District Court New South Wales Medium Neutral Citation: SafeWork NSW v Titan Cranes and Rigging Pty Ltd [2019] NSWDC 714 Hearing dates: 6 November 2019 Date of orders: 29 November 2019 Decision date: 29 November 2019 Jurisdiction: Criminal Before: Scotting DCJ Decision: 1 The offender is convicted. 2 I impose a fine of $390,000. 3 The offender is to pay the Prosecutor's costs agreed in the sum of $42,000. Catchwords: CRIME – prosecution – work health and safety – duty of persons undertaking business – duty of employers – risk of death or serious injury – workers injured SENTENCING – aggravating factors – mitigating factors – objective seriousness – general deterrence –no record of previous convictions – good prospects of rehabilitation – plea of guilty – assistance to law enforcement authorities – remorse Legislation Cited: Crimes (Sentencing Procedure) Act 1999 Work Health and Safety Act 2011 (NSW) Cases Cited: Bulga Underground Operations Pty Ltd v Nash [2016] NSWCCA 37 R v Borkowski (2009) 195 A Crim R 1 R v Thomson & Houlton (2000) 49 NSWLR 383 R v Youkhana [2004] NSWCCA 412 Category: Principal judgment Parties: SafeWork NSW (Prosecutor) Titan Cranes and Rigging Pty Ltd (Defendant) Representation: Counsel: C Magee (Prosecution) W Thompson (Defendant) Solicitors: Legal, Government and Corporate Services, Department of Customer Service (Prosecution) DLA Piper (Defendant) File Number(s): 2018/277307 Publication restriction: None Judgment Introduction 1. Titan Cranes and Rigging Pty Ltd (the offender) pleads guilty to an offence that being a person who had a health and safety duty under section 19(1) of the Work Health and Safety Act 2011 (NSW) (the Act) it failed to comply with that duty and thereby exposed several workers, including Corey Briggs, Axel Tritton and Shane Hetaraka, to a risk of death or serious injury contrary to section 32 of the Act. 2. The maximum penalty is a fine of $1,500,000. Facts 1. The parties presented an Agreed Statement of Facts which can be summarised as follows. 2. The offender conducted a business supplying cranes and crane related services to the construction industry in New South Wales, including the erection, operation, maintenance and dismantling of tower cranes on multi-storey, high-rise building sites, servicing and repairing of cranes, crane signage, crane safety equipment, engineering and labour hire. 3. Karimbla Constructions Services (NSW) Pty Ltd (Karimbla) was engaged in the construction of a multi-storey, high-rise building at 80 Arthur Street, North Sydney (the Site). 4. Karimbla had engaged Uplift Cranes (NSW) Pty Ltd (Uplift) to provide a tower crane to assist with construction works at the Site. Uplift engaged the offender to erect, operate, maintain and dismantle a tower crane at the Site on its behalf. 5. The crane erected and operated at the Site by the offender was a JASO 18 Tonne luffing tower crane J-280 (J-280). 6. The J-280 was manufactured in Spain by JASO Equipos de Obras Y Construcciones, S.L. (JASO). 7. JASO provided a Manufacturer's Handbook for the J-280 (the Handbook). The Handbook contained instructions in relation to the installation, assembly and dismantling of the J-280. The Handbook provided instructions and guidance for the dismantling of the J-280 with an auxiliary crane. 8. The offender was responsible for all the crane operations, maintenance, climbing and dismantling of the tower cranes at the Site, including the J-280. 9. In early 2016, the offender commenced planning for the decommissioning and recovery of the J-280. 10. The system of work proposed for the decommissioning and recovery of the J-280 was to allow for the whole crane jib (being 30 metres) to be lowered in a single lift using a mobile crane in accordance with the system of work set out in the Handbook. This method would involve the closure of the public road, in Arthur Street, in front of the Site. 11. On 31 May 2016, the offender engaged EVS Group Australia Pty Ltd (EVS) to provide it with services in relation to traffic management at the Site during the decommissioning and recovery of the J-280. The offender requested EVS to obtain the necessary Road Occupancy Licence (ROL) to enable the closure of the road to allow the mobile crane to dismantle the J-280 from its location. It was anticipated that the road closure would be required on 3 and 4 September 2016. 12. On 15 July 2016, EVS prepared traffic control plans and a traffic management plan for the proposed dismantling of the J-280. On 26 July 2016 EVS informed the offender that a number of applications required to obtain the ROL were still outstanding. 