that they were engaged in different roles: AWE was the principal contractor and was obliged to ensure that Everwilling complied with its own SWMS and undertook a risk assessment; Everwilling, whilst having a supervisor present, failed to properly supervise and ensure that normal protocols were followed. Both roles were significant and either defendant could have taken steps, simple and well-known steps, that would have eliminated the risk. Both defendants had important roles to play in the work to be performed and the differences in their tasks and responsibilities, in these circumstances, does not translate into an assessment of markedly different levels of criminal culpability. 51In the case of each defendant general deterrence has an important role in the setting of an appropriate penalty. This accident represents another example of well-run, reputable participants in a high-risk industry failing to ensure safety by failing to follow their own safety directives. Once again, it emphasises the need for continuing diligence in ensuring that day-to-day work practices are established in accordance with well-established safety rules and taking the necessary steps to ensure compliance with those rules. In both cases, specific deterrence should play a more limited role. Both defendants have well deserved reputations for safety and this accident appears to be something of an aberration having regard to their long history. The evidence as to existing safety methods and the steps taken after this accident by both defendants persuades the Court to conclude that they are unlikely to offend in this way again. The evidence suggests that in both cases the defendants were shaken and shocked that such a serious accident could occur. 52The Court accepts the prosecutor's submissions, supported by the defendants, that in each case the guilty pleas may be accepted as early pleas qualifying for a high level of discount. The utilitarian value of the plea is properly regarded as being high as any fully contested hearing may have occupied a significant amount of time, especially in relation to technical operations of the crane and the computer system and precisely what occurred in this accident. The defendants will be allowed a discount on the penalty of 25 per cent on this basis. 53Both defendants present as first offenders with otherwise good safety records while operating in an industry with inherent dangers. They are both entitled to the leniency usually accorded such first offenders. Everwilling provided additional evidence as to its good corporate citizenship and referred to its financial support of worthwhile charities. It's standing as a safe employer was supported by impressive references from both the industry union and industry participants. In addition, Everwilling had financially supported Mr Hyde during his absence from work. The company, in its evidence, expressly accepted responsibility for this accident and its consequences and expressed the family's personal regret that people had been injured and that this accident had occurred. 54Mr Devlin, on behalf of AWE, expressed the company's contrition and regret for its involvement in this accident and spoke of the defendant's commitment to ensure that its previously outstanding safety record would be maintained in the future. The thrust of the evidence for AWE was that it was justifiably proud of its long record of safe participation in the construction industry and its concern that this accident took place. The Court is in no doubt that the effect of that evidence was that AWE took responsibility for its part in the accident and was determined to make sure this type of failure of safety systems did not occur in the future. Both defendants have identified considerable subjective factors that will be taken into account in mitigating the penalty. 55There is an additional issue in relation to Everwilling. The company has been charged under both s 8(1) and s 8(2) in recognition of the fact that both employees and non-employees were put at risk by its operations and injuries were suffered by an employee and a non-employee. While the legislature has nominated these as separate offences, the principle of totality requires the Court to give consideration to the overall penalty that should be imposed as representing the criminality of the offences. In this case the two offences were particularised in identical terms except for the status of the persons put at risk. Approaching each offence separately, the Court would impose a fine of $100,000 but on a consideration of the total criminality involved in the offences, would consider that the sum of $120,000 would appropriately reflect the overall criminality of the defendant. The significant number of common elements in both offences requires that level of adjustment (see Pearce v The Queen (1998) 194 CLR 610; Newcastle Wallsend Coal Co Pty Ltd v WorkCover Authority (NSW) (Inspector McMartin) (2006) 159 IR at [584] It would be appropriate, in those circumstances, for the sum of $120,000 to be equally divided between the two offences so that the defendant will be fined $60,000 in relation to each offence. ORDERS 56For the reasons discussed above the Court makes the following orders: A In relation to Everwilling Cranes Pty Ltd: (i) the defendant is found guilty of a breach of s 8(1) of the Occupational Health and Safety Act 2000 as particularised in the Amended Application for Order in Matter No IRC 344 of 2010 to which it has entered a plea of guilty; (ii) the defendant is fined the sum of $60,000 with half that sum to be paid to the prosecutor by way of moiety; (iii) the defendant is to pay the costs of the prosecutor in a sum as agreed or, in the absence of agreement, as ordered by the Court. B (i) the defendant, Everwilling Cranes Pty Ltd, is found guilty of a breach of s 8(2) of the Occupational Health and Safety Act 2000 as particularised in the Amended Application for Order in Matter No