SafeWork NSW v Bennett

[2022] NSWDC 332

District Court

New South Wales

Medium Neutral Citation:

SafeWork NSW v Bennett [2022] NSWDC 332

Hearing dates:

1, 2, 3 August 2022

Date of orders:

12 August 2022

Decision date:

12 August 2022

Jurisdiction:

Criminal

Before:

Russell SC DCJ

Decision:

Proceedings 2020/303207 – The Section 19(1) Summons

(1)   The elements set out in the Summons dated 22 October 2020 have been proved beyond reasonable doubt.

(2)   I find the defendant Mr Nigel Bennett guilty.

(3)   The matter will be listed for a sentence hearing on a date convenient to the parties.

Proceedings 2020/303225 – The Section 19(2) Summons

(1)   The elements set out in the Summons dated 22 October 2020 have been proved beyond reasonable doubt.

(2)   I find the defendant Mr Nigel Bennett guilty.

(3)   The matter will be listed for a sentence hearing on a date convenient to the parties.

Catchwords:

CRIMINAL LAW – prosecution – work health and safety – duty of persons undertaking business – risk of death or serious injury

CRIMINAL LAW – elements of offence – whether defendant owed a health and safety duty – whether there was a failure to comply with that duty – whether that failure exposed workers to the risk of death or serious injury – whether that failure exposed other persons to the risk of death or serious injury

CRIMINAL LAW – reasonable practicability – likelihood of the risk – knowledge of the risk – what the defendant ought reasonably to have known

OTHER – defendant engaged as a contractor to operate a crane to load a dismantled centrifuge onto a flatbed truck – boom of the crane came into contact with, or in close proximity to, live overhead power lines – two persons suffered electric shocks – failure to forbid unqualified worker operating crane – failure to provide an appropriately qualified crane driver – failure to instruct worker to undertake site induction – failure to undertake joint safety assessment – failure to ensure crane was not in the vicinity of overhead power lines – failure to require dedicated spotter and/or qualified dogman – failure to conduct site-specific risk assessment

Legislation Cited:

Criminal Procedure Act 1986 (NSW), s 133(2)

Evidence Act 1995 (NSW), s 38

Work Health & Safety Act 2011 (NSW) ss 3, 7, 12A, 16, 17, 18, 19, 32, 275

Work Health and Safety Regulation 2017 (NSW) cll 166, 291, 299

Cases Cited:

Baiada Poultry Pty Limited v The Queen [2012] HCA 13; (2012) 246 CLR 92

Bulga Underground Operations v Nash [2016] NSWCCA 37

Dunlop Rubber Australia Ltd v Buckley [1952] HCA 72; (1952) 87 CLR 313

Genner Constructions Pty Ltd v WorkCover Authority of New South Wales [2001] NSWIRComm 267; (2001) 110 IR 57

Grasso Consulting Engineers Pty Ltd v SafeWork NSW [2021] NSWCCA 288

Laing O’Rourke (BMC) Pty Ltd v Kirwin [2011] WASCA 117

Orr v Hunter Quarries Pty Ltd [2022] NSWCCA 39

Poletti Corporation Pty Limited v SafeWork NSW [2020] NSWCCA 243

Royall v The Queen [1991] HCA 27; (1991) 172 CLR 378

Simpson Design and Associates Pty Ltd v Industrial Court of New South Wales [2011] NSWCA 316

Slivak v Lurgi (Australia) Pty Ltd [2001] HCA 6; (2001) 205 CLR 304

Smith v Broken Hill Pty Ltd [1957] HCA 34; (1957) 97 CLR 337

Tangerine Confectionery Ltd and Veolia ES (UK) Ltd v R [2011] EWCA Crim 2015

WorkCover Authority of New South Wales v Kellogg (Aust) Pty Ltd [1999] NSWIRComm 453

Texts Cited:

WorkCover NSW Code of Practice, Work Near Overhead Power Lines, 2006

Category:

Principal judgment

Parties:

SafeWork NSW (Prosecutor)
Nigel Bennett (Defendant)

Representation:

Counsel:
M Scott (Prosecutor)
Self-represented (Defendant)

Solicitors:
Department of Customer Service (Prosecutor)

File Number(s):

2020/303207; 2020/303225

Judgment

Introduction

1. The defendant Mr Nigel Bennett pleaded not guilty to a charge that on 25 October 2018 being a person conducting a business or undertaking who had a health and safety duty under s 19(1) of the Work Health and Safety Act 2011 (NSW) (the Act) to ensure so far as is reasonably practicable the health and safety of workers while the workers are at work in the business or undertaking, he did fail to comply with that duty and the failure to comply with that duty exposed Mr Peter Voight, Mr Gregory Whitford and Mr Kane Druce to a risk of death or serious injury contrary to s 32 of the Act.

2. Mr Bennett pleaded not guilty to a charge that on 25 October 2018 being a person conducting a business or undertaking who had a health and safety duty under s 19(2) of the Work Health and Safety Act 2011 to ensure so far as is reasonably practicable that the health and safety of other persons was not put at risk from work carried out as part of the business or undertaking, he did fail to comply with that duty and the failure to comply with that duty exposed Mr Peter Voight and Mr Gregory Whitford to a risk of death or serious injury contrary to s 32 of the Act.

3. In closing submissions counsel for the prosecutor conceded that the evidence did not establish that Mr Voight and Mr Whitford were “workers” within the meaning of the Act (Tcpt 121/47-148/24). Thus the charge relating to s 19(1) of the Act was confined to Mr Druce alone being exposed to a risk of death or serious injury. The charge relating to s 19(2) of the Act stood as pleaded ie it alleged that Mr Voight and Mr Whitford were “other persons” who were exposed to a risk of death or serious injury. That concession was in my view quite appropriate.

