Industrial Relations Commission New South Wales Medium Neutral Citation: Inspector Estreich v P C Cranes Pty Ltd [2011] NSWIRComm 154 Hearing dates: 15 November 2011 Decision date: 23 November 2011 Before: Haylen J Decision: (a) the defendant, P C Cranes Pty Ltd, 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 451 of 2010, to which the defendant entered a plea of guilty; (b) the defendant is fined the sum of $65,000 with half that amount to be paid to the prosecutor by way of moiety; (c) the defendant is to pay the costs of the prosecutor in a sum as agreed or, in the absence of agreement, as ordered by the Court. Catchwords: OCCUPATIONAL HEALTH AND SAFETY ACT 2000 - s 8(1) - guilty plea entered flowing from case conferencing - dogman falls from height on construction site - fall from hoarding while removing formwork - failure to ensure risk of falling controlled by use of fall arrest device or stable and securely fenced work platform or by use of secure perimeter screens, fencing handrails or similar barriers - failure to instruct employees that risk of falling was to be controlled by use of the same means - serious breach established - general and specific deterrence considered - no prior conviction - utilitarian benefit of early plea - steps taken to address risk - defendant accepts responsibility for accident - penalty imposed - limited financial information provided regarding capacity to fully pay fine - suitable case for arrangements for payment of fine by installments Legislation Cited: Fines Act 1996 Occupational Health and Safety Act 2000 Cases Cited: Inspector Estreich v Ceerose Pty Ltd [2011]) NSWIRComm 50 Category: Principal judgment Parties: Inspector Phillip Estreich (Prosecutor) P C Cranes Pty Ltd (Defendant) Representation: R Reitano of counsel (Prosecutor) D O'Neil of counsel (Defendant) Criminal Law Practice, Legal Group WorkCover Authority of NSW (Prosecutor) Burston, Cole & Mulock (Defendant) File Number(s): IRC 451 of 2010 Judgment 1Inspector Estreich has commenced proceedings in this Court against the defendant, P C Cranes Pty Ltd, arising from a workplace accident in which an employee of the defendant fell approximately three metres and received significant injuries with an ongoing effect on his capacity to follow his usual occupation. 2This accident took place at a construction site in Alexandria. The principal contractor for the site was Ceerose Pty Ltd ("Ceerose") and Mr Edward Doueihi was its sole director and general manager. Ceerose sub-contracted the defendant to provide a crane and crew to perform general lifting at the premises. The defendant had performed these functions on several occasions prior to the accident that occurred in mid-June 2008. On that day the defendant provided a 35 tonne mobile crane and a crew of two consisting of Mr Tony Kuljanic, crane driver and Mr Peter Mackie, a dogman. Mr Mackie was in the course of lifting formwork material from a hoarding that faced the street when he fell and sustained a broken right heel that required an operation and the insertion of two pins. Mr Mackie also strained his left ankle. 3An Amended Application for Order particularised the breach of s 8(1) of the Occupational Health and Safety Act 2000 ("the Act") in the following manner: (The defendant) FAILED TO - by its acts or omissions as particularised below ensure the health, safety and welfare at work of all its employees and in particular, Peter Justin Mackie, contrary to section 8(1) of the Act The particulars of the charge are that: (a) The risk was the risk of falling from height. (b) The defendant failed to ensure that the risk to employees was controlled by: 1. the use of: i. a fall arrest device; or ii a stable and securely fenced work platform (such as scaffolding or other form of portable work platform); or iii secure perimeter screens, fencing, handrails other forms of physical barriers capable of preventing falls from height; or iv other forms of physical restraint that are capable of arresting falls from height. 2. Effectively instructing its employees that the risk of falling from height was to be controlled by the use of: i a fall arrest device; or ii a stable and securely fenced work platform (such as scaffolding or other forms of portable work platform); or iii secure perimeter screens, fencing, handrails or other forms of physical barriers capable of preventing falls from height; or iv other forms of physical restraint that are capable of arresting falls from height. As a result of the defendant's acts and omissions employees and in particular Peter Justin Mackie, was placed a risk or injury 4It is appropriate to note at this point that Inspector Estreich also commenced proceedings in this Court against Ceerose for a breach of s 8(2) of the Act and also against the company's director, Mr Edward Doueihi, for a breach of s 8(2) of the Act by operation of s 26(1). In those matters, each defendant entered pleas of not guilty but after the determination of a challenge alleging fundamental flaws in the charges against the defendants (a submission that was rejected by the Court), the defendants then entered pleas of guilty. The judgment of the Court in those matters is reported as Inspector Estreich v Ceerose Pty Ltd [2011]) NSWIRComm 50. 