IRC 345 of 2010, to which it entered a plea of guilty; (ii) the defendant is fined the sum of $60,000 with half that amount to be paid to the prosecutor by way of moiety; (iii) the defendant is to pay the costs of the prosecutor in a sum as agreed or, in the absence of agreement, as ordered by the Court. C (i) the defendant, A W Edwards Pty Ltd, is found guilty of a breach of s 8(2) of the Occupational Health and Safety Act 2000 as particularised in the Amended Application for Order in Matter No IRC 346 of 2010 to which it entered a plea of guilty; (ii) the defendant is fined the sum of $100,000 with half that amount to be paid to the prosecutor by way of moiety; (iii) the defendant is to pay the costs of the prosecutor in a sum as agreed or, in the absence of agreement, as ordered by the Court. ANNEXURE AGREED STATEMENT OF FACTS (EVERWILLING CRANES PTY LTD) 1. At all material times the Prosecutor was an Inspector duly appointed under Division 1 of Part 5 of the Occupational Health and Safety Act 2000 ("the Act") and empowered under Section 106(1)(c) of the Act to institute proceedings in the within matter. 2. At all material times Everwilling Cranes Pty Limited (ACN 072 803 224) was a corporation whose registered office is situated at Level 1, 70A Burwood Road, Burwood, in the State of New South Wales ("Everwilling"). 3. At all material times, Everwilling was a corporation that undertook the business of mobile crane hire and crane operations. Everwilling's business comprised of hiring out cranes with crane crews for use on construction sites. Everwilling was incorporated on 9 February 1996 and has continued to trade since that time. 4. At all material times Everwilling conducted its business from premises located at 145 Woodpark Road, Smithfield in the State of New South Wales. It carried on its business at various construction and other sites throughout New South Wales. In May 2008 it employed approximately 30 to 35 staff. 5. The State Transit Authority ("STA") owned a site known as the Leichhardt Bus Depot located at Corner Derbyshire and William Street, Leichhardt, in the State of New South Wales ("the premises"). 6. The STA called for tenders to redevelop the premises, known as the Leichhardt Bus Depot Redevelopment ("the redevelopment"). The redevelopment involved the construction of a new bus-wash, refuelling facility, office building, bus maintenance building, external hardstand paved areas for bus storage, as well as a new slip-lane entrance to City-West Link, and related road works. 7. A.W. Edwards Pty Ltd ("AW Edwards") was the successful tenderer and became the principal contractor for the redevelopment. AW Edwards had control of the redevelopment and were responsible for engaging subcontractors to perform all relevant work associated with the redevelopment. 8. During the redevelopment, the premises were split in half by perimeter fencing. One half of the premises was controlled by the STA in order to allow the existing bus depot to continue to operate. The other half of the premises was under the control of AW Edwards to enable them to complete the redevelopment at the premises. A traffic management plan was implemented at the premises to ensure the safe operations of the existing bus depot. 9. AW Edwards, as part of its contract with the STA, was required to construct a bus wash at the premises. The bus wash consisted of 28 pre cast concrete panels that were to be lifted into place at the premises by a crane. The pre cast concrete panels were formed, poured and cast by Hansen Precast Pty Ltd ("Hansen Precast") and had accompanying paperwork relating to the weight and dimensions of the panels. 10. AW Edwards entered into a contract with Everwilling under which Everwilling was required to install the pre cast concrete panels for the bus wash at the premises. The quote Everwilling provided to AW Edwards on 12 March 2008 noted that supervision of the work by Everwilling was included in the quoted price. 11. On 2 May 2008 Everwilling attended the premises for the purpose of installing the pre cast concrete panels for the bus wash. Everwilling staff were given a site specific induction by AW Edwards. Everwilling supplied a Kato 50 tonne mobile crane ("the mobile crane") and crew for lifting and placing the panels of the bus wash. 12. On 2 May 2008 Everwilling attended the premises and commenced lifting the panels using the mobile crane. The crew consisted of Everwilling employees including Troy Scarrot, Branko Vuksinic, Stephen Christopher Bateup, Anthony Dalli and Andrew Dorahy. Mr Jamie Henderson, the Everwilling supervisor, was there for a short period of time. He was involved in starting the job off and giving instruction to the crew. Before he left the site on 2 May 2008, Mr Jamie Henderson issued to the Everwilling crew Hansen Precast drawing number R1327-001 (Revision 0 - 26 February 2008) which had been provided to him when he quoted for the job on 12 March 208. Mr Tony Mylrea, the AW Edwards Project Co-ordinator, says that he provided a revised version of the Hansen Precast drawing number R1327-001 (Revision A - 25 March 2008) to an Everwilling employee on the morning of 2 May 2008 13. Approximately 10 panels were lifted into place on 2 May 2008. Panel A12 was slung, lifted and landed on that day, however as it did not correctly fit, was removed to enable it to be core drilled. Panel A12 weighed 7.9 tonnes, according to documents (drawing number R1327-001 (Revision A - 25 March 2008)) prepared by Hansen Precast. However an earlier version of the drawing (drawing number R1327-001 (Revision 0 - 26 February 2008)) indicated that Panel A12 weighed 4.6 tonnes. The actual weight of Panel A12, being 7.9 tonnes, was written on a green label attached to the end of the panel. THE INCIDENT 14. Prior to 7:00am on 8 May 2008 the Everwilling crew arrived at the premises with the mobile crane. The crew consisted of the supervisor, Jamie Bernard Henderson ("Mr Jamie Henderson"), the crane driver, Craig Stewart Page ("Mr Page"), dogman, Stephen Christopher Bateup ("Mr Bateup") and panel erector, Leslie John Hyde ("Mr Hyde"). All of the members of the crew were employed by Everwilling. Mr Jamie Henderson and Mr Bateup had been involved in the erection of panels on 2 May 2008. Mr Page did not usually work as a crane driver, he usually performed the role of a dogman. 