13. On 15 August 2016, the offender informed EVS that Karimbla wanted to change the preferred date for the road closure to 24 and 25 September 2016. EVS informed the offender that it may be difficult to change the ROL to those revised dates. EVS took the necessary steps to change the dates but required confirmation from Transport NSW. 14. On 22 August 2016, the offender commenced developing an alternative system of work to recover the crane without the need for any road closures. 15. The proposed new method to recover the crane would involve splitting the jib of 30 metres into two sections to be lowered separately by a J-80 tower crane. 16. The Handbook did not include any instructions or guidance for the dismantling of the crane using this method. 17. On 22 August 2016 the offender forwarded two emails to JASO advising that they were recovering a J-280 from a tight location and requesting advice and information. 18. Between 24 and 25 August 2016, JASO provided an email response (through its Spanish representative) outlining a proposed system of work to lower the jib of 30 metres in a single move/lift, after having first removed jib sections VIII and IX, the hook assembly and the jib support ties. 19. The offender then requested approval from JASO of its proposed system to split the crane jib into sections. 20. Between 25 and 26 August 2016, JASO forwarded an email outlining the proposed procedure for dismantling the jib of 30 metres into sections. The system of work was outlined and attached in a PDF document. 21. On 15 September 2016, a J-80 was erected on the roof of a construction site in close proximity to the J-280. The J-80 was lifted to the rooftop by the J-280 off a truck at ground level. 22. On 19 September 2016 the offender prepared a SafeWork Method Statement (SWMS) for the task of "Crane Dismantle J280". This Dismantling SWMS was provided to Uplift. 23. On 23 September 2016, the offender's Operations Manager, Roy Williamson, sent an email to the offender's Engineer and Leading Hand Supervisor, Messrs Bugden and Hannan respectively, requesting that the system of work for the dismantling of the jib provided by JASO be amended and that the amended procedure be signed off by JASO. 24. On 23 September 2016, Mr Bugden prepared a document seeking to reflect the system of work proposed by Mr Williamson. Mr Hannan requested that Mr Bugden make changes to the document. Mr Bugden modified the diagram as requested by Mr Hannan. 25. On 23 September 2016, the drawing prepared by Mr Bugden (Drawing 1309-01) was forwarded to Messrs Williamson and Hannan. The proposed system of work set out in Drawing 1309-01 introduced changes to the system of work that had been recommended by JASO on 25 August 2016. 26. The amended system of work devised by Messrs Williamson, Bugden and Hannan was not submitted to JASO for its approval despite Mr Williamson's intention to do so. This occurred as a result of miscommunication between these employees of the offender. 27. The offender chose to implement the system of work that involved splitting the jib of 30 metres into sections and lowering those sections with the J-80 crane, rather than wait for a ROL to be approved and implement the system of work set out in the Handbook that involved lowering the whole jib of 30 metres with a mobile crane. 28. On 23 September 2016, the offender created a SWMS for Crane Dismantle J280 and documented system of work for splitting the jib of 30 metres into sections and lowering the sections with the J-80, in the SWMS for Crane Dismantle J280 and Drawing 1309-01. 29. The workers who had been selected to dismantle and recover the J-280 were selected on their competency and skill levels and they were provided with clear instructions as to the system of work in a tool box talk held before commencement of the work. 30. The offender scheduled the work to be carried out on 25 September 2016. 31. The offender did not follow up with EVS to determine if an ROL could be issued to allow the dismantling of the J-280 to be undertaken in accordance with the Handbook. The offender elected to proceed with the method that did not require a ROL to be issued. The Incident 1. On 25 September 2016, the offender's rigging crew, Messrs Briggs, Tritton and Hetaraka (the workers) arrived at the Site. They were supervised by Mr Hannan. The workers attended a tool box talk and discussed the documented systems of work which were to be applied to the task. 2. The area around the crane was isolated and only the crane crew were working on and around the crane. At approximately 9am the workers began to dismantle the crane. They were positioned on the crane jib as they began to split and lower the crane jib. The workers were connected to the crane jib by a static line, harnesses and lanyards. 