5At the sentencing hearing regarding the present matter the prosecutor tendered a bundle of documents comprising of: a Statement of Agreed Facts; photographs taken by an Inspector; a factual inspection report prepared by an Inspector; a copy of a Ceerose incidence/accident investigation form; a copy of a P C Cranes incident/near-miss investigation; a P C Cranes docket/tax invoice and pre-site job inspection checklists; a number of documents described as P C Cranes Company safety information; and, a copy of a P C Cranes OHSE management plan, including a risk assessment. Prior conviction records for the defendant company and a small operation commenced in 2003 were also tendered: those documents revealed that there were no relevant prior convictions. The Agreed Statement of Facts appears as an annexure to this judgment. 6For the defendant, three affidavits were read. Those affidavits were sworn by Mr Bruno Maviglia, the managing director of the defendant; Mr David Clouston, the occupation health and safety manager for the defendant; and Mr Jake Farragher, an occupational health and safety consultant engaged by the defendant. 7Mr Maviglia provided details of the company history and stated that he was 36 years old and a qualified crane operator. In approximately 2003 he had commenced his own crane hire business consisting of two cranes which he described as a small operation. In approximately 2007 he acquired part of the business of a large crane hire company, together with a number of its employees. The evidence would appear to suggest that the small operation commenced by Mr Maviglia in 2003 was combined with the larger business operation in 2007. At the time of the accident involving Mr Mackie, the defendant operated approximately fifteen cranes of various capacities and had thirty employees. 8A detailed profit and loss statement covering the financial years 2009 and 2010, together with a detailed balance sheet for both years was annexed to Mr Maviglia's affidavit. Those documents showed a loss of approximately $500,000 in 2009 and approximately $525,000 in 2010: those losses were incurred against a total income of approximately $6.5 m in 2009 and just over $6 m in 2010. The detailed balance sheet showed current assets of approximately $1.3 m in 2009 and nearly $1.5 m in 2010. The balance sheet indicated the total current liabilities were slightly less than the total current assets for 2009 but were in excess of total the current assets by approximately $145,000 in 2010. 9The company was said to have suffered "significant deterioration" during the global financial crisis with its position becoming "so dire" that Mr Maviglia said he was forced to sell a portion of the defendant company in early 2011 to inject capital into the business so it could be maintained, including maintaining work for some thirty employees. Despite this arrangement, the company was struggling financially and had difficulty meeting its financial obligations. Mr Maviglia was providing cash flow on a regular basis to ensure that the company survived. The company was frequently receiving statutory demands for unpaid accounts. Despite these difficulties, Mr Maviglia expressed confidence that the business would ultimately be successful. He was conscious that, if the company failed, apart from the effect on himself and his family, it would have a devastating effect upon the employees of the company and their families. 10The director's declaration accompanying the detailed balance sheet and the detailed profit and loss statements carried the following statement: In the director's opinion, there are reasonable grounds to believe that the company will be able to pay its debts as and when they become due and payable. 11That declaration was made by Mr Maviglia. The detailed profit and loss statements prepared by the defendant's accountants carried a note that the financial statements were unaudited and were to be read in conjunction with the accountant's attached compilation report and notes, both of which formed part of the financial statements. The accountant's compilation report stated that the accountants had compiled a "special purpose financial statement" regarding the defendant and the special purpose had been identified in a note attached to the financial statements. That note was not part of the documents tendered to the Court. The report continued by stating that the director of the defendant was solely responsible for the information contained in the special purpose financial statement and that they had determined that "the significant accounting policies adopted as set out in note 1 to the financial statements were appropriate to meet their needs for the purposes of the financial statements prepared." The context in which that statement was made, by reference to notes that were not before the Court, leaves that background unknown. 12In relation to the defendant's approach to occupational health and safety prior to the accident, Mr Maviglia noted that the company had retained an occupational health and safety officer, Mr David Clouston, after the expansion of the business in 2007. This appointment was made in light of the increased business then undertaken by the company and the need for a safety officer to oversee the company's responsibilities. Mr Clouston had implemented a documented safety system that had been overseen and approved by Mr Maviglia and had been implemented prior to the accident involving Mr Mackie. 