15. Mr Page was driving the mobile crane on 8 May 2009 as Troy Scarrot, the usual crane driver, was not at work. Mr Page drove cranes once or twice per month, filling in for crane drivers who were absent from work. Mr Page had driven the mobile crane on numerous occasions over the years without incident (SB 66). Mr Page held an open crane ticket which allowed him to drive any mobile hydraulic crane of any capacity (SB 61 and 62). Mr Page had experience in driving all mobile cranes owned by Everwilling (SB 81 and 86) and also held an advanced rigger's ticket and a dogman's ticket (SB 63). Mr Page had in excess of 20 years experience driving mobile cranes. 16. Mr Page was instructed by the dogman Mr Bateup where to locate the mobile crane. Mr Bateup located the mobile crane where he recalled it had been located on 2 May 2008. The area where the mobile crane was located was limited for space and was quite narrow. 17. On 8 May 2008 Everwilling's supervisor, Mr Jamie Henderson, arrived after the mobile crane had been set up. No tool box talk had been conducted before work was commenced. When Mr Jamie Henderson arrived he conducted a tool box talk. During this talk he went through Everwilling's Safe Work Method Statement for Panel Erection and it was signed off by the employees. The weight of the panels to be lifted by mobile crane was not discussed during the tool box talk or at any other time before work commenced. Mr Jamie Henderson checked the ground where the mobile crane was set up and considered it suitable. 18. Everwilling provides a logbook to its drivers to complete and record pre-operational checks 19. Prior to the first lift Mr Page undertook a number of crane pre-operational checks, including): a. checking ground stability, b. making sure the outriggers were out, c. making sure the crane was set level, d. checking the dunnage, e. checking the slew and luff functions, f. checking the paul brakes, g. checking the winches, h. checking the weather, i. checking the anti two block alarms on the hooks; j. making sure there was sufficient hydraulic fluid in the tanks He did not check the automatic load limiter or the automatic crane stopper. 20. Mr Page did not conduct all of the pre-operational checks for the automatic computer cut outs as recommended by the manufacturer in the operator's manual. A copy of the manufacturer's recommended pre-operational checks was affixed inside the cabin of the mobile crane to the left of the driver's position. The following pre-operational checks recommended by the manufacturer were not completed: a. Step 2 - Lower the hook onto the ground and set the boom at an angle of 10.0+0.1 degrees (boom must be located on the front). b. Step 3 - Set the boom operation selecting switch at !. Confirm that the front jack lamp flickers, the safety indicator and all ! lamps light up, "8.8.8" appears on all displays and an alarm is emitted. If a boom length and a boom angle are indicated instead of "8.8.8", boom length and angle should be set again. c. Step 4 - Derrick/lower the boom, hoist the winch and extend the boom in order to confirm that the crane does not move. d. Step 5 - Set the boom operation selecting switch at the desired working status, and confirm the status of outriggers and the outrigger setting status indicator lamp. 21. The mobile crane was fitted with a computer which could be used to weigh the load and would also provide visual and audible warnings when the crane was approaching the safe working limit ("SWL") for the load. In the event that a driver sought to continue to operate the mobile crane taking it beyond the SWL the computer would provide visual and audible alarms and then cut off hydraulic power to the mobile crane to prevent it from moving beyond the SWL (SB 226). Mr Page did not hear an audible alarm to indicate anything was wrong during the pre-operational checks or during the lift (CP 228). Mr Page did not check whether the alarms were working during the pre-operational checks. 22. On 8 May 2008 between 7:00am and 7:30am the mobile crane slewed to the right approximately 25 degrees and picked up the first lift of the day, which was panel A 12. The panel was slung by Mr Bateup, then the crane slewed left in order to land the load directly in front of the operator's cabin facing over the rear of the crane. At the time Mr Hyde was working on an elevated work platform ("EWP") and was to fit the panels once they were landed in place. 23. When the load was almost in place, approximately 100 millimetres from its intended destination (JH 118), there was a shift in weight that destabilised the mobile crane and caused it to lose control over the load. The mobile crane's boom hit the ground and the mobile crane toppled over. The mobile crane came to rest with its rear positioned on the ground and the driver's cabin at almost right angles in the air. The load fell to the ground with the boom of the mobile crane striking the EWP, a bus shelter and a bus being serviced in the immediate proximity on the grounds of the still in use STA bus depot. The boom also struck and dislodged the steel stanchion that supported three large gas cylinders that are used to fill the STA buses. 