WorkCover v Everwilling Cranes Pty Ltd [2014] NSWDC 379

District Court New South Wales

Medium Neutral Citation: WorkCover v Everwilling Cranes Pty Ltd [2014] NSWDC 379 Hearing dates: 07 October 2014 Date of orders: 07 October 2014 Decision date: 07 October 2014 Jurisdiction: Criminal Before: Curtis J Decision: The defendant is convicted and fined $90,000 WorkCover to have a moiety of the fine Defendant to pay the Prosecutor's costs in the sum of $25,000 Catchwords: CRIMINAL LAW – prosecution – work health and safety – persons not in defendant's employment was exposed to risks to their health and safety – defendant a provider of mobile cranes – general manager of the defendant attended the site and prepared a safe work statement in conjunction with two other sub-contractors – worker struck by concrete panels – auxiliary hoist overloaded SENTENCE – objective seriousness – specific deterrence – general deterrence – appropriate penalty COSTS – prosecution costs Legislation Cited: Occupational Health and Safety Act 2000 Category: Sentence Parties: WorkCover Authority of New South Wales (Prosecutor) Everwilling Cranes Pty Ltd (Defendant) Representation: Counsel: D Chin appeared for the Prosecutor R Ranken appeared for the Defendant Solicitor: DLA Piper Australia Sparke Helmore Lawyers File Number(s): 2012/330851 Publication restriction: None