13After the accident it was realised that a full review of the defendant's safety system was required and a safety consultant, Mr Jake Farragher, was engaged to undertake that task. Following the completion of the review and the implementation of its recommendations, Mr Farragher was retained to continue his consultancy role with the defendant. Mr Farragher remains employed by the defendant for one day per week and constantly reviews and upgrades safety procedures and guidelines. Mr Maviglia said that, despite the defendant's financial position, he intended that Mr Farragher (or someone with similar qualifications) remain engaged by the company for the foreseeable future, noting his commitment both personally and financially to ensure the defendant had "optimum" health and safety practices. 14The defendant company had authorised Mr Maviglia to express the company's "unreserved contrition and remorse" both for its failings and the fact that Mr Mackie was injured as a result of the defendant's failings. Following the accident, Mr Maviglia had arranged for Mr Clouston to contact Mr Mackie on a regular basis as to his requirements concerning workers' compensation benefits. He was aware that Mr Clouston had contacted Mr Mackie on a number of occasions to offer assistance and to check on his welfare. In early 2009, Mr Mackie returned to work on light duties following a partial clearance from his medical practitioner. Several types of work were found for him. The defendant entered into discussions with Mr Mackie in view of the fact that, while he remained partially disabled, it would be in his interests to undertake additional study courses conducted by State Rail. If completed, such courses would allow him to work on cranes on State Rail sites. While that matter was discussed with Mr Mackie, he declined the offer. Mr Maviglia was not cross-examined. 15Mr David Clouston commenced employment in March 2007 as the occupational health and safety manager with the defendant and had previously been the occupational health and safety manager with Danos Cranes, the company from which Mr Maviglia had purchased a significant crane business. Mr Clouston set out his qualifications. He had joined the defendant company when it had commenced business and had been instructed by Mr Maviglia to review and upgrade the safety systems under which the company operated. Mr Clouston provided details of the systems he created, including documentation of certificates of competencies, documented records of equipment and requirements for annual inspections. Regular yard meetings of employees were organised to discuss safety issues and a generic safe work method statement ("SWMS") was developed and placed in each crane. 16Documentation was required to be completed by the crane crew prior to the commencement of on-site work. In part, the documents required employees to identify risk factors associated with a particular job and once completed (and the safety issues identified and resolved), the crane crew were to sign off on that statement before commencing work. There was also a pre-job site inspection checklist, including relevant safety matters that the crane crew were required to check prior to commencing work. That checklist indicated that employees were not to proceed with the job until all items had been satisfied and if there were safety concerns or other matters that needed to be attended to regarding safety, employees were directed to contact the defendant company before proceeding. 17In describing the various systems of safety adopted by the defendant, Mr Clouston noted that it was the crane driver's responsibility to ensure that the SWMS was completed prior to commencing work. He had not been requested to provide such a statement for the Alexandria site where Mr Mackie was injured and it was therefore the responsibility of the crane crew to complete the pre-job inspection checklist and the generic SWMS. Mr Coulston's understanding was that Mr Kuljanic did not complete the SWMS prior to commencing work but did complete the pre-job site inspection checklist. The company provided supervisors who periodically conducted visual inspections for less dangerous work and attended for the duration of high-risk work. There were three company supervisors at the time of the accident and they had thirty years or more experience in the industry. 18The company accepted that, in order for workers to adequately perform their work, they needed to be sufficiently trained and safety measures needed to be reinforced so that they were to be followed on all occasions. 19Prior to the accident Mr Kuljanic, as the crane driver and senior person at the site, completed the pre-job inspection checklist but neither he nor Mr Mackie completed the SWMS prior to commencing work. Mr Mackie had considered the danger of power lines and had addressed that risk. The defendant company unreservedly accepted that Mr Mackie should have been wearing a full arrest device while working on the site and it was noted that, while such devices were carried in some cranes, they were available from head office. If contact had been made with head office, a full arrest device could have been provided. The defendant also unreservedly accepted that, given that the employees were to make decisions on the site, it was essential that they be effectively instructed so that they made the right decisions in relation to controlling the risk of falling from height. 