4. On 25 October 2018 a crane owned by Mr Bennett (trading as Highlands Cranes) was being operated by Mr Druce to move machinery onto a truck at the Moss Vale Sewerage Treatment Plant (STP) which was owned and operated by Wingecarribee Shire Council (the Council). Mr Voight and Mr Whitford were involved in moving the machinery. The boom of the crane came into contact with, or in close proximity to, live overhead power lines. Both Mr Voight and Mr Whitford suffered electric shocks.

5. The issues to be determined are:

1. Was the defendant conducting a business or undertaking?

2. Did the defendant owe the men a health and safety duty under s 19(1) and/or s 19(2) of the Act?

3. Did the defendant fail to comply with his health and safety duty by failing to take any of the reasonably practicable steps particularised in each Summons?

4. Did the defendant’s breach of duty expose the men to a risk of death or serious injury?

6. Mr Bennett represented himself. He was assisted at the Bar Table by his sister Ms Stuckey, who acted as a “McKenzie Friend” (Tcpt 9/1-26). At the commencement of the trial I outlined to Mr Bennett the procedure to be followed (Tcpt 1/43-7/19 and MFI 1). I also handed to Mr Bennett a summary of the general principles of law in relation to the Act (MFI 2).

The Task of this Court

7. As the judge of the facts in a trial by judge alone, as well as the judge of the law, I must find the facts and draw inferences from them as well as apply the law to the facts that I find. I must bring an open and unbiased mind to the evidence and view it clinically and dispassionately and not let emotion enter into the decision-making process. Both the prosecution and the defendant are entitled to my verdict free of partiality or prejudice, favour or ill-will. I must then deliver my verdict according to the evidence.

8. The prosecution bears the onus of proving the guilt of the defendant at all times. The defendant does not have to prove that it did not commit the offence charged. If the defendant does adduce any evidence which is consistent with its innocence, it does not have to prove it. It is for the prosecution to disprove it or show that it is irrelevant, otherwise the prosecution will not have proved its case. The standard of proof of the prosecution case is proof beyond reasonable doubt and the defendant cannot be found guilty of the offence unless the evidence which I accept satisfies me beyond reasonable doubt of its guilt.

9. The defendant is presumed by law to be innocent of the offence unless and until the evidence I accept satisfies me that each and every element of the relevant charge has been proved beyond reasonable doubt. The defendant then loses the presumption of innocence and I must find it guilty. If, however, the evidence which I accept fails to satisfy me beyond reasonable doubt of any or all of the elements of any offence charged then it remains presumed innocent and I must find a verdict of not guilty. If I am satisfied that there may be an explanation consistent with the innocence of the defendant of the charge, or I am unsure of where the truth lies, then I must find the charge has not been proved to the standard of proof required by law and I must find the defendant not guilty.

10. I must determine whether each of the witnesses is a reliable witness ie whether I can rely on the evidence that the witness gives and so find the facts about which the witness has given evidence. I can accept part of the evidence of a witness and reject part of that evidence or accept or reject it all. I must determine the facts in accordance with the evidence, considered logically and rationally, without acting capriciously or irrationally but I may use my common sense, experience and wisdom in assessing the evidence.

11. My judgment must include the principles of law applied and the findings of fact relied upon: s 133(2) Criminal Procedure Act 1986 (NSW).

The Elements of the Offence

12. Section 32 of the Act provides:

“A person commits a Category 2 offence if—

(a)   the person has a health and safety duty, and

(b)   the person fails to comply with that duty, and

(c)   the failure exposes an individual to a risk of death or serious injury or illness.”

13. Section 19(1) of the Act provides:

“(1)   A person conducting a business or undertaking must ensure, so far as is reasonably practicable, the health and safety of—

(a)   workers engaged, or caused to be engaged by the person, and

(b)   workers whose activities in carrying out work are influenced or directed by the person,

while the workers are at work in the business or undertaking.”

14. Section 19(2) of the Act provides:

“(2) A person conducting a business or undertaking must ensure, so far as is reasonably practicable, that the health and safety of other persons is not put at risk from work carried out as part of the conduct of the business or undertaking.”

15. The elements of the offences are:

1. Element 1: The defendant was conducting a business or undertaking.

2. Element 2: The defendant owed workers a duty under s 19(1) of the Act and/or owed other persons a duty under s 19(2) of the Act.

3. Element 3: The defendant failed to comply with the duty.

4. Element 4: The failure exposed the workers and/or other persons to a risk of death or serious injury.

The Summons

16. The Summons filed in proceedings 2020/303207 (the Section 19(1) Summons) particularises the date of the offence as 25 October 2018 and the place of the offence as Moss Vale Sewerage Treatment Plant, Kennedy Close, Moss Vale, in New South Wales.

17. Paragraphs 1-10 of the Section 19(1) Summons set out the background facts which the prosecutor seeks to prove as follows:

“1.   The defendant was a person conducting a business or undertaking within the meaning of the Act.

2.   At all material times, the defendant’s business or undertaking was cranage work to remove machinery via the use of a mobile crane at Moss Vale Sewerage Treatment Plant, Kennedy Close, Moss Vale, New South Wales (the site). The site was a workplace for the purposes of section 8 of the Act.

3.   The defendant was subcontracted by Arkwood (Gloucester) Pty Limited (ACN 055 370 486) (Arkwood), to undertake crane works at the site. Including provision of a mobile crane and crane operator. Arkwood was subcontracted, by Wingecarribee Shire Council, the principal contractor, to undertake works at the site.

4.   Mr Kane Druce (Mr Druce) was employed by Mr Bennett and allocated to work at the site. Mr Druce operated the mobile crane at the site.

5.   Mr Druce was engaged or caused to be engaged by the defendant in that he was employed by the defendant.

6.   The defendant influenced or directed Mr Druce’s work as he was the defendant’s employee undertaking work on behalf of the defendant at the site.