3. When the workers were located at the end of the crane jib, the crane jib collapsed and fell uncontrollably, coming to rest on the edge of the building, with the drop jib section dangling over the side of the building. The jib was supported in the wrong place and a shift in weight caused the crane sling to break a number of lacings on the jib, causing the jib to tip on an angle. 4. Following the collapse of the crane jib, Mr Tritton unclipped his harness and climbed through the dangling jib section to safety and assisted in the recovery of Messrs Briggs and Hetaraka. 5. The workers were recovered through the use of a person-box via the J-80 tower crane. 6. The workers were all conveyed to the Royal North Shore Hospital. 7. Mr Tritton sustained grazes to his left shoulder and right elbow. He also twisted his left ankle and required sutures to the back of his head. 8. Mr Hetaraka sustained multiple fractures to his left shoulder, sternum and toe. 9. Mr Briggs sustained serious injuries, including spinal fractures, bilateral rib fractures, a lung contusion, an open elbow fracture, a dislocated finger, a fractured shoulder, a right gluteal haematoma and bilateral pneumothoraces. Systems of Work Following the Incident 1. SafeWork NSW attended the Site and oversaw the recovery and dismantling of the J-280 jib by the use of a mobile crane. Pieces of the crane jib were taken as evidence and testing. The crane was dismantled without further incident. The Offender's Case on Sentence 1. The defendant read an affidavit of Bernard Martin Kelly sworn 1 November 2019. Mr Kelly was present in Court but not required for cross-examination. Mr Kelly's evidence can be summarised as follows. 2. The offender was incorporated on 16 June 2004. It is a member of the Titan Group. Mr Kelly joined the offender in February 2011 as its General Manager, reporting directly to the Managing Director. Mr Kelly is currently the Chair of the Executive Group and Industrial Relations. 3. The offender's predominant business operation is the lease of cranes to builders for medium to large scale projects such as the Barangaroo Development Project and the construction of the Northern Beaches Hospital. 4. The offender has adopted a systematic approach to the supply, construction, maintenance and dismantling of cranes supplied by it during the course of its business. Its workers are well-qualified for the specialised work carried out by the offender. 5. The offender has an engineering department that is responsible for managing the design requirements and preparing technical drawings relating to the erection and dismantling of cranes in accordance with the operating manuals of the particular crane. The workers employed by the offender in its engineering department are also well-qualified. 6. Mr Kelly, on behalf of the offender, acknowledged that it failed to ensure the health and safety of the workers during the dismantling of the J-280. He acknowledged that there were reasonably practicable measures available to prevent the incident that were not adequately undertaken. Mr Kelly understood that the workers involved had each suffered injuries resulting in pain, suffering and inconvenience. Mr Kelly expressed on behalf of the offender, its regret for the incident and its commitment to ensuring that an incident such as this did not happen again and its commitment to ensuring its compliance with its obligations under the Act. 7. Mr Kelly deposed that the offender did not wait for the ROL to be approved as a result of the continually moving timeline of the project. Mr Kelly deposed that it was the offender's intention to seek approval from JASO as to its intended methodology but that did not occur as a result of miscommunication between its employees in the engineering department. 8. The offender supported each of the injured workers and their families. The offender paid for and arranged for the families of Mr Tritton and Mr Hetaraka to be flown to Sydney and to stay with the injured workers. The offender arranged and paid for their flights and accommodation. Mr Tritton returned to work one week after the incident. Mr Hetaraka has also returned to work. The offender supplied Mr Briggs with a laptop so that he could work from home during his recovery. The offender also supplied Mr Briggs with subsidised accommodation and an automatic vehicle, because he was having trouble operating a manual vehicle. 