20Following this accident, Mr Clouston then identified the steps taken by the defendant. The company reinforced with their employees the need and importance of following the documented system of work and the fact that supervisors were to be contacted immediately if a client requested actions that were unsafe. The defendant company engaged a safety consultant, Mr Jake Farragher, to review and implement changes to the company's safety systems. Mr Farragher continued to perform those duties for the company. An induction card was introduced to ensure that all employees had undergone training in the upgraded safety procedures and to ensure that all employees held required competencies for their work. Yard meetings were regularly held allowing employees to express views as to safety issues. The defendant commenced training programmes, including risk hazard identification training and preparation of the SWMS. A safety induction-training manual was developed. The additional training for employees after this accident was conducted over three days involving approximately ten to twelve employees in each course. The company's job sheets occupational health and safety records, SWMS etc had been computerised allowing for a streamlined system. Mr Clouston stated that, since the accident, Mr Maviglia had not hesitated in committing resources and improving and updating the safety systems of the company. 21Mr Farragher commenced his consultancy business in occupational health and safety in December 2008. At that time he was contacted by Mr Maviglia and instructed to complete an overview of the defendant company's current safety systems. Mr Farragher identified a number of areas where the company's systems required updating and improvement, including the safety manual, the induction process, SWMS, the consultation processes and incident reporting processes. At that time the defendant company maintained a safety manual, a company induction form, a SWMS and incident reporting forms. 22After the review, Mr Farragher was retained by the defendant for the following three months and commissioned to work with Mr Clouston to update the systems and processes identified in the review. During this period all employees, managers and supervisors were consulted about improving the current processes and procedures and many yard meetings and toolbox talks were held in order to change the safety culture within the business. Following improvement of the processes and procedures, a company induction was developed. In March 2009 all employees, including managers and supervisors, were inducted in this new approach. Mr Farragher described what was involved in that process. Since that time, Mr Farragher has continued as a consultant and his role is to improve the safety systems of the company. In June 2011 all employees were re-inducted under a newly developed induction programme. A number of the defendant's safety documents were referred to and are annexed to Mr Farragher's affidavit. DELIBERATION 23In the Ceerose judgment at [27], the Court found there was no doubt that the accident amounted to a serious breach. Having regard to the fact that this defendant's breach arose out of the same incident, the prosecutor urged that the same finding of serious breach should be made in relation to this prosecution. The defendant in these proceedings did not question that submission. The circumstances surrounding the fall and the injuries suffered by Mr Mackie indicate the dangerous nature of the work being carried out on the day and how it was obvious that a fall from a height of approximately three metres was a real risk. The work was being carried out in an area where water was present on the deck surface of the hoarding due to earlier rain. The crane, of necessity, had been placed in a position where the driver and the dogman could not see each other. There was no protective railing around the hoarding as it was not a usual place of work. 24The defendant's pre-job site inspection checklist asked, amongst other questions, whether fall protection was required. It was accepted by the employees on the day that such protection was required but the crane provided for this task did not come with fall arrest equipment although some other cranes did have that equipment. The equipment was said to be available from head office but that was of little assistance to employees on site preparing for work. Despite the requirement that employees were not to proceed with the job unless all aspects of the checklist had been satisfied and that they had the ability to contact the defendant's operations department and were instructed not to commence work until they were satisfied the job was safe, the job was started without using fall protection equipment. The employees did not request Ceerose to provide any protective equipment either by way of a moveable platform or fall protection gear. 25It was in those circumstances that the crew commenced work in a most dangerous situation. The risk of falling from height was obvious and foreseeable: the necessary steps to be taken to address that risk were easily available, primarily by the mere provision of fall protection gear. As noted in the Ceerose judgment, the injuries sustained by Mr Mackie demonstrate the potential for very serious injury. Mr Mackie landed on his legs rather than on his neck or head but still sustained severe injuries. There can be no doubt that this was a serious breach by the defendant. 26This is a case where both general and specific deterrence should form a significant element of the ultimate penalty imposed. It was argued for the defendant, in light of the existing safety systems adopted by the company prior to the accident and the extensive measures taken after the accident, that specific deterrence should play a less significant role in the setting of an appropriate penalty. In this case, I am unable to accept that submission. The defendant company operates in a highly dangerous industry where falling from heights is a major risk. The circumstances of this breach are such that it is appropriate to bring home to the defendant the need to not only promulgate safety rules but to take steps by providing safety gear and appropriate instruction to ensure that those safety rules are enforced and are effective in the workplace. 