7.   Mr Peter Voight (Mr Voight) and Mr Gregory Whitford (Mr Whitford) were workers employed by Arkwood and undertaking work at the site.

8.   Mr Voight and Mr Whitford’s work was influenced or directed by the defendant as they were assisting in the provision of crane services at the site.

9.   On 25 October 2018 Mr Druce was at work in the defendant’s business or undertaking in that he was operating a mobile crane as part of the conduct of the task at the site.

10.   On 25 October 2018 Mr Voight and Mr Whitford were at work in the defendant’s business or undertaking in that they were assisting with the provision of crane services at the site undertaking the roles of dogman.”

18. In the light of the concession referred to above, the s 19(1) Summons now relates to Mr Druce alone.

The Risk

19. Paragraph 11 of the Section 19(1) Summons pleads the risk as follows:

“Particulars of the risk:

11.   The risk was the risk of workers, in particular Mr Druce, Voight, and Mr Whitford, suffering serious injury or death as a result of electric shock when the boom of a mobile crane came into contact with, or in close proximity to, an energised overhead powerline at the site.”

Reasonably Practicable Measures

20. Paragraph 12 of the Section 19(1) Summons pleads particulars of the defendant’s failure to comply with the duty under s 19(1) of the Act as follows:

“12.   The defendant failed to ensure, so far as is reasonably practicable, the health and safety of workers, in particular, Mr Druce, Mr Voight and Mr Whitford, in that it failed to take one or more of the following measures, each of which is alleged to have been reasonably practicable, to eliminate, or alternatively minimise, if it was not reasonably practicable to eliminate, the risk:

a.   Instruct Mr Druce not to operate a mobile crane at the site as he was unlicensed and did not hold the appropriate qualifications to do so;

b.   Provide an appropriately qualified crane driver to set up and operate the crane at the site;

c.   Instruct Mr Druce to report to the office and undergo a site induction prior to commencing any work at the site;

d.   Require and instruct Mr Druce or any other person to perform no work relating to the cranage without a prior joint safety assessment being completed with Mr Voight and Mr Whitford;

e.   Confirm the mobile crane was set up in an appropriate location at the site and was not in the vicinity of overhead powerlines on the site prior to a mobile crane being operated at the site;

f.   Require and instruct Mr Druce or any other person to perform no work in the vicinity of powerlines without a person acting as a dedicated spotter;

g.   Provide or require that a qualified dogman was on site to assist with crane operations at the site;

h.   Conduct a site specific risk assessment to identify the hazards of crane works at the site, in particular in relation to working in the presence of high voltage overhead powerlines traversing the site and the use of a mobile crane in this area and control measures to eliminate or minimise the identified risks.”

21. Paragraphs 13-14 of the Section 19(1) Summons plead that as a result of the defendant’s failures, Mr Druce, Mr Voight, and Mr Whitford were exposed to a risk of death or serious injury and the injuries suffered by Mr Voight and Mr Whitford were a manifestation of the risk.

22. The Summons in proceedings 2020/303225 (the Section 19(2) Summons) is pleaded in similar terms to the Section 19(1) Summons, save that Mr Voight and Mr Whitford are categorised a “other persons” rather than as “workers”. It was on this basis that the prosecutor pursued its case in relation to Mr Voight and Mr Whitford.

The Relevant Law

General Principles

23. The objects clause in s 3 of the Act provides:

“(1)   The main object of this Act is to provide for a balanced and nationally consistent framework to secure the health and safety of workers and work places by —

(a)   protecting workers and other persons against harm to their health, safety and welfare through the elimination or minimisation of risks arising from work or from specified types of substances or plant, and

…

(h)   maintaining and strengthening the national harmonisation of laws relating to work health and safety and to facilitate a consistent national approach to work health and safety in this jurisdiction.

(2)   In furthering subsection (1)(a), regard must be had to the principle that workers and other persons should be given the highest level of protection against harm to their health, safety and welfare from hazards and risks arising from work or from specified types of substances or plant as is reasonably practicable.”

24. The offence is one of strict liability: s 12A of the Act.

25. The content of the duty is set out in s 19 of the Act which provides:

“(1)   A person conducting a business or undertaking must ensure, so far as is reasonably practicable, the health and safety of—

(a)   workers engaged, or caused to be engaged by the person, and

(b)   workers whose activities in carrying out work are influenced or directed by the person,

while the workers are at work in the business or undertaking.

(2)   A person conducting a business or undertaking must ensure, so far as is reasonably practicable, that the health and safety of other persons is not put at risk from work carried out as part of the conduct of the business or undertaking.

(3)   Without limiting subsections (1) and (2), a person conducting a business or undertaking must ensure, so far as is reasonably practicable—

(a)   the provision and maintenance of a work environment without risks to health and safety, and

…

(c)   the provision and maintenance of safe systems of work, and

(d)   the safe use, handling, and storage of plant, structures and substances, and

…

(f)   the provision of any information, training, instruction or supervision that is necessary to protect all persons from risks to their health and safety arising from work carried out as part of the conduct of the business or undertaking, and

(g)   that the health of workers and the conditions at the workplace are monitored for the purpose of preventing illness or injury of workers arising from the conduct of the business or undertaking.”

26. The meaning of “worker” is dealt with by s 7(1) of the Act which provides:

“(1)   A person is a worker if the person carries out work in any capacity for a person conducting a business or undertaking… “

27. Section 16 of the Act provides that more than one person can have a duty, and says:

“(1)   More than one person can concurrently have the same duty.

(2)   Each duty holder must comply with that duty to the standard required by this Act even if another duty holder has the same duty.

(3)   If more than one person has a duty for the same matter, each person—

(a)   retains responsibility for the person’s duty in relation to the matter, and

(b)   must discharge the person’s duty to the extent to which the person has the capacity to influence and control the matter or would have had that capacity but for an agreement or arrangement purporting to limit or remove that capacity.”

