Brambles Australia Limited v Newman [2003] ICQ 7 (2003) 172 QGIG 1321

21 March, 2003 QUEENSLAND GOVERNMENT INDUSTRIAL GAZETTE 1321 ########################################################################################################################### INDUSTRIAL COURT OF QUEENSLAND Workplace Health and Safety Act 1995 – s. 164(3) – appeal against decision of industrial magistrate Brambles Australia Limited AND Clive John Newman (No. C1 of 2003) PRESIDENT HALL 6 March 2003 DECISION On 26 and 27 November 2001 the respondent made a complaint before a Justice of the Peace that the appellant had breached s. 24 of the Workplace Health and Safety Act 1995. A circumstance of aggravation was alleged, viz. that as a consequence of the breach Edward George Kitchen sustained fatal injuries. The scheme of the Workplace Health and Safety Act 1995 is that s. 24 imposes criminal liability on persons who breach obligations imposed upon them by other sections of the Act. Here the relevant “other” section was s. 28. Section 28 provides: “Obligations of employers 28.(1) An employer has an obligation to ensure the workplace health and safety of each of the employer’s workers at work. (2) Also, an employer has an obligation to ensure his or her own workplace health and safety and the workplace health and safety of others is not affected by the way the employer conducts the employer’s undertaking.”. At all material times the appellant carried on the business of supplying cranes to construction sites. The cranes were provided with all necessary staff. Inevitably, the staff who accompanied a crane to a site were subject to the control of the occupier and were required to coordinate their activities with the activities of other contractors on the site. But there was at all times a contract of service between the appellant and the staff who accompanied the crane and the appellant was an “employer” for the purposes of s. 28. The obligation at s. 28 is sharpened where an advisory standard has been made under s. 41. In such a case it is the effect of s. 26(3) that if the advisory standard states a way of managing exposure to risk an employer discharges the obligation imposed by s. 28 only by adopting and following the stated way of managing exposure to the risk or by adopting and following another way that gives the same level of protection against the risk. Here, there were two relevant advisory standards, viz. the Risk Management Advisory Standard 2000 and the Plant Advisory Standard 2000. Properly, because a complainant carries the onus of proof, the respondent gave particulars of the “failures” by the appellant which were said to lead to the conclusion that the appellant had neither adopted and followed the stated way of managing exposure to risk nor adopted and followed another way of managing exposure to risk that gave the same level of protection. The particulars, both on the charge of breach of the obligation imposed by s. 28(1) and on the charge of breach of the obligation imposed by s. 28(2) were identical. It was alleged that: “Brambles Australia Limited did fail to provide a system of work being for the operation of plant, namely a Leibherr LTM 1330N all terrain mobile crane within the construction workplace located at 135 Moggill Road, Taringa that was safe and without risk to workplace health and safety. Brambles Australia Limited did fail to provide such information, instruction, training and supervision to such persons as was necessary to enable workers to perform their work in a manner that was safe and without risk to their workplace health and safety. Brambles Australia Limited did fail to assess or adequately assess the risk associated with the use of plant, namely a Leibherr LTM 1330N all terrain mobile crane, within the construction workplace located at 135 Moggill Road, Taringa.”. In short form, after a significant trial, the Industrial Magistrate found the appellant not guilty of any failure to provide information, instruction, training and supervision, found the appellant guilty of failing to identify the risk which caused the accident and guilty of failing to provide a system of work that was safe and without risk to workplace health and safety. This is an appeal against both findings of guilt. -- 1 of 3 -- 1322 QUEENSLAND GOVERNMENT INDUSTRIAL GAZETTE 21 March, 2003 It is necessary to say something of the facts. Since both parties are entirely complimentary of the Industrial Magistrate’s summary, I simply reproduce it: “The method of construction in which the defendant-company was involved on that day comprised erection of large pre-cast concrete panels to form the walls of a commercial building. Each panel was raised from the horizontal position in which it had been cast to a vertical position where it linked with the others to form a wall. The panels were to be permanently locked in place by the setting of a concrete ceiling after all were erected. Until the ceiling was set the panels were held in the vertical position by steel braces (generally referred to as ‘props’ in these proceedings). Each prop was fixed to the panel by attachment to a precast bracket set in the panel. The prop extended at an angle approaching 45 degrees from the vertical to an anchoring device at ground level. The anchor device for each prop was set in an independent concrete foundation for each which is known in the industry as a ‘deadman’. The panels were lifted by crane. The defendant provided the crane for that purpose and the service of three of its employees: the crane-operator, Roberts; and two riggers, Tecarr and King. Although Tecarr and King provided some assistance to others on site they were employed to assist Roberts in the operation of the lifting process for which the crane was engaged. Other workers on site were employed to attach the props at the appropriate stages in the lifting process. Kitchen sustained his injuries when a panel fell down upon him after having been raised to a vertical position. The panel fell down because the counterweight of the crane dislodged one of the props that were