27It is also necessary to address the issue of Mr Maviglia's evidence as to the defendant company's financial circumstances. In submissions, counsel for the defendant made it clear that the company was not claiming to be impecunious or lacking a capacity to pay the fine imposed by the Court. It was accepted that the company, for the past two years, had a turnover of approximately $6 m but there were cash flow problems and the company was otherwise financially struggling. It was readily accepted that Mr Maviglia, as sole director of the defendant, had made a declaration that the company would be able to pay its debts as and when they became due and payable and had also expressed the view that, despite the difficulties experienced over the previous few years, he was confident the business would survive and would ultimately be "a success." 28Section 6 of the Fines Act 1996 requires the Court, when exercising its discretion to fix a fine, consider such information regarding the means of the accused as is reasonably and practically available to the court for consideration and such other matters that, in the opinion of the court, are relevant to the fixing of the fine. In applying that provision the evidence of financial difficulty experienced by the defendant company is unsatisfactory. Notwithstanding the claimed financial difficulties, the company has a large turnover and obviously engages accountants to prepare its financial documents, including taxation returns. The historical information provided covered two years in which similar gross earnings were received but there was no analysis of earlier years and the level of turnover and income earned in those years to enable a reasonable comparison to be made. The nature of the defendant's assets was not disclosed and details of the company's liabilities were not provided. 29Counsel for the prosecutor did not cross-examine any of the witnesses for the defendant but in particular did not cross-examine Mr Maviglia in relation to the company's financial difficulties. Counsel for the prosecutor informed the Court that, although a guilty plea had been entered in November 2010 (with the matter adjourned until the Ceerose matter was finalised), the defendant's affidavits had been filed on 11 November 2011 leaving an unreasonably short time before the hearing (then only days away) to investigate and address the financial evidence. 30Those circumstances leave the Court in an unsatisfactory position in striving to give effect to the temns and spirit of s 6 of the Fines Act where the evidence is meagre. Mr Maviglia's evidence that the company is in financial difficulty and has experienced ongoing cash flow problems has not been challenged. Given the state of the evidence and the fact that the defendant corporation is not claiming impecuniosity leading to an incapacity to pay a fine, it appears to the Court that the most appropriate course is to acknowledge the cash flow and other financial difficulties and express the view that this would be an appropriate case for the payment of the fine to be made by instalments. That is an application that may be made to the Industrial Registrar who may require some additional information in order to be satisfied as to the extent of the nature of the defendant company's financial circumstances. 31In relation to subjective factors, the defendant company had been in operation for approximately two years before this accident occurred. The prosecutor appears to have accepted that it was a relevant fact that Mr Maviglia had commenced crane operations in 2003 in a business that was, in effect, an early manifestation of the business that was ultimately formed in 2007. The relevance of that matter is that neither the previous company nor the present defendant had a prior record of breaching occupational health and safety legislation and so it may be concluded that the safety record is a relatively good one achieved in a high risk industry, albeit, over a relatively short period of time. In any event, the defendant is entitled to the leniency that is usually extended to first offenders. 32The Court accepts that the defendant had established a system of safety for its operations that included training and instruction and also drew attention to the need for fall protection equipment when working at heights. The steps taken by the defendant since the accident to review its safety systems and improve them together with the engagement of a consultant to ensure that the safety systems were up-to-date and appropriate, all speak well of the defendant's attention to safety. The defendant co-operated with the WorkCover Authority in its investigation of the accident and that is to be commended. The Court is also satisfied that the defendant has taken responsibility for this workplace accident, evidenced in particular in its treatment of Mr Mackie during his rehabilitation. Together with the other evidence before the Court, it can be concluded that the defendant has demonstrated its contrition and remorse and that matter will be taken into account in mitigating the penalty. Significantly, the defendant entered an early plea and should be allowed a 25 per cent discount in recognition of the utilitarian value of that plea. 33The final matter requiring consideration concerns the relative culpability of the defendant compared with that of Ceerose . Counsel for the prosecutor pointed out that, while there was an overlap in the charges brought against both defendants, there were matters alleged against Ceerose that were not raised against this defendant. The prosecutor submitted that, having regard to the nature of the risk, the culpability of the two defendants was "more or less" equal. Counsel for the defendant company noted the significant differences in the charges faced by Ceerose and the numerous facets of its breach compared with the relatively limited number of matters raised against this defendant. 