28. Section 17 of the Act deals with the management of risks and provides:

“A duty imposed on a person to ensure health and safety requires the person—

(a)   to eliminate risks to health and safety, so far as is reasonably practicable, and

(b)   if it is not reasonably practicable to eliminate risks to health and safety, to minimise those risks so far as is reasonably practicable.”

29. The word “risk” is not defined in the Act. Risk should not be interpreted in a complicated fashion. Safety cannot be ensured if a risk is present. The presence of a risk to the health or safety of a worker constitutes a breach of s 19 of the Act. It is not necessary that there be a particular accident, or that a person is actually injured. What is required is the creation of the risk. The relevant risk for the commission of the s 32 offence is a risk of death or serious injury: s 32(c) of the Act.

29. An incident causing injury may be evidence of the presence of a risk and may be relevant in due course to sentencing as a measure of the severity of the harm suffered as a result of the risk. But a distinction must be drawn between the specific risk that manifested in the incident and the general class of risk that the analysis must focus on. Paying too close attention to the specific risk resulting in an incident can lead to error: Tangerine Confectionery Ltd and Veolia ES (UK) Ltd v R [2011] EWCA Crim 2015.

30. The prosecution bears the onus of proving as an element of the offence that at the time of the offence it was reasonably practicable to ensure the health and safety of the persons alleged to be at risk. The risk should be identified with sufficient precision to determine if it was reasonably practicable to eliminate the risk, or if not, if it was reasonably practicable to minimise it. In this way the application of reasonable practicability may arise more than once.

31. “Reasonably practicable” is defined in s 18 of the Act which provides:

“In this Act, reasonably practicable, in relation to a duty to ensure health and safety, means that which is, or was at a particular time, reasonably able to be done in relation to ensuring health and safety, taking into account and weighing up all the relevant matters including—

(a)   the likelihood of the risk concerned occurring, and

(b)   the degree of harm that might result from the risk, and

(c)   what the defendant knows, or ought reasonably to know, about;

(i)   the hazard or the risk, and

(ii)   ways of eliminating or minimising the risk, and

(d)   the availability and suitability of ways to eliminate or minimise the risk, and

(e)   after assessing the extent of the risk and the available ways of eliminating or minimising the risk, the cost associated with available ways of eliminating or minimising the risk, including whether the cost is grossly disproportionate to the risk.”

33. The state of knowledge applied to the definition of reasonably practicable is objective. It is that possessed by persons generally who are engaged in the relevant field of activity and not the actual knowledge of a specific defendant in particular circumstances: Laing O’Rourke (BMC) Pty Ltd v Kirwin [2011] WASCA 117 at [33].

34. The reasonably practicable requirement applies to matters which are within the power of the defendant to control, supervise and manage: Slivak v Lurgi (Australia) Pty Ltd [2001] HCA 6; (2001) 205 CLR 304 at [37] per Gleeson CJ, Gummow and Hayne JJ.

35. The s 19 duty requires knowledge of the risk emanating from the activities of the defendant: Slivak. Foreseeability of the risk to persons from the activity is an element of this question of knowledge. It would not generally be practicable to take measures to guard against a risk to safety that was not reasonably foreseeable: Genner Constructions Pty Ltd v WorkCover Authority of New South Wales [2001] NSWIRComm 267; (2001) 110 IR 57 at 68.

36. The reasonable foreseeability of an incident is relevant to whether the pleaded measures were reasonably practicable but is not necessarily determinative: Orr v Hunter Quarries Pty Ltd [2022] NSWCCA 39.

37. The statutory duty is not limited to simply preventing foreseeable risks of injury. The duty is to protect against all risks if that is reasonably practicable. Reasonably practicable means something narrower than physically possible or feasible: Slivak at [53] per Gaudron J.

38. The words “reasonably practicable” indicate that the duty does not require a defendant to take every possible step that could be taken. The steps to be taken in the performance of the duty are those that are reasonably practicable for the employer to achieve the provision of and maintenance of a safe working environment. Bare demonstration that a step might have had some effect on the safety of a working environment does not, without more, demonstrate a breach of the duty: Baiada Poultry Pty Limited v The Queen [2012] HCA 13; (2012) 246 CLR 92 at [15] and [38] per French CJ, Gummow, Hayne and Crennan JJ.

39. Evidence of actions taken by a defendant after the incident is admissible on the question of whether the steps particularised in the Summons were reasonably practicable: Poletti Corporation Pty Limited v SafeWork NSW [2020] NSWCCA 243 at [9] and [35].

40. An employer must have a proactive approach to safety issues. The question is not did the employer envisage a particular danger, but rather should it have: WorkCover Authority of New South Wales v Kellogg (Aust) Pty Ltd [1999] NSWIRComm 453.

41. A defendant must have regard not only for the ideal worker but also for one who is careless, inattentive or inadvertent: Dunlop Rubber Australia Ltd v Buckley [1952] HCA 72; (1952) 87 CLR 313 at 320 per Dixon CJ. If there is a foreseeable risk of injury arising from the employee’s negligence in carrying out his or her duties then this is a factor which the employer must take into account: Smith v Broken Hill Pty Ltd [1957] HCA 34; (1957) 97 CLR 337 at 343. It may not always be possible to foresee various acts of inadvertence by workers but defendants must conduct operations on the basis that such acts will occur and they must be guarded against to the fullest extent practicable.

42. The prosecution must prove that the act or omission of the defendant was a significant or substantial cause of the worker being exposed to the risk of injury: Bulga Underground Operations v Nash [2016] NSWCCA 37 at [127].

43. The question is to be determined by the application of common sense to the facts, bearing in mind that the purpose of the inquiry is to attribute legal responsibility in a criminal matter: Royall v The Queen [1991] HCA 27; (1991) 172 CLR 378.