24. At the time of the incident Mr Rachhpal Singh ("Mr Singh") and Mr Trent Manson ("Mr Manson"), STA Heavy Vehicle Motor Mechanics, were working on the STA side of the premises. Mr Singh and Mr Manson were cleaning a bus in the bus wash bay. Mr Singh and Mr Manson had just completed washing the bus. Mr Singh was retracting the pressure water hose and Mr Manson had gotten on the bus in order to drive it to the bowsers. Mr Singh heard a loud bang and looked over his left shoulder and saw a concrete panel moving towards the bus and where he was standing, he noticed the boom of the crane was shaking. He thought something was wrong and the concrete panel was going to hit the bus. He yelled out to Mr Manson to get out of the bus and ran from the danger. He was about two and a half metres from the bus when he heard a loud bang. The front window of the bus smashed and his back was showered with glass fragments as he ran. Once he cleared the bus shelter he realised Mr Manson was still in bus and turned back. He saw Mr Manson jumping through the broken front windscreen of the bus and observed that the bus had been struck by the crane boom which was lying on top the bus. 25. Mr Manson recalled that he was in the bus when he saw the concrete panel falling and hit the colour bond roofing that covers the site's compressed natural gas storage cylinders. He then stood up in the driver's cabin and then the roof of the bus collapsed and hit his head and shoulders, squashing him into a crouch position onto the steering wheel. After the initial impact the roof sprung back up and he was freed. The front windscreen of the bus had been smashed out and he jumped out to get away from the danger. 26. Mr Manson suffered cuts and abrasions to his hands, back and right side of his neck, bruising and grazes to his front section and to upper front of his legs, aches and pains in his lower back and a bulged disc. After the incident Mr Manson had trouble sleeping, relived the incident constantly and had a terrible fear of cranes. 27. Mr Hyde, was working on the EWP at the time of the incident as his role was to install the panel that the crane was lifting. He observed the mobile crane lift the panel to about the height to install and slew a few degrees, he then heard yelling and screaming and could see that the mobile crane was lifting and rearing. He unhooked his lanyard and climbed on the side of the EWP which was elevated approximately 4 to 4.5 metres about the ground, and got ready to jump. The mobile crane's boom hit the EWP knuckle boom and catapulted Mr Hyde to the ground. He landed on his head and suffered lacerations to his face, bruised sternum and a fractured left wrist. Mr Hyde had nine weeks off work as a result of his injuries. SYSTEM OF WORK PRIOR TO THE INCIDENT 28. AW Edwards had in place an OHS management plan and site specific occupational health and safety project plan. The STA had provided information to AW Edwards in relation to all services at the premises, including the gas storage facility. 29. The agreement between AW Edwards and Everwilling provided that Everwilling were responsible for providing employees, equipment, lift operation and sequence, and supervision in relation to the installation of panels for the bus wash at the premises. Everwilling were responsible for the specialised work relating to the mobile crane. 30. AW Edwards was the principal contractor on site and was responsible for overall supervision at the site. 31. AW Edwards were to provide Everwilling employees with a site induction prior to commencing work at the premises. As part of the induction employees' qualifications to perform work requiring certification were viewed and checked by AW Edwards. On the date of the incident Mr Page, the mobile crane driver, had not attended the premises before and was provided with a general site induction by AW Edwards. He was not provided with information relating to specific hazards such as the ground conditions, services or hazards, such as gas bottles, at the premises. 32. Everwilling were required to provide and did provide AW Edwards with a job specific safe work method statement prior to commencement of work. AW Edwards reviewed the SWMS prepared by Everwilling before work commenced. 33. Prior to commencing work Mr Jamie Henderson completed a Safe Work Method Statement ("SWMS") and Job Safety Analysis ("JSA") for the crane operations. The document did not specify the precise crane positions for the set ups, nor did it mention proximity hazards, but it did cover issues including, but not limited to (Brief tab 7.5): a. Setting up the crane in accordance with manufacturers recommendations, b. Using the crane's cut out systems, c. Configuring the crane in accordance with manufacturers recommendations, d. Changing the configuration of the crane, e. Operating and dogging the crane, f. Working to the SWL of the crane, g. The dogman to act as a spotter, h. Checking for overhead power and underground services, and i. Lifting load into position. 34. On the day of the incident Everwilling did not ensure that the crane was located in the correct position to operate within its SWL to lift a concrete panel weighing 7.9 tonnes to its intended destination. Placement of the crane was not based upon any calculations, known information or in adherence to a developed system of work, but was based on Mr Bateup's recollection of where the crane had been positioned during the lifts that were undertaken on 2 May 2008. 35. On 2 May 2008 the mobile crane driver Mr Scarrott had no reference point for where he had positioned the crane prior to the first lift. As no construction had started he backed the crane in and set up based on the loads from the plans and the locations to which they had to go. Mr Scarrott noted there were a lot of pits and starter bars on the site. Mr Scarrott concluded that positioning was 'tight' and he put the crane where it could fit. 36. Mr Bateup was unaware of the safe working radius on 8 May 2008. As the panel had been previously lifted on 2 May 2008 he assumed the crane was within radius given the crane was set up in what he thought was the same position as on 2 May 2008. He did not ascertain the weight of the panel or measure the distance from the centre of the bull/slew ring to where the load was to be placed to obtain a radius prior to lift. Mr Bateup had assessed the hazards and associated risks prior to lifting the panel (SB 62). When interviewed on 20 January 2009, Mr Bateup stated that their usual procedure was for the crane driver to determine the weight of the panels through the weight and scales in the crane. That procedure was not followed on the day of the incident. 