34While acknowledging that it will often be the case that a multiplicity of failures by a defendant might lead to a finding of a higher level of culpability than that of a co-offender charged in a much more limited way with breaches of the Act, nevertheless, there is force in the prosecutor's submission that the exercise is not simply one of counting up the number of particulars pursued against each co-offender. The case pursued against each of these co-offenders was essentially a failure to adopt appropriate measures to prevent a fall from heights. The measures that each co-offender should have adopted is somewhat of a reflection of their different roles. The Court is satisfied that Ceerose bears a higher level of culpability than the present defendant although that higher level of culpability is to be regarded as modest. ORDERS 35Having regard to the abovementioned matters, the Court makes the following orders: (a) the defendant, P C Cranes Pty Ltd, 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 451 of 2010 to which the defendant entered a plea of guilty; (b) the defendant is fined the sum of $65,000 with half that amount to be paid to the prosecutor by way of moiety; (c) the defendant is to pay the costs of the prosecutor in a sum as agreed or, in the absence of agreement, as ordered by the Court. ANNEXURE A AGREED STATEMENT OF FACTS 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 P.C. Cranes Pty Ltd was a corporation whose registered office is situated at O'Connor Accountants and Advisors, Suite 14, 6-8 Old Castle Hill Road, Castle Hill in the State of New South Wales ("PC Cranes"). 3. At all material times PC Cranes was a corporation, which undertook the business of mobile crane hire and crane operations. PC Cranes' business consisted of hiring out cranes with crane crews for use on construction premises. PC Cranes was incorporated on 22 January 2007 and has continued to trade since that time. Bruno Maviglia ("Mr Maviglia") was the sole director of PC Cranes. 4. At all material times PC Cranes conducted its business at premises located at 22 Kilton Crescent, Glendenning in the State of New South Wales and was an employer. PC Cranes carried on its business at various construction and other premises throughout New South Wales. 5. Ceerose Pty Ltd ("Ceerose") was the principal contractor for a construction site located at 27-41 Wyndham Road, Alexandria, in the State of New South Wales ("the premises"). Ceerose had approximately 4 employees working at the premises. 6. Mr Edward Doueihi ("Mr Doueihi") was the sole director and general manager of Ceerose. Mr Doueihi has approximately 10 years experience as a builder, and prior to that was a labourer and leading hand. Mr Doueihi holds a certificate IV in building, and has qualifications for dogging, hoist driver, bobcat and excavation. 7. Ceerose employed Dean Bottle ("Mr Bottle") as a leading hand/supervisor at the premises. Mr Bottle worked for Ceerose for three months prior to the incident and holds at Certificate III in carpentry, a Certificate IV in building and a Diploma in Building Management. Mr Bottle was responsible for induction and supervision of workers at the premises, quality control and general programming of the job. 8. Ceerose subcontracted Platinum Formwork Pty Ltd ("Platinum Formwork") to provide falsework/formwork, installation of steel reinforcement and concrete placement at the premises. 9. Ceerose subcontracted P.C. Cranes Pty Ltd ("PC Cranes") to provide a crane and crew to perform general lifting at the premises. Ceerose had engaged PC Cranes to work at the premises on several occasions prior to the incident date on 17 June 2008. 10. PC Cranes employed David Clouston ("Mr Clouston") as OHS manager. He commenced working for them in March 2007. Mr Clouston was responsible for accounts, crane permits, equipment and crane inspections, ensuring employee accreditations were up to date and ran training packages on topics including working on rail and near power lines. Mr Clouston developed and implemented the documented system of work for crane crews. Mr Clouston reported directly to Mr Maviglia. 11. PC Cranes employed Francis Damon Alexander ("Mr Alexander") as a supervisor. He commenced this employment in July 2007. Mr Alexander is a qualified dogman and holds an open mobile crane ticket. Mr Alexander's duties include supervision of work activities and canvassing for work for PC Cranes. 12. PC Cranes employed Tony Kuljanic ("Mr Kuljanic") as crane driver. Mr Kuljanic holds a crane ticket to operate a mobile slewing crane up to 60 tonnes. Mr Kuljanic also holds qualifications for dogging and the operation of elevated work platforms. Mr Kuljanic had approximately 1 years experience operating a crane, and 8 years as a dogman. Mr Kuljanic's direct supervisor was Mr Alexander, although when out on a job Mr Kuljanic was considered the senior employee if there was no other PC Cranes supervisor present at the work premises. 