44. Regard must be had to the scope and objects of the Act: Simpson Design and Associates Pty Ltd v Industrial Court of New South Wales [2011] NSWCA 316 at [79]-[102]. The relevant question is not whether the particularised failures of the defendant were the cause of the death or injury, but rather whether there was a causal relationship between the act or omission and the risk to which a worker was exposed: Bulga at [130].

Evidence of Police and SafeWork NSW Inspector

45. Senior Constable Miller of Moss Vale Police Station attended the scene of the incident on 25 October 2018, along with his colleague Constable Muir. He provided information which was recorded in a COPS report (PX 1, Tab 2). Senior Constable Miller did not take statements from witnesses at the site. Therefore, what is in the COPS Report is necessarily an amalgam of what other people have told him and his understanding of the incident.

46. Senior Constable Miller took photographs which are reproduced in PX 1, Tab 2. The photograph numbered 7 looks upwards towards the boom of the crane which has been raised to a point very close to the overhead power lines.

47. The photograph numbered 8 has been taken from the back of the crane showing the boom raised at about 45 degrees. Chains are connected from the hook of the crane to the conveyer belt which was being lifted when the incident occurred.

48. Photograph numbered 9 shows two chains and hooks attached to the conveyor belt, which is suspended above the ground.

49. Photograph numbered 10 shows the crane from side on. The boom is fully extended at an angle of about 45 degrees. The top of the boom is adjacent to the power lines. The hook is a considerable distance below the boom. Connected to the hook are two chains which in turn are connected to the conveyor belt, which sits on the ground. In the background can be seen some of the emergency services personnel.

50. I accept the evidence of Senior Constable Miller.

51. Inspector Baldwin from SafeWork NSW was based at its Goulburn office and attended the site on the day after the incident. He served a notice under the Act upon the police and obtained some photographs taken by the police the previous day.

52. Inspector Baldwin prepared a Factual Investigation Report (PX 1, Tab 3). He also took photographs on the day after the incident (PX 1, Tab 4). The crane had already been moved back from under the power lines and the boom had been lowered.

53. Inspector Baldwin issued an Improvement Notice to Mr Bennett under the Act. He obtained the Safe Work Method Statement (SWMS) which Mr Bennett was using as at 25 October 2018 (PX 1, Tab 5).

54. The Improvement Notice directed to Mr Bennett said:

“1.   You must eliminate the risks associated with operating the Franna Crane in the vicinity of overhead powerlines. Where this is not reasonably practicable you must minimise the risks so far as is reasonably practicable by:

-   developing and implementing a safe work procedure for operating the Franna Crane in the vicinity of overhead powerlines.”

55. Mr Bennett created a new SWMS in response to the Improvement Notice (PX 1, Tab 6).

56. I accept the evidence of Inspector Baldwin.

Evidence of People at the Site

Mr Kane Druce

57. Mr Druce gave his evidence by audio visual link (AVL) as he had recently tested positive for COVID-19. While counsel for the prosecutor was reluctant to take the evidence of Mr Druce by AVL, Mr Bennett indicated that he wished to have the trial continue and conclude. The AVL for Mr Druce was clear. There was a good picture of Mr Druce on the large screens in court and his sound was clear. There were no interruptions to the AVL. I was of the view that there was no unfairness to either party arising out of the use of the AVL.

58. Mr Druce is presently employed as a crane operator having obtained his crane licence in December 2018. He worked for Mr Bennett at Highlands Cranes for about a year in 2018. He was learning how to operate a crane from Mr Bennett and was assisting him on jobs.

59. Mr Druce had never performed any work at the Moss Vale STP before 25 October 2018. His work plan for the day was that he was going to drive the Franna Crane to the Moss Vale STP where machinery was to be loaded by use of the crane. He was not going to do the loading but was just going there to watch everyone work.

60. When Mr Druce arrived at the Moss Vale STP Mr Bennett had not arrived. He had a telephone conversation with Mr Bennett who said that he would be there in 10 minutes. Mr Druce told this to the two men on site who worked for Arkwood (Gloucester) Pty Ltd (Arkwood).

61. Mr Druce said that he could not recall what Mr Bennett said to him about whether he should do anything with the crane once he had arrived. Counsel for the prosecutor applied for leave to cross-examine Mr Druce under s 38 of the Evidence Act 1995 (NSW) in relation to prior inconsistent statements. I granted that application.

62. Mr Druce acknowledged (Tcpt 84/35-85/10) that in an interview with SafeWork NSW inspectors which took place on 26 October 2018, the day after the incident, he was asked questions and answered as follows:

“Q. Yes, and why were you operating the crane?

A. I was told to. Originally I was in Moss Vale just cause I was down there in the pools at the time. My uncle was going to meet me there at 1.00, and I thought I’d go out earlier cause we had nothing else booked for the day. So, I thought I’d go out to the pools, train for a little bit, then come here and meet him. Here.

When I was at the pools, he’s called me. Said that he’s - course, he was originally - had a job on - at eight or something, doing a pool. He thought he’d be here, and there was going to be no dramas, and he, when he was doing the pool, apparently he was putting the pool in. He couldn’t put the pool in because they had to wait for the hole to be inspected before he could come, so he said he might be half an hour late. Just drive there and set up.

So, I drove there and set my hook for the winch and everything for my chains, and he said he’s going to be running late, he just - he’s just the pool in, and then he was on his way there. He said, ‘You’ve got two dogmen there’, and he knew them by - he’s worked with them plenty of times, and he said, ‘It’s a pretty basic job. You’ll be right. Nothing can really go wrong. I’ll be there shortly’, and, yeah.

And then, question 42,

Q. So - so your uncle instructed you to start operating the crane?

A. Yes.”

63. Mr Druce accepted that this was truthful evidence which he gave during the interview on 26 October 2018 (Tcpt 85/18).

64. Mr Druce was then cross-examined about another SafeWork NSW interview conducted on 17 September 2020. He acknowledged that part of the interview was as follows (Tcpt 85/46-86/2):

“Q. Okay, what was your role there on the day?