1. The defendant Everwilling Cranes Proprietary Limited (Everwilling) pleads guilty to a charge that on 29 October 2010 at Granville in New South Wales it failed by its acts or omissions to ensure that persons not in its employment, Mr Mike Matthew Borg and Michael Walker, were not exposed to risks to their health and safety arising from the conduct of the defendant's undertaking in contravention of s 8(2) of the Occupational Health & Safety Act 2000. 2. The offence occurred in the course of construction of a substation for Integral Energy. That construction required the placement of approximately 121 precast concrete panels of various dimensions and weights. 3. The principal contractor on the site was One Build Pty Limited which engaged Hanson Precast Pty Limited (Hanson) to manufacture, supply and install the precast concrete panels. Hanson sub-contracted the installation work to Cross Lift Pty Limited (Cross Lift), a dedicated rigging company. Cross Lift, in turn, engaged the defendant Everwilling, a provider of mobile cranes. 4. Mr Jamie Henderson, the general manager of Everwilling Cranes, attended upon the site and prepared a safe working statement in consultation with Hanson and Cross Lift. He was told the weight of the panels to be lifted but not informed of the circumstance that the panels required rotation upon one axis before installation. 5. Everwilling had previous dealings with Hanson and Cross Lift and in those dealings one or both of those companies had advised Everwilling when a rotation was required. On this occasion neither company informed Mr Henderson of that requirement. 6. If the panels were delivered on a truck in the necessary plane no rotation would be required. In the instant case because some of the panels were approximately nine metres in length it would not have been practicable to ensure delivery in the appropriate plane. 7. Everwilling provided a Grove model GMK5130 for the purpose of the work. On the day of the incident this crane was operated by Mr Boyce, an employee of Everwilling. Mr Boyce was assisted by Mr Telford, a dogman. 8. It became apparent to those two men that the concrete panels which had been delivered required rotation. This was a step which had not been addressed in the safe working statement prepared by Mr Henderson. 9. Contrary to their training and instructions Mr Boyce and Mr Telford proceeded to lift and rotate the panels by use of an auxiliary lift attached to the crane. In so doing the auxiliary hoist was overloaded by approximately 51% of its safe working capacity. 10. Because of this overloading, the sheath of the crane failed, severing the wire rope of the auxilliary hoist. Part of the wire rope lashed and struck Mr Borg causing bruising to his shoulder. Part of the sheave was explosively ejected narrowly missing a bystander Mr Michael Walker, a leading hand employed by One Build. 11. It is beyond question that given the forces involved and the nature of the failure, serious injury to either Mr Borg or Mr Michael Walker were reasonable possibilities. 12. The objective seriousness of the offence is to be determined by a synthesis of the extent of the risk of injury and death, the degree of foreseeability and the simplicity of obviation. The defendant Everwilling Cranes had available a 300 tonne crane which was perfectly suitable for the purpose of rotation without risk. 13. The prosecution submits that the risk was eminently foreseeable by Mr Henderson. I do not believe that to be the case. When Mr Henderson attempted to prepare his safe working statement he was apprised of no fact which would have put him on notice that rotation was required. 14. On previous occasions when rotation was required he was apprised of the circumstance by Cross Lift and Hanson and a safe working statement was prepared and approved by them which dealt with that contingency. 15. The safe working statement prepared by Mr Henderson in this case was submitted by him to both Hanson and Cross Lift and it was apparent that rotation was not envisaged. Neither Hanson nor Cross Lift had demurred from the system designed by Mr Henderson. 16. By its plea of guilty the defendant does accept that Mr Henderson prudently in every case should enquire whether rotation was part of the system and not assume that the clients would provide that information to him. This is a long way from courting of the risk. It is a long way from a failure to advert in any sense to the safe means of effecting the lift. 17. Mr Henderson did direct his mind to it upon the basis of the facts disclosed to him by the client. Understandably, but in breach of the defendant's duties under the Act he did not make further enquiries. 18. I think the culpability of Mr Henderson is relatively low. The culpability of Mr Telford and Mr Boyce is patent. They had been trained in operations, trained by the manufacturers and inducted into the safe working system required for this lift. 19. They had been specifically instructed to stop work if there was a departure from the safe working system and to seek advice from Mr Henderson. They ignored those instructions. The culpability of those two men is in relation to the defendant a culpability which is to be weighed against the hierarchy of responsibility within the defendant's operations. 20. It seems to me that Mr Henderson in requiring those men to report to him departures from the safe working system had done everything a reasonable employer could have done. There was a practice of the defendant supervising its employees and there is evidence that he had cause to believe that Mr Boyce and Mr Telford were responsible employees. 21. While I accept that the personal culpability of Mr Telford and Mr Boyce was high the extent to which the defendant is responsible for that culpability is moderated by their lack of seniority within the defendant's operations. 22. I accept that the operation of cranes, and in conjunction with extremely heavy loads, is a dangerous operation and there is need for perpetual vigilance and in this case the need for general deterrence. 23. Since the accident the defendant has instituted a system whereby the Occupational Health & Safety officer is to be notified of all lifts of slabs and she has responsibility fors determining whether rotation is required. 24. I have before me a letter from Mr Mainfield, a state manager of Austral Precast, which over 10 years has utilised the defendant's services in the installation of precast concrete sections. Mr Mainfield says that throughout the relationship he has always found the senior management team and their employees conscious of safety and engaged in planned approach to hazards, identification risks, assessments and control. 25. The defendant was not unconscious of its responsibilities in relation to health and safety and had a system in place addressing those responsibilities before the event. I do not believe that there is any significant need for the sentence to reflect specific deterrence. 26. Subjectively the defendant has expressed contrition and remorse, co‑operated with WorkCover and adopted measures necessary to overcome the deficiencies revealed by this event. 27. The defendant employs 46 workers, 36 of whom are crane drivers and dogmen and it has operated since 1995. Although it has two convictions arising out of one event in 2008 this record in a high risk industry while not perfect is commendable. 28. The maximum penalty is $825,000. Although the personal culpability of Mr Henderson, as I say, is not great, I cannot ignore the gross irresponsibility of the employees Mr Boyce and Mr Telford. 29. The defendant operates in a dangerous industry and I cannot ignore the need for general deterrence. 30. I think in all the circumstances an appropriate penalty is $120,000. It is agreed that the defendant will pay the prosecutor's costs in the sum of $25,000. I do not think this is entirely out of proportion such that it requires that it be deducted from the $103,000. 31. I discount $120,000 by 25% in consideration of subjective factors remorse, contrition and co‑operation with the prosecution. 32. The defendant is convicted and fined $90,000. 33. I order that WorkCover have moiety of the fine and order the defendant pay the prosecution's costs in the sum of $25,000.