holding the panel at the vertical. The panel had been erected a short time before it fell down. It was the last panel that could be lifted by the crane in the position it was in at the time of lifting. It was necessary to shift the crane to a different position in order to lift more panels. Roberts and the riggers were engaged in moving the crane at the time of the incident. Before moving the crane it was necessary to detach the somewhat complex rigging devices by which the panels were lifted. In order to offload the rigging at a position that allowed them to again be taken up after the crane was moved Roberts had caused the boom of the crane to turn several degrees beyond 180 from the position employed to lift the panels. Those few degrees had tragic consequences. The site was a congested site. It was an elongated site, its length running generally north-south. The crane’s counterweight could not turn 360 degrees. It could turn 180 degrees to the west (i.e. anti-clockwise). An adjoining building on the eastern boundary of the site prevented the crane turning 180 degrees to the ease (i.e. clockwise.) The panels were at the time being erected on the eastern boundary. The movement of the crane to the east was further restricted by props once erected. The several degrees beyond 180 that the crane’s counterweight turned anti-clockwise from north through west to south brought the counterweight of the crane into collision with a prop. The prop was dislodged and the panel fell. Throughout the course of rotation of the boom and counterweight Tecarr and King were assisting Roberts by controlling the rigging devices to ensure they did not foul other objects on site. Neither Tecarr nor King was in a position to see the counterweight. The configuration of the crane was such that Roberts could not see the relevant part of the counterweight from his cabin. Neither Tecarr nor King was directed by Roberts to watch the path of travel of the counterweight. Roberts did not ask any other person on site to watch.”. The risk which the Industrial Magistrate found that the respondent failed to identify and assess was the risk of the panel prop encroaching upon the rotational arc of the crane’s counterweight. I accept that Mr Hewitt, who was employed by the respondent to supervise its crane operations, had some days prior to the crane going on site assessed the requirements of the job including safety issues, and that Mr Hewitt had visited the site with the crane driver prior to the day of the incident and discussed the work proposed. Although the evidence is somewhat equivocal, in a case in which the appellant carries the criminal onus of proof, it is proper to find that Mr Hewitt and the crane driver adverted to the panel props being a danger. I am also prepared to accept that Messrs Roberts (the driver), Tecarr and King (the riggers) were sufficiently trained and experienced to be, in a general way, aware of the dangers posed by panel props. The very obvious danger was that if the panel prop slipped or was dislodged the panel would fall. But on any fair reading of the transcript it is impossible to conclude that it was not open to the Industrial Magistrate to find, as His Worship did, that Mr Hewitt did not advert to the risk of the panel prop being within the rotational arc of the counterweight. It is true that there are some ambiguous passages in the evidence. However, the Industrial Magistrate who had the advantage of hearing and observing the witnesses, was in a much better position to assess whether witnesses were remembering more detail or improving upon their evidence. I accept the submission of the appellant that it was not possible to identify precisely where the panel prop would be once erected. The anchor device had not been set. However, the cement block into which the anchor device was to be sunk had been laid and the length of the panel prop was known. It would have been possible to take a mud map of the site and sketch out a shaded area within which (inevitably) the panel prop would be found. It must be remembered that the exercise was not about working out where the panel prop would be but about assessing risk. Given the constricted nature of the site, once the area within which the panel prop would ultimately be set was identified, it would have been possible to take the next step and identify where within the constricted site the crane might have been placed without the panel prop being within the rotational arc of the counterweight or, if that were not possible, develop measures to manage the risk. Because the first step was not taken, nothing followed. The Industrial Magistrate was right to conclude that the defendant had failed to adopt any of the five management steps set out in s. 22(2) of the Act and adopted and expanded upon in the Risk Management Advisory Standard. It seems to me that the Industrial Magistrate was also correct to conclude that the appellant had failed to provide a system of work that was safe and without risk to workplace health and safety. The criticism on the appeal is that the Industrial Magistrate treated the job instruction/hazard control form filled out by Hewitt as the core of the appellant’s system of work whereas it was but an audit tool. With respect, if one puts aside the appellant’s reliance upon the recruitment and further training of able staff as a system of work – and in my view that is not a system – the job instruction/hazard control form was “central”, to adopt His Worship’s language, of such system as the appellant had put in place. It was plainly inadequate. Once again, it is sufficient to quote from the decision of the Industrial Magistrate: “Central to the defendant’s system of hazard identification and risk management was that form. It was designed to ensure identification of hazards associated with each job, assessment of the risk associated with such hazard and determination of the measures to be implemented to manage that risk. The inadequacy of the defendant’s system of work is clearly established on the face of the document and in the