9. The offender has provided financial assistance to the workers to ensure that there was no shortfall between their normal wages and workers compensation payments. 10. Mr Tritton was awarded an Australian Bravery Decoration by the Governor General on 19 August 2019 for his bravery in assisting with the rescue of Mr Briggs and Mr Hetaraka. 11. Mr Kelly deposed that at the time of the incident the offender's work health and safety systems had been independently documented and were the subject of quality control management systems. The offender had in place a full time Work Health and Safety Officer who liaised with each of the Operational Managers to ensure appropriate safety systems were in place for each project. 12. At the time of the incident, there was in place a Site specific safety plan for the North Sydney project and a SWMS had been prepared for the dismantling of the J-280. There was a tool box meeting on the morning of the incident in accordance with the offender's usual practice. 13. As a result of the incident, the offender has made a number of changes to its safety system. It has become more proactive in obtaining ROLs when required for specific jobs. It has ceased using a sub-contractor to make those applications. 14. The offender has purchased a larger crane, a J-183, to be used for dismantling operations. This allows for heavier lifts when dismantling crane jibs. The cost of the J-183 was $625,000. The availability of this crane means that the offender no longer has to dismantle a tower crane by splitting the crane jib. 15. The offender has appointed a dedicated Work Health and Safety Manager for its national operations. This involves an annual expense of approximately $380,000. 16. The offender has implemented project management training for all workers engaged in project management to ensure that correct safety procedures are followed for all projects. 17. Since the incident the offender has facilitated approximately 820 successful erections and dismantles of JASO cranes and around 150 "climbs" to maintain the cranes once erected. A "climb" is the process by which the height of a tower crane is increased by the insertion of a new segment. 18. Since the incident, the offender has conducted approximately 200,000 man hours of high-risk work without incident. 19. The Managing Director of the offender is proactive in safety matters. Safety matters are regularly discussed as the first item on executive meetings held on a tri-weekly basis. 20. The offender sponsors a number of sporting teams and sports people. The offender also supports a company co-founded by Mr Kelly to assist with the representation and development of indigenous people in the construction industry. The offender has also made donations to a number of charities. 21. The offender continues to take an active role in the construction industry. It is a member of the Master Builders Association of NSW. In co-operation with SafeWork NSW, the offender has participated in a forum with industry stakeholders to consider how the ROL application process can be streamlined and how the risk of incidents associated with the use of cranes can be reduced. Consideration 1. I have had regard to the objects of the Act set out in section 3 and the purposes of sentencing set out in section 3A Crimes (Sentencing Procedure) Act 1999. Objective Seriousness 1. The offence is one of significant objective gravity. 2. The risk posed by the dismantling of the J-280 was obvious. The dismantling of the J-280 was high-risk construction work by reason of the height at which the work was required to be carried out. The SWMS identified the risk of "crane failure" or "crane collapse" with identifying a risk of death, serious injury or permanent disability. 3. The process involved in the dismantling of the crane was one that was covered in some detail in the Handbook. Whilst the offender had taken considerable steps to plan the splitting of the crane jib, it failed to have that system approved by the manufacturer. 4. The steps that could have been taken to avoid or minimise the risk were simple in that the offender could have waited until the ROL could be obtained or alternatively it could have ensured that the manufacturer had approved the alternate system. 5. The consequences of the risk were significant in that it involved the risk of death to the three workers and potentially a risk to other persons on the street below. 