37. Mr Page did not ascertain the weight of the panel to be lifted prior to commencing the lift by checking it on the mobile crane's computer. The mobile crane's computer was capable of weighing the panel and displaying its weight, however Mr Page did not conduct this check. Mr Page did not take any other steps to identify what the weight of the panel was. Neither the supervisor, Mr Jamie Henderson nor anyone else specifically told Mr Page to check the weight of the panel before the lift commenced and, by reference to the weight shown on the crane's computer and the load charts associated with the crane, to calculate the safe working radius. Mr Jamie Henderson asked Mr Page if "everything was all right to start the lift". Mr Page responded "yes" but did not take any other steps to ensure that the position of the crane had been checked or the weight of the panel confirmed. Mr Jamie Henderson considered that the weight of the panel being lifted at the time of the incident was 4.6 tonne and considered that the crane was within its safe working radius. He determined this weight of 4.6 tonne from the drawing issued to him R1327-001 (Revision 0 - 26 February 2008). Mr Bateup had not viewed any document in relation to the dimensions or weight of the panels to be lifted, nor had anyone discussed the weight of the first lift with him. The weight of the panel being lifted was written on a tag attached to the end of the panel. 38. The exact length of the boom at the time of the incident is unknown. Mr Bateup advised he was unaware of how far the boom was extended. Mr Page thought he used a 32.7 metre boom. After the incident on 8 May 2008 WorkCover's Inspector Woodington measured the boom length as extended and it was approximately 38 metres. 39. Given the dimensions of the lift and the position of the crane, the mobile crane was operating out of radius and outside the SWL. When interviewed on 18 December 2008, Mr Page was unable to state what the safe working radius of the mobile crane was, or what the appropriate working radius was for the conditions at the premises. When interviewed on 28 January 2009 Mr Bateup was not aware of what load chart the crane was being operated from or what the working radius was. 40. In his interview on 12 January 2009, Mr Henderson stated that prior to the incident he considered the mobile crane to be positioned in the appropriate spot, but realised after the incident the crane was operating out of appropriate radius. After the incident Mr Jamie Henderson retrieved the crane and found the computer was not working. Even though the computer was not working, he found that he could still operate the crane. Mr Jamie Henderson advised that in his 20 years experience of being around Kato 50 tonne truck cranes (JH 130) he was unaware prior to this incident that the crane could be operated without the computer functioning. 41. Incorrect positioning of the crane was one of the factors which caused it to tip over. There was sufficient space to move the crane to a more appropriate place, however this was not done. A risk assessment would have disclosed this but no effective risk assessment was undertaken in relation to either where the crane should be located or in relation to the use of the crane more generally. 42. Prior to the incident Everwilling did not provide adequate supervision to ensure that the pre-operational checks of the mobile crane's computer, as recommended by the manufacturer in the operator's manual, were completed. Although he asked generally if Mr Page was right to proceed with the lift, Mr Jamie Henderson did not specifically check that Mr Page had checked the weight of the panel on the mobile crane's computer and, by reference to that weight and the load charts associated with the crane, had checked the safe working radius for the lift. 43. Everwilling's employees had received a general site induction for Leichhardt bus depot and signed off on the Safe Work Method Statement and pre job analysis. The site induction covered first aid, evacuation points, amenities and PPE but did not cover site specific hazards. SYSTEM OF WORK FOLLOWING THE INCIDENT 44. Everwilling reviewed their systems and provided retraining to all employees. Everwilling have communicated and reinforced the importance of operating the crane in accordance with the manufacturer's specifications and conducting all of the recommended pre-operational checks. 45. Everwilling have implemented a five-part checking process, to check electronically as well as manually the load weights prior to crane operation and lift, so as to ensure the crane operates within safe working radius which is contained in a safety alert issued on 23 May 2008 as follows: 1. When first arriving on site, the crew assess the work area for any site specific hazards, tool box talk the Safe Work Method Statement and note in writing any hazards identified that have not already been addressed in the Safe Work Method Statement. Once satisfied, the crane crew is to sign the Safe Work Method Statement confirming agreement to abide by the procedures therein. 2. Crane crew check the crane to ensure all items are in good working condition. Doubly check that the crane's computer is working correctly ie. Crane cut outs, weight gauges etc and fill out the log book, signing and dating it prior to commencing work. 3. The crane is set up within the safe working radius of the required lifts ensuring the ground is able to support the weights applied and adequate timber supports are used. If the crane is not able to safely perform the work STOP immediately and notify the Office . 