A. I was to, I was originally just to drive the crane there and dog the load, or help dog the loads, with another man. But Nigel was running late, so I drove the crane there. I gave him a call and he said the men were working with very experienced dogmen and riggers, that they’d been doing it for twenty‑something years and just do what they say. Everything will be fine. He’ll be there shortly.”

65. Mr Druce acknowledged that that was an accurate statement made by him (Tcpt 86/4).

66. Mr Druce was then cross-examined about evidence he had given in previous proceedings in which Arkwood was prosecuted by SafeWork NSW (Tcpt 86/20-42):

“Q. I know you do not have the transcript, but I will read you a question and answer that arises from the transcript. Your Honour, page 59, line 43,

‘Q. But, in fact, what he said to you was not simply to drive the crane - he directed you to go and start operating the crane until he arrived. That’s correct, isn’t it.

A. He originally told me just to drive the crane to site - and then when I got there, everybody was wanting to work, so the men informed me they were ticketed. So I rang Nigel and told him about that.’

And then later you gave this - you had this question to you. Page 60, line 18,

‘Q. You don’t recall that, and in that statement you gave them’

- they’re referring to the SafeWork statements I’ve just taken you to -

‘the interview, you specifically said on two occasions that it was Mr Bennett that had said to you, ‘It will be fine. They’re really experienced dogmen, they’ve been doing it for 25 years’,

and that’s the information you relied on. That’s correct, isn’t it?,

A. That’s correct. After I rang him to confirm it all, he agreed and said, ‘Yes.’

That was a truthful answer, was it?

A. Yeah. Yes.”

67. Mr Druce said that when he arrived at the site he spoke to “the two men that were doing the job”. He could not remember whether he had been informed by Mr Bennett that he needed to speak to the Council person operating the plant before he started work. He did not register or sign on when he arrived on the site.

68. Mr Druce said that he did have a discussion with the two men who were “pulling the conveyor down”. During that discussion mention was made on the overhead power lines. He then started work with the two men using the Franna Crane to “pick up the pieces”. He drove the crane and moved pieces over to a trailer and put the pieces on the trailer. He did that as directed by the two men. Mr Druce did not put the chains on the pieces of equipment, and that was done by the two men who he described as “the two dogmen”. He recalled that the conveyor was the last item to be loaded (Tcpt 88/6). The two men connected chains to the conveyor and it was connected to the hook on the crane. That was when the incident occurred. Mr Druce said that the men hooked up the load and directed him to jib up. He jibbed up (meaning that he raised the boom of the crane) and “then it went into the power lines”. He recalled that one man was holding the load but he was not sure where the second man was.

69. Mr Druce said that Mr Bennett arrived on the site almost straight away after the incident.

70. Mr Druce gave evidence that there was no-one warning him where the boom head was in relation to the lines, apart from the two men who were directing him. He was sitting in the cabin of the crane with the boom extended. In that position he could not see where the boom was or where the power lines were.

71. Mr Druce was then cross-examined by Mr Bennett. Mr Druce agreed that Mr Bennett had said to him that “The Arkwood men were good dogmen, and one was [a] crane driver”. Mr Druce recalled Mr Bennett saying to him “Tell the boys I’ll be 10, 20 minutes late”. Mr Druce thought that the reference to “the boys” meant the two men from Arkwood. Mr Druce said that he explained the situation to the two men about Mr Bennett running late and told them he was just there to drive the crane to the site. He told them that he was being taught by Mr Bennett and that his job was only to drive the crane to the site. The men did not tell Mr Druce that he had to sign in at the Council office before he began work. Mr Druce recalled that the two men just wanted to get the job done and they wanted him to get on with it until Mr Bennett arrived. Mr Druce said that the two men told him they were dogmen and riggers and had been doing that work for a long time. They told him that they were confident they could hook up the loads for him. Mr Druce said that the two men were “just really eager to get a start on the job, I’m not sure why”.

72. Mr Druce agreed with the suggestion that trauma on the day could have impacted the recollection he had on 26 October 2018 when he first spoke to SafeWork NSW. Mr Bennett suggested to Mr Druce that what he had said to him was “put the hook on the crane and make a start”. Mr Bennett also suggested to Mr Druce that what he had said was “Tell the boys that I’m going to be late, put the hook on the crane and make a start, like paperwork, look at the job”.

73. In re-examination, although in the nature of cross-examination pursuant to the earlier grant of leave, counsel for the prosecutor took Mr Druce to questions and answers in the Record of Interview of 17 September 2020. He was asked about the following passage from the Record of Interview (Tcpt 97/40-98/5):

“Q. Can I take you to question 30,

Q. When you arrived on the day or when you started operating the crane, did any of the workers ask where Nigel was?

A. I can't remember, but I knew he was on his way, I can't remember anybody asking where he was.

Q, Yep. Did anybody ask you why you were operating the crane?

A. Uh, no.

Q. Did anybody ask you, you had a crane ticket?

A. No.

Q. Did any of the workers ask you if you had someone else coming to assist you?

A. I can't remember.”

74. Mr Druce was then asked whether there was any paperwork that he completed on site on the day. He said: “Only our, our general Safe Work Method Statement and our GSA’s [sic] that we do before each job”.

75. Mr Druce said that he had those documents in the crane with him at all times. He was then taken to another part of the Record of Interview of 26 October 2018 which contained the following questions and answers (Tcpt 99/3-100/1):

“A. No, I didn't have one, no documents. No, I wasn't sure if that – if that was organised when they were booking the job in with my uncle, cause he sent all his paperwork to the bookkeeper and I've known when, like, we've worked at hospitals, stuff, when they've asked for paperwork, his bookkeeper sort of hounded all the paperwork side of things so I don't really.