13. PC Cranes employed Peter Justin Mackie ("Mr Mackie"). Mr Mackie was 28 years old at the time of the incident. Mr Mackie was a qualified Dogman with approximately 3 years experience, and had been working for PC Cranes for approximately two years and had been working directly with Mr Kuljanic, full time, for around 9 months. Prior to becoming a dogman, Mr Mackie was a hydraulic fitter for approximately 8 years. Mr Mackie also was licensed to operate an elevated work platform, had completed the OHS Construction Induction Training Certificate and had received training in working near overhead power lines. 14. Two, four storey concrete tilt slab buildings were under construction at the premises at Alexandria. A steel framed timber hoarding approximately 3 metres in height and 30 metres in length fronted the full length of the construction premises and incorporated overhead protection over the footpath. Approximately half way along the hoarding there was an opening approximately 3.6 metres wide, with a sliding gate constructed of plywood over a steel frame. There were hand rails/boards on the hoarding on the side that faced the street. There were no handrails or other barriers on the side of the hoarding closest to the building under construction. The hoarding had a 'step down', of approximately 300mm, toward the building under construction. Incident 15. On 17 June 2008 PC Cranes dispatched the 35 tonne Leibheer mobile crane, identification number 351, and crew to the premises. The crew consisted of Mr Kuljanic, crane driver, and Mr Mackie, dogman. PC Cranes supervisor Mr Alexander was not present at the premises on this date. 16. Mr Mackie had been to the premises at least once at month for approximately 6 months prior to the incident to undertake work as a dogman. Mr Mackie was not inducted into the premises. 17. Formwork materials, including plywood and frames, had been placed on top of the hoarding. The deck of the hoarding on which the formwork materials were stacked was made of smooth steel plate, with a painted blue surface which was worn and rusted in some areas. The crane was not visible from this area of the hoarding. There was no obvious means of access to this section of the hoarding. It had been raining and there was water on the surface of the deck of the hoarding. 18. The materials had been placed on hoarding as space at the premises was short and the formworkers had been working on the hoarding for a few days prior to the incident. 19. At approximately 7:30am on 17 June 2008 Mr Mackie and Mr Kuljanic arrived at the premises and set up the crane between the two buildings under construction. The crane was located approximately 15 - 20 metres from the hoarding, and was located on the other side of a wall. Mr Kuljanic could not see Mr Mackie when he was on top of the hoarding. Mr Mackie and Mr Kuljanic used a two-way radio to communicate with each other. Mr Mackie had a whistle as a back up if the two-way radio failed. 20. The crane was located in an area classed as a suspended concrete slab, with a penetration with stairs beside the crane. Ceerose had provided back propping so that the crane could be set up in this area. 21. The formworkers told Mr Mackie the materials on the hoarding were to be lifted down in order that the formworkers could load them onto their truck. The formworkers got a ladder and Mr Mackie placed it so that he could climb up onto the hoarding. Mr Mackie slung one or two loads that were located on the lower part of the hoarding. 22. The remaining formwork materials to be lifted were located on the higher section of the hoarding than the previous two lifts. Mr Mackie identified the risk of the crane hook and ropes being in close proximity to the power lines during the lift. Mr Mackie estimated the power lines were between 4 and 5 metres from the top of the hoarding, but was concerned about the distance between the power lines and the chains of the crane whilst the chains were being lowered between the building and the powerlines. 23. Mr Mackie asked the two formwokers on the hoarding with him to move the formwork materials down to the lower part of the hoarding area so as to allow a greater distance between the chains and the power lines. The formworkers asked Mr Mackie to lift a pallet jack onto the hoarding with the crane for the purpose of moving the formwork materials down onto the lower level of the hoarding, and Mr Mackie complied with this request. 24. The formworkers constructed a makeshift ramp from 3 pieces of timber and a sheet of plywood on to which they could use the pallet jack to move the load down the step down in the hoarding. The formworkers moved the load to the lower level of the hoarding with the pallet jack and makeshift ramp. They placed the load on two pieces of timber. 25. Mr Mackie was setting up for the lift, talking to Mr Kuljanic on the two way radio, and waiting for the chains to come to him. Mr Mackie estimated he had between 200mm and 300mm between the load and the edge to walk around the load. As Mr Mackie walked around the load, the timbers on which it was resting fell sideways and the resultant jolt knocked Mr Mackie from the hoarding. Mr Mackie knew he was going to fall, and tried to stop himself from falling, but it was wet and there was nothing to hold onto. Mr Mackie turned to face the building as he made a 'sort of jump', and he fell approximately 3 metres onto the concrete below. Mr Mackie landed on his right leg, then on his left leg. 26. Mr Kuljanic saw someone coming, waving their hands saying Mr Mackie had fallen. Mr Kuljanic did not see Mr Mackie fall. Mr Kuljanic exited the crane and went to assist Mr Mackie. 