4. Do not take for granted the weights of loads advised by other people - check the weight of each load using the weight gauge prior to their being and risk of being out of radius. 5. You do not attempt to do any more lifts from one set up than the crane can safely perform. SAVING ONE SET UP COULD COST ANY NUMBER OF LIVES. 46. Following the incident Everwilling completed a revised risk assessment, which improved details to the system of work and included site specific hazards. 47. Approximately twelve months following the incident WorkCover Inspector Chris Chadwick conducted a re-assessment of Mr Page's competency to operate mobile cranes and confirmed his competency and right to hold an open crane driver's ticket. ANNEXURE AGREED STATEMENT OF FACTS (A W EDWARDS PTY LTD) 1. At all material times the Prosecutor was an Inspector duly appointed under Division 1 of Part 5 of the Occupational Health and Safety Act 2000 ("the Act") and empowered under Section 106(1)(c) of the Act to institute proceedings in the within matter. 2. At all material times A.W. Edwards Pty Ltd (ACN 000 045 849) was a corporation whose registered office is situated at Level 2, 131 Sailors Bay Road, Northbridge, in the State of New South Wales ("AW Edwards"). 3. At all material times AW Edwards was a corporation that undertook the business of construction and fit out of commercial and industrial sites. AW Edwards was incorporated on 11 March 1940. 4. At all material times, Everwilling Cranes Pty Limited ("Everwilling") was a corporation that undertook the business of mobile crane hire and crane operations. Everwilling's business comprised of hiring out cranes with crane crews for use on construction sites. Everwilling was incorporated on 9 February 1996 and has continued to trade since that time. 5. The State Transit Authority ("STA") owned a site known as the Leichhardt Bus Depot located at Corner Derbyshire and William Street, Leichhardt, in the State of New South Wales ("the premises"). 6. The STA called for tenders to redevelop the premises, known as the Leichhardt Bus Depot Redevelopment ("the redevelopment"). The redevelopment involved the construction of a new bus-wash, refuelling facility, office building, bus maintenance building, external hardstand paved areas for bus storage, as well as a new slip-lane entrance to City-West Link, and related road works. 7. AW Edwards was the successful tenderer and became the principal contractor for the redevelopment. AW Edwards had control of the redevelopment and were responsible for engaging subcontractors to perform all relevant work associated with the redevelopment. 8. During the redevelopment, the premises were split in half by perimeter fencing. One half of the premises was controlled by the STA in order to allow the existing bus depot to continue to operate. The other half of the premises was under the control of AW Edwards to enable them to complete the redevelopment at the premises. A traffic management plan was implemented at the premises to ensure the safe operations of the existing bus depot. 9. AW Edwards, as part of its contract with the STA, was required to construct a bus wash at the premises. The bus wash consisted of 28 pre cast concrete panels that were to be lifted into place at the premises by a crane. The pre cast concrete panels were formed, poured and cast by Hansen Precast Pty Ltd ("Hansen Precast") and had accompanying paperwork relating to the weight and dimensions of the panels. 10. AW Edwards entered into a contract with Everwilling under which Everwilling was required to erect the pre cast concrete panels for the bus wash at the premises. The quote Everwilling provided to AW Edwards on 12 March 2008 noted that supervision of the work by Everwilling was included in the quoted price. 11. On 2 May 2008 AW Edwards had Site Manager, Mark Christopher Whitmore ("Mr Whitmore") who was responsible for general supervision at the premises. AW Edwards had eight other employees at the premises on that day. 12. AW Edwards ensured that each of the employees of Everwilling had undertaken a site specific induction, had obtained the general construction induction, that they were familiar with and had signed the Safe Work Method Statement, that there was a nominated Everwilling supervisor to supervise their activities and that relevant drawings for the task had been undertaken including information such as general panel weights and panel locations. 13. On 2 May 2008 Everwilling attended the premises for the purpose of erecting the bus wash. Everwilling were given a site-specific induction by AW Edwards. Everwilling supplied a Kato 50 tonne mobile crane ("the mobile crane") and crew for lifting and placing the panels of the bus wash. 14. On 2 May 2008 Everwilling attended the premises and commenced lifting the panels using the mobile crane. The crew consisted of Everwilling employees including Jamie Henderson, Troy Scarrot, Branko Vuksinic, Stephen Christopher Bateup, Anthony Dalli and Andrew Dorahy. 15. Approximately 10 panels were lifted into place on 2 May 2008. Panel A12 was slung, lifted and landed on that day, however as it did not correctly fit, was removed to enable it to be core drilled. Panel A12 weighed 7.9 tonne, according to documents provided by Hansen Precast. THE INCIDENT 16. Prior to 7:00am on 8 May 2008 the Everwilling crew arrived at the premises with the mobile crane. The crew consisted of the supervisor, Jamie Bernard Henderson ("Mr Jamie Henderson"), the crane driver, Craig Stewart Page ("Mr Page"), dogman, Stephen Christopher Bateup ("Mr Bateup") and panel erector, Leslie John Hyde ("Mr Hyde"). All of the members of the crew were employed by Everwilling. Mr Jamie Henderson and Mr Bateup had been involved in the erection of panels on 2 May 2008. Mr Page, who relevantly held qualifications as a crane driver, rigger and dogman, did not usually work as a crane driver, he usually performed the role of a dogman; however, this was not conveyed to AW Edwards representatives. 