Q. So, do you know what a Safe Work method statement is?

A. Yes, just to –

answer is ‘Yes’. -

A. Yeah, to make sure there are no hazards and risks and everything identified. If hazards do occur, they should be at a safe place where you going first available I'm aware of. [sic]

Q. Does your uncle have a Safe Work method statement, do you know for the crane operation?

A. He has a Safe Work method statement, but I'm not sure if

Q. Has he shown it to you at all?

A. Yes, he has, yes, and we do have our risk assessment piece of paper that we have with every single job that we tick through each box to make sure.

Q. Is that kept in the crane itself? –

which is something he has just said, your Honour –

Is that kept in the crane itself?

A. No, it’s usually kept with him in his diary, he carries the paperwork around with him.

Q. Okay, so you didn't bring one yourself, your uncle?

A. No, yeah, cause I was – the original plan he was going to meet me there.

Q. Yes.

A. He was supposed to be doing the job originally, and he was gonna meet me there.

Q. Okay. So, yeah, he carries all the risk assessments?

A. Yes, yes.

Q. To do - before operates the crane?

A. Yes.

Q. Okay. And you didn't - and you don't have a copy of those yourself?

A. No, but”

76. Mr Druce was also taken to the following questions and answers (Tcpt 100/9-18):

“Q. Question 64,

Q. Is there a start-up checklist for the crane that you do before - before you start, before you use it every time?

A. Yes, yes. He's - it's in our billing book, at the bottom of our billing book for each job. We've got an assessment that we walk around and tick everything that's okay.

Q. Did you complete that yesterday?

A. No, I didn't have it on me because I was sort of not expecting to be coming here by myself.”

77. After being taken to those questions and answers, Mr Druce was asked whether the evidence contained in the interviews was correct and whether he did not complete any paperwork on the day. He said (Tcpt 10/21-25):

“A. I - I can't recall, but I did - I remember filling in a - our - our general work method statements that we have. We didn't have site-specific paperwork for that job, but we have a generic one. I can't recall exactly.”

78. I have great reservations about the reliability of the oral evidence given at the trial by Mr Druce. On important matters, it is contradicted by answers he gave in two Records of Interview and in court in previous proceedings. Mr Druce acknowledged that the answers he gave in both interviews, and in the earlier court proceedings, were truthful and accurate. His evidence given in this trial was often vague. Mr Druce could now not remember things which he obviously had a clear recollection about on earlier occasions. I find that answers which Mr Druce gave in the two Records of Interview, and in earlier proceedings, were accurate. In particular, I find that Mr Bennett did tell him by telephone to start cranage work, and that in accordance with that instruction, he did so.

Mr Peter Voight

79. Mr Peter Voight was employed at the time of the incident by Arkwood. He had worked for Arkwood for about six years and then had a year off work to care for his wife who was unwell. He returned to work for Arkwood at the beginning of 2018. He was the senior person on a centrifuge operation. He was responsible for doing the whole job, requesting what equipment was needed and then going on site and completing the work.

80. Because of the serious injuries he suffered in the incident, Mr Voight has no memory of the incident itself. He has a memory of arriving at the Moss Vale STP around 11 October 2018 and then he has no memory of anything until the beginning of January 2019. Mr Voight identified his signature on the Site Induction Form (PX 1, Tab 7, p 130).

81. Mr Voight had worked at about 40 treatment plants for Arkwood. The plants were visited once or twice yearly. The centrifuge equipment arrived at a treatment plant on the back of a semi-trailer. The pieces were taken off the semi-trailer by a Franna Crane and assembled on site. Mr Voight had a practice of asking the plant operator if they had a preferred crane company. He said that he always requested a dogman to come with the crane (Tcpt 105/35).

82. When the job was done the parts of the centrifuge had to be put back on the trailer in reverse order. At the time of the incident Mr Voight had a high risk work ticket that covered the operation of the centrifuge, but he did not have a ticket as a rigger or dogman. He said that he had never told anyone that he had such tickets.

83. Mr Voight said that in all the time he performed work at various plants involving removing the centrifuge from the trailer and then loading it back on, he would not let work proceed without a dogman.

84. In cross-examination Mr Voight said that he had no recollection of ever working with Castle Cranes Pty Ltd (Castle Cranes) in the Southern Highlands. He said that he had never dogged a crane.

85. Save for one important matter, I accept the evidence of Mr Voight. I do not accept his evidence that he would never let work go ahead on any site without a ticketed dogman doing the work. On the day of the incident this is exactly what happened. Mr Voight and Mr Whitford were attaching the chains and the hook to each load and were directing Mr Druce where each piece of the centrifuge was to be placed on the trailer. Mr Druce was at all times in the cabin of the crane and did not do any of the dogging work.

86. I am fortified in reaching that conclusion by my acceptance of the evidence of Mr Compagnoni, dealt with below. I accept his evidence that he had done work for Arkwood many times in loading and unloading the centrifuge, and on each occasion Arkwood employees had done their own dogging. Further, Mr Compagnoni produced paperwork to show that Arkwood had ordered a crane from Castle Cranes without a dogman for its work involving lifting the pieces of the centrifuge, once before and once after the incident.

Mr Gregory Whitford

87. Mr Whitford was the other Arkwood worker who was injured at the site on the day of the incident. At the time of the trial he was out of the State. Several attempts were made to establish an audio visual link so that he could give his evidence by AVL. All of those efforts failed. On the day he was called to give evidence, the court could hear Mr Whitford but not see him. I took the view that it was unfair to Mr Bennett, particularly as he was a self-represented litigant, to have Mr Whitford give his evidence without him being seen on the screen. In those circumstances I ruled that the prosecutor could not call any evidence from Mr Whitford (Tcpt 111/38-113/50).

Mr Jeffrey Carey

88. Mr Carey was employed at the time of the incident as the operator of the Moss Vale STP. He had been employed by the Council for about 30 years. Mr Murray Ellis was his assistant.