27. George Boulos ("Mr Boulos"), an employee of Platinum Formwork, was walking around the area where Mr Mackie was working on the hoarding. Mr Boulos saw Mr Mackie putting on chains and then saw him fall. 28. Mr Bottle was setting out walls on the second floor of the Block B at the premises and was not aware that Mr Mackie had fallen. Mr Bottle was not aware why Mr Mackie had been up on the hoarding, and that the system of work had been devised between the crane crew and the formworkers, without his knowledge. 29. One of the formworkers went across the road to a service station to get some ice. Mr Mackie removed his shoe and elevated his right leg until an ambulance arrived and transported him to Royal Prince Alfred Hospital. Injuries 30. Mr Mackie sustained a broken right heel, which required an operation to insert two pins to secure the heel in place. Mr Mackie also sprained his left ankle and suffers pain in both knees. Mr Mackie returned to work for four days following the incident, however as at May 2009 had not yet returned to pre-injury duties. Systems Prior 31. Prior to the incident Ceerose had a generic OHS management plan which was not site specific and a generic project premises safety plan which was not site specific. The OHS management plan required all subcontractors to provide a safe work method statement ("SWMS") for the work they were performing. 32. The OHS Management Plan required Ceerose to obtain all SWMS from all subcontractors prior to commencing work. Ceerose was unable to provide a copy of the SWMS from PC Cranes for removing materials from the hoarding or for general lifting on the day of the incident. 33. Mr Mackie and Mr Kuljanic were not inducted to the premises prior to the incident. Mr Kuljanic was inducted into the premises after the incident, which consisted of him providing his certification and next of kin details, and being shown the emergency assembly point. Ceerose were unable to provide WorkCover with any documented induction records for PC Cranes employees, including Mr Mackie and Mr Kuljanic. 34. The system of work for removing the materials from the hoarding was decided between the formworkers and the crane crew. There was no SWMS for placing formwork on, or removing formwork materials from, the hoarding. 35. PC Cranes had a documented system of work developed and implemented by Mr Clouston in the form of a log book kept with each crane. The log book contains crane maintenance logs, general lifting OHS procedures, hazard identification and risk assessment material, and Material Safety Data Sheets ("MSDS"). A copy of the log was also retained at PC Cranes premises. 36. PC Cranes had a generic SWMS and risk assessment that was required to be completed prior to any work commencing at any premises. On the date of the incident Mr Kuljanic completed the SWMS and risk assessment after Mr Mackie had fallen from the hoarding and provided it to Ceerose. 37. Part of the PC Cranes system of work includes the mobile crane hire pre job premises inspection checklist. The checklist is a tool for crane crews to identify, assess and control or report any potential risks at job sites. The checklist must be completed by the crane crew and provided to the principal contractor at the premises, prior to the crew commencing work. Mr Mackie did not complete or see the checklist prior to commencing work on the day of the incident. The checklist completed for the date of the incident notes that fall protection was required. PC Cranes did not provide any fall protection or fall arrest system, such as a harness, for Mr Mackie to use on the date of the incident. PC Cranes did not ensure that Mr Mackie used a fall arrest system, such as a harness, when working from heights. Harnesses were available for use if required, however this equipment was kept at PC Cranes premises and was not easily available to Mr Mackie on the date of the incident. If a harness was required for a job arrangements to use the harness needed to be made prior to attending the job premises. Mr Koljanic completed the inspection checklist on the day. 38. Mr Alexander was not supervising the job on the date of the incident. Mr Alexander had visited the premises on numerous occasions over an eight month period prior to the incident. Systems Following 39. Following the incident PC Cranes reiterated to its employees the importance of following the documented systems of work and that supervisors were to be contacted immediately if the client is requesting actions that are not safe. 40. Following the incident PC Cranes engaged the services of an OHS consultant to review and implement any changes to their current systems. 41. PC Cranes, as part of their upgraded OHS System, have introduced a company safety induction card to ensure all employees have undergone training in the upgraded OHS procedures and that all employees hold the required competencies for their work. 42. Ceerose conducted an investigation of the incident and found that Mr Mackie should not have been working off the hoarding. Ceerose attributed the incident to the lack of fall protection, such as hand rail on the leading edge and the wet weather conditions making the hoarding slippery. 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: 23 November 2011