17. On 8 May 2008 Mr Whitemore, the AW Edwards Site Manager, ensured that all Everwilling employees had been site inducted and signed the Everwilling Safe Work Method Statement. 18. Mr Page was driving the crane on 8 May 2009 as Troy Scarrot, the usual crane driver, was not at work. After the incident on 8 May 2008, Mr Page told Inspector Hall that he drove cranes once or twice a week, sometimes not at all but it varied, filling in for crane drivers who were absent from work. 19. On 8 May 2008 Everwilling's supervisor, Mr Jamie Henderson, arrived after the mobile crane had been set up and the first load slung but before any lifting had begun. When Mr Jamie Henderson arrived he conducted a tool box talk. No tool box talk had been conducted before the crane was set up. During this talk he went through Everwilling's Safe Work Method Statement for Panel Erection and it was signed off by the employees. The weight of the panels to be lifted by mobile crane was not discussed during the tool box talk or at any other time before work commenced. Mr Jamie Henderson checked the ground where the mobile crane was set up and considered it suitable. 20. Prior to the first lift Mr Page undertook a number of crane pre-operation checks, including ground stability, outrigger placement, dunnage, and weather. He did not check the automatic crane stopper/automatic movement limiter. 21. Mr Page was instructed by the dogman Mr Bateup where to locate the mobile crane. Mr Bateup located the crane where it was located on 2 May 2008. 22. On 8 May 2008 between 7:00am and 7:30am the crane slewed to the right approximately 25 degrees and picked up the first lift of the day which was panel A 12. The panel was slung by Mr Bateup, then the crane slewed left in order to land the load directly in front of the operator's cabin, which was directly in front of the crane. At the time Mr Hyde was working on an elevated work platform (EWP) and was to fit the panels once they were landed in place. 23. When the load was almost in place there was a dramatic shift in weight that destabilised the crane and caused the crane to lose control over the load. The crane boom was driven into the ground and the entire mobile crane toppled over. The crane came to rest with the rear of the crane positioned on the ground and the driver's cab at almost right angles in the air. The load crashed to the ground with the boom of the crane smashing through the EWP, a bus shelter and a bus being serviced in the immediate proximity on the grounds of the still in use STA bus depot. 24. At the time of the incident Mr Rachhpal Singh ("Mr Singh") and Mr Trent James Manson ("Mr Manson"), STA Heavy Vehicle Motor Mechanics, were working on the still in use STA bus depot. Mr Singh and Mr Manson were cleaning a bus in the bus wash bay. Mr Singh was outside the bus, retracting a hose and Mr Manson was inside the bus about to drive it to the fuel bowser. Mr Singh suddenly saw a concrete panel moving towards the bus and the crane boom shaking. He yelled out to Mr Manson to get out of the bus and ran to get himself out of the way. He looked back to see Mr Manson jumping through the broken front windscreen of the bus and that the crane boom had landed on top of the bus. 25. Mr Manson recalled that he was in the bus when he saw the concrete panel falling. He stood up in the driver's cabin and then the roof of the bus collapsed and he was squashed in a crouching position over the steering wheel. The roof then sprang back and he was able to jump through the smashed front windscreen of the bus. 26. Mr Manson suffered cuts and abrasions to his hands and face, bruising to his legs, lower back pain and bulged spinal disks, as well as psychological injury. 27. Mr Hyde, was working on the EWP at the time of the incident as his role was to install the panel that the crane was lifting. He observed the crane lift the panel to about the height to install and slew a few degrees, he then could see that the crane was lifting and rearing. He unhooked his lanyard and climbed on the side of the EWP which was elevated approximately 4 to 4.5 metres about the ground, and got ready to jump. The crane boom hit the EWP knuckle boom and Mr Hyde jumped to the ground. He suffered lacerations to his face, bruised sternum and a fractured wrist. Mr Hyde had nine weeks off work as a result of his injuries. SYSTEM OF WORK PRIOR TO THE INCIDENT 28. AW Edwards had in place a detailed OHS management plan and site specific occupational health and safety project plan. AW Edwards had carried out risk assessments and job specific safe work method statements relating to the premises and maintained a presence at the premises to assist and provide overall supervision. 29. The agreement between AW Edwards and Everwilling provided that Everwilling were responsible for providing employees, equipment, lift operation and sequence, and supervision in relation to the erection of panels for the bus wash at the premises. Everwilling were responsible for the specialised work relating to the crane. AW Edwards was the principal contractor at the premises. AW Edwards undertook general supervision of the premises but did not supervise the work that was being undertaken by Everwilling. 30. AW Edwards provided Everwilling employees with a site induction prior to commencing work at the premises. As part of the induction employees qualifications to perform work requiring certification were viewed and checked by AW Edwards. On the date of the incident Mr Page, the crane driver, had not attended the premises previously and was provided with a general site induction by AW Edwards. 31. Everwilling were required to provide AW Edwards with a job specific safe work method statement prior to commencement of work. AW Edwards reviewed the SWMS prepared by Everwilling before work commenced. AW Edwards did not check that Everwilling complied with the SWMS when it was undertaking work at the premises. AW Edwards did not ensure that Everwilling conducted adequate risk assessments in relation to the use or placement of the crane. 