6. The alternate measures that could have been taken would have involved some inconvenience but that cost and/or inconvenience was not grossly disproportionate to the risk. 7. The workers each suffered some injury. The injuries to Mr Hetaraka and Mr Briggs were serious, and in Mr Briggs' case, particularly so. On the basis of the material before me, Mr Briggs continues to have serious and ongoing difficulties as a result of the injuries he sustained. 8. I have taken into account the maximum penalty for the offence. Deterrence 1. The penalty imposed in relation to the offences must provide for general deterrence. PCBUs must take the obligations imposed by the Act very seriously. The community is entitled to expect that both small and large businesses will comply with safety requirements. General deterrence is a significant factor when safety obligations are breached: Bulga Underground Operations Pty Ltd v Nash [2016] NSWCCA 37 at [180]. 2. There is a need for specific deterrence. The offender operates in an industry that is dangerous to its workers. Whilst I accept that the offender had a demonstrated commitment to safety and an extensive safety system, this offence was still committed. The offender should understand by reason of the penalty imposed for this offence that it needs to be vigilant and constantly reviewing its systems to avoid future offences. Aggravating Factors 1. The injury, harm and loss caused by the offence was substantial: section 21A(2)(g) Crimes (Sentencing Procedure) Act 1999. In order for the aggravating factor to be established, I must be satisfied beyond reasonable doubt that the harm was greater or more deleterious than may ordinarily be expected for the offence in question: R v Youkhana [2004] NSWCCA 412 at [26]. The offence does not require the occurrence of an injury, only that a worker is exposed to a risk of serious injury or death. Accordingly, the affliction of injury, in this case, serious injury, is sufficient to establish the aggravating factor. Mitigating Factors 1. The offender does not have any previous convictions: section 21A(3)(e) Crimes (Sentencing Procedure) Act 1999. The company was incorporated on 16 June 2004. 2. The offender has good prospects of rehabilitation: section 21A(3)(h) Crimes (Sentencing Procedure) Act 1999. At the time of the incident the offender had in place significant safety systems to provide for the health and safety of its workers. The offender approached the dismantling of the J-280 in a systematic and professional way that broke down for the reasons previously identified. The offender has demonstrated by its actions after the incident that it has good prospects of rehabilitation. The offender has expended considerable money in the purchase of the J-138 to ensure that the incident, that is the subject of this offence, does not occur again. Further, it has strengthened its safety systems by the employment of a National Work Health and Safety Manager and undertaken projects with SafeWork NSW to inform the wider industry of the difficulties experienced in this incident. I am satisfied, on the balance of probabilities, that the offender has excellent prospects of rehabilitation. 3. The offender has demonstrated remorse: section 21A(3)(i) Crimes (Sentencing Procedure) Act 1999. The offender, through its officer, Mr Kelly, has accepted responsibility for its actions and expressed remorse and contrition for the offence. Further, the offender has demonstrated by its support of the injured workers, a willingness to make amends for the offence. I am satisfied, on the balance of probabilities, that the offender has expressed genuine contrition and remorse. 4. The offender entered a plea of guilty: section 21A(3)(k) and section 22 Crimes (Sentencing Procedure) Act 1999. It is entitled to a discount on penalty that reflects the utilitarian value of that plea: R v Thomson & Houlton (2000) 49 NSWLR 383 and R v Borkowski (2009) 195 A Crim R 1 at [32]. The plea also indicates remorse: Borkowski at [32]. The appropriate discount is 25%. 5. The offender co-operated with the SafeWork NSW investigation: section 21A(3)(m) Crimes (Sentencing Procedure) Act 1999. 6. By its charitable donations and participation in the community, the offender has demonstrated itself to be a good corporate citizen. Penalty 1. The offender is convicted. 2. The appropriate fine is one of $520,000 which will be reduced by 25% to give effect to the plea of guilty. 3. I impose a fine of $390,000. 4. The offender is to pay the Prosecutor's costs agreed in the sum of $42,000. ********** 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 November 2019