evidence of Roberts, Hewitt, and Parker. Item ‘2. Risk Management Control’ purports to address both the identification of hazards under a column headed ‘Hazard Identification’ and the risk control measures to be adopted in order to manage that hazard. The column ‘Hazard Identification’ contains nine sub-divisions dealing with specific hazards and a tenth dealing with any not otherwise listed. It is apparent that the purpose of the sub-divisions is not only to provide a convenient category for the identification of hazards but to focus the mind of the person completing the form upon the types of hazards common in the workplace. There is a column headed ‘Site Inspection’ with sub-columns headed ‘Acep’ and ‘Unacc’. The witnesses did not have a uniform understanding of what the contents of that column were designed to portray: whether a tick in ‘accep’ sub-column was meant to disclose that there was no hazard of the kind described in the sub-item, whether there was a hazard which if left unattended presented no unacceptable risk or whether it presented a risk which was made acceptable only by the implementation of the prescribed control-measures. The manner in which exhibit 9 was completed does nothing to resolve the confusion. In sub-item ‘c)’ ‘Overhead obstructions – power lines etc’ is identified as an ‘accep’ hazard yet no risk control -- 2 of 3 -- 21 March, 2003 QUEENSLAND GOVERNMENT INDUSTRIAL GAZETTE 1323 measure is prescribed. Similarly with sub-item ‘g) Field of Vision’ and item ‘i) Communication methods’. Sub-item ‘h) Weather conditions’ is not identified as a hazard yet a risk control measure is prescribed. Exhibit 9 discloses that although control measures were prescribed in respect of six of the identified hazards in the case of, ‘Panel Props’ no risk control measure was prescribed. This omission appears to be entirely consistent with the company attitude as expressed by Parker, Hewitt and Roberts viz that the method of control is most effectively left to the appropriately trained workers on site. Whatever cogency that view might otherwise have is in my view significantly weakened by the manner in which other hazards have been addressed in item ‘2’ of exhibit 9. It is not clear to me on the evidence why it might be that workers adequately trained and instructed on matters of workplace safety need to be directed as to the risk control measures to be adopted in respect of sub-items a, b, d, e, f and h but not in respect of panel props. For reasons given earlier I am satisfied that the nature of the particular hazard created by panel props encroaching upon the rotational arc of the counterweight was one that was ascertainable with a very high degree of specificity. Exhibit 9 simply discloses ‘Panel Props’ not as a hazard but as a risk control measure. I am satisfied that notation constitutes neither an adequate assessment of risk, nor an adequate determination of appropriate control measures to manage that risk. The JOB INSTRUCTION/HAZARD CONTROL FORM constituted the very core of the defendant’s system of work as regards on-site workplace safety. I am satisfied that exhibit 9 exposes a substantial flaw in the effectiveness of that form. That flaw corrupts the integrity of the system. I am satisfied beyond reasonable doubt that the defendant did fail to provide a system of work that was safe and without risk to workplace health and safety.”. The conclusion reached by the Industrial Magistrate seems to me to be inescapable. And there being no appropriate system of risk identification, there was no system at all. The appellant properly relies upon s. 37(1)(b)(ii). The purpose of s. 37(1)(b)(ii) is to provide a defendant with a defence where compliance with an advisory standard is impossible or unduly burdensome. By s. 37(1)(b)(ii) it is the defence in a proceeding against a person for a contravention of an obligation under division 2 of Part 3 (or for that matter division 3 of Part 3) for the person to prove that s/he adopted and followed a way of managing exposure to risk other than that nominated in the advisory standard and took reasonable precautions and exercised proper diligence to prevent the contravention. The difficulty confronting the appellant is that a finding of “reasonable precautions” and the exercise of “proper diligence” is incompatible with the findings which the Industrial Magistrate made about the appellant’s efforts in risk identification. I accept that building/construction sites are almost inherently dangerous and that the dangers are variable rather than static. The recruitment of skilled staff and the provision of proper courses of instruction and retraining are not merely commendable but necessary steps. But skill and competence are a safeguard in addition to the safeguards provided by risk identification and the management of hazards by proper systems of work. Here, the crane driver commenced to rotate the crane through its arc without warning either of the riggers. There was no procedure in place requiring him to issue a warning. He continued to move the crane through its arc after he had lost sight of the panel prop. Either of the riggers might have taken up a position as a spotter to warn the driver that the counterpoint was approaching the panel prop. The riggers knew the importance of doing that without being asked. Neither rigger made any contact with the crane driver after the crane commenced to move through its arc. There was no procedure in place requiring them to do so. Working out what to do next did not work. With respect to Mr Williams, for the appellant, who has argued a difficult case with commendable skill, in the absence of planning, procedure or supervisory oversight, the appellant’s operation on the day was a shambles. I dismiss the appeal. Dated 6 March 2003. D.R. HALL, President. Released: 6 March 2003 Appearances: Mr D. Williams, of Minter Ellison Solicitors, for the appellant. Mr M. Griffin SC, and with him Mr C. Rowntree, directly instructed by the Division of Workplace Health and Safety Legal and Prosecution Services. -- 3 of 3 --