32. Prior to commencing work Mr Henderson completed a Safe Work Method Statement ("SWMS") and Job Safety Analysis ("JSA") for the crane operations. The document did not specify crane positions for the set ups, nor did it mention proximity hazards, such as buses. 33. On the day of the incident Everwilling did not ensure that the crane was located in the correct position and was operating within its SWL. Placement of the crane was not based upon any calculations, known information or in adherence to a developed system of work, but was based on Mr Bateup's recollection of where the crane had been positioned during the lifts that were undertaken on 2 May 2008. 34. On the day of the incident AW Edwards did not ensure that Everwilling had a supervisor present who in fact directed Everwilling employees to: undertake relevant calculations and measurements of any load to be moved, the length and angle of the boom during the lift and the radius of the lift to ensure they positioned the crane so that it operated within safe working limits; ascertain and assess the weight of the load to be lifted; undertake pre-operational checks on the automatic crane stopper/automatic movement limiter; and check and ensure compliance with the Safe Work Method Statement that the defendant reviewed prior to the commencement of work at the premises. 35. On 2 May 2008, the crane driver Mr Scarrott had no reference point for where he had positioned the crane prior to the first lift. As no construction had started he simply drove the crane in and set up based on the loads from the plans and the location they had to go. Mr Scarrott noted there were a lot of pits and starter bars on the premises. Mr Scarrott concluded that positioning was 'tight' and he simply put the crane where it could fit. 36. Mr Bateup was unaware of the working radius on 8 May 2008. As the panel had been previously lifted on 2 May 2008 he assumed the crane was within radius given the crane was set up where he thought was the same position as on 2 May 2008. He did not measure the distance from the centre of the bull/slew ring to where the load was to be placed to obtain a radius prior to lift. 37. Mr Page did not undertake the pre operation check on the crane computer prior to commencing the lift. Mr Page and Mr Bateup both said they did not know the weight of the panel to be lifted. The crane computer would have provided information on the weight of the panel, however Mr Page did not check the computer. Mr Page did not take any steps to identify what the weight of the panel was. Neither Mr Henderson nor anyone else told Mr Page to check the weight of the panel before the lift commenced. Mr Bateup said he did not know the weight of the panel and that their usual procedure was for the crane driver to determine the weight through the weight scales in the crane. The supervisor, Mr Jamie Henderson, asked Mr Page if he was "okay", but did not take any steps to ensure that the position of the crane had been checked or the weight of the panel confirmed. Mr Bateup had not viewed any document in relation to the dimensions or weight of the panels to be lifted, nor had anyone discussed the weight of the first lift with him. 38. The exact length of the boom at the time of the incident was unknown. Mr Bateup advised he was unaware of how far the boom was extended. Mr Page thought he used a 32 metre boom. After the incident on 8 May 2008 WorkCover's Inspector Woodington measured the boom length as extended and it was 38 metres. 39. Given the dimensions of the lift and the position of the crane, the mobile crane was operating out of radius and outside the safe working load (SWL). Mr Page was unable to state what the safe working radius of the mobile crane was, or what the appropriate working radius was for the conditions at the premises. Mr Bateup was not aware of what load chart the crane was being operated from or what the working radius was. Mr Henderson considered that prior to the incident he considered the crane to be positioned in the appropriate spot but realised after the incident the crane was operating out of appropriate radius. Mr Jamie Henderson was of the opinion that the crane tipped over because the moment limiter failed to cut the crane out because it was out of radius. After the incident Mr Jamie Henderson retrieved the crane and found the computer was not working and even though the computer was not working he could still operate the crane. Mr Jamie Henderson advised he was unaware prior to this incident that the crane could be operated without the computer functioning. 40. The crane was set in a position that was too far away from the area where the panel was to be landed and this exceeded the SWL of the crane. This caused it to tip over. There was sufficient space to move the crane to a more appropriate place, however this was not done. A risk assessment would have disclosed this but no risk assessment was undertaken in relation to either where the crane should be located or in relation to the use of the crane more generally. 41. Prior to the incident no-one from AW Edwards ensured that Everwilling was providing adequate supervision during the set up and pre-operation checks of the crane and during the operation of the crane. AW Edwards did not ensure that Everwilling had a supervisor present who in fact provided adequate supervision during the set up and pre-operational checks of the crane and during the operation of the crane. 42. Everwilling's employees had received a general site induction for Leichhardt bus depot and signed off on the Safe Work Method Statement and pre job analysis. The site induction covered first aid, evacuation points, amenities and PPE. 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. Decision last updated: 29 April 2011