89. At the time of the incident, it was possible to drive onto the site by entering a farm gate, driving across an easement, and driving past the office. There was a requirement for contractors to be inducted to the site before they started work. On 25 October 2018 one of the contractors working at the site was Arkwood. They were dewatering the sludge lagoons.

90. Mr Carey said that he did not conduct any risk assessments or scrutinise a contractor’s SWMS.

91. This was done by “management” meaning the managers of the sewerage department of the Council, who were based in Mittagong.

92. Mr Carey arrived at work at about 6.30am on 25 October 2018. He saw two Arkwood workers on site. He knew they needed a crane to help them pack up the equipment and put it on the trailer. At lunch time Mr Carey left the site and went to Moss Vale to attend a design meeting. When he left the crane was not on site. Endeavour Energy were also working on site that day. While Mr Carey was at the meeting, he was called by Endeavour Energy to return to the site as a rising main had been severed. When Mr Carey came back to the site he was working with the Endeavour Energy crew and was a couple of hundred metres away from a crane, which he recognised as a Highlands crane. He assumed that Mr Bennett was driving the crane, because that is who usually drove it to the site. He had known Mr Bennett then for about 15-20 years. Council had used Highlands Cranes on a regular basis.

93. Mr Carey heard an explosion and looked towards the area where the crane was working. He saw a big black plume of smoke. He saw that the crane had contacted the power lines. He asked Endeavour Energy, who fortuitously was still on site, to cut off the power to the power lines. He went to the area of the explosion and identified the crane driver who he said “was not in a good way”. He had not met that person before. He had no conversation with him, as he was concerned to assist with the injured workers.

94. Mr Carey recalled Mr Bennett arriving on site after the incident had occurred. Managers from the Council arrived and Mr Carey dealt with them. Mr Bennett moved the crane, after he had lowered the boom. It was moved back a bit.

95. Mr Carey was cross-examined by Mr Bennett. Mr Carey acknowledged that over the years Mr Bennett was rarely late to a site. Mr Carey said that if someone signed the induction form, that would mean they had gone through the entire induction process. He repeated that he did not assess the SWMS, and that that was done by management. His understanding was that a contractor coming to the site would do their own Job Safety Analysis (JSA) but that was up to the contractor. He expected that any crane which came to the job would be operated by a ticketed crane driver. Mr Carey acknowledged that when Mr Bennett had come to the site he had always signed in.

96. Mr Carey said that if a man turned up to operate the crane and he was not ticketed, he would tell that person to get out of the crane and wait for the ticketed operator to arrive.

97. Mr Carey said that Mr Ellis was off work that day, so that when Mr Carey went into town for the lunch time meeting, there was no Council person on site.

98. I asked Mr Carey about the procedure for carrying out the site induction. Where there was a box on the site induction saying “White card and/or other tickets” the standard practice of Mr Carey was to ask to see the white card or the tickets. Where the box referred to a SWMS from the contractor, Mr Carey said that his standard practice was to sight this paperwork, but it would have been signed off by management. All he wanted to see was that there was a piece of paper that matched the description of a SWMS, without analysing it himself. That was the job of management.

99. I accept the evidence of Mr Carey.

Mr Malcolm Lindsay

100. Mr Lindsay was the Work Health and Safety and Risk Coordinator for the Council. On 25 October 2018 he was at the Civic Centre when he received the news of the incident at the Moss Vale STP. He and another employee went to the site.

101. In cross-examination Mr Lindsay was asked whether it would be possible for a subcontractor to begin work without holding a white card. Mr Lindsay said that some of the work on Council sites required white cards and some did not. It was part of the review process for the tendering of work that Council would check that contractors had the appropriate tickets and qualifications.

102. I accept the evidence of Mr Lindsay.

Documentary Evidence

Prosecution Tender Bundle

103. The Prosecution Tender Bundle consisted of one folder (PX 1). The transcript indicates rulings made from time to time regarding the material behind each tab in PX 1. Witnesses were taken to documents in PX 1 by reference to tab numbers.

The Business Conducted by Mr Bennett

104. Mr Bennett was the holder of the Highlands Cranes business name (PX 1, Tab 11) and his ABN was used for the Highlands Cranes business (PX 1, Tab 12). The Franna Crane involved in the incident was registered and branded with the name “Highlands Cranes” (PX 1, Tab 4, photos 5 and 7). There was no dispute that Mr Bennett operated the business of Highlands Cranes (Tcpt 154/20).

105. Mr Druce did not have a Crane Licence as at 25 October 2018. This was not in dispute. Mr Druce did not obtain his crane licence until 10 December 2018 and his dogging licence until 8 May 2019 (PX 1, Tab 9). At the time of the incident Mr Druce was employed by Mr Bennett and was being trained to operate a crane. He was however entitled to drive the crane on public roads as he had a heavy vehicle licence.

Wingecarribee Shire Council Site Induction Procedure

106. The Site Induction Procedure for the Moss Vale STP is at PX 1, Tab 10. All visitors had to sign in at the office and complete a Site Induction Form. The form completed by Mr Voight is at p 130 and the form completed by Mr Whitford is at p 131. Both were inducted to the site by Mr Murray Ellis, who was the assistant to Mr Jeffrey Carey, the site manager. There was no induction conducted in relation to Mr Druce.

Medical Reports

107. Medical records for Mr Voight and Mr Whitford are at PX 1, Tabs 13 and 14. Suffice it to say that Mr Voight suffered extremely serious injuries and Mr Whitford suffered significant injuries. An Ambulance Retrieval Record (PX 1, Tab 15) shows that NSW Ambulance was first contacted at 2.54pm on 25 October 2018. The incident must have happened a very short time before that.

Pre-Incident SWMS

108. The pro forma pre-incident SWMS is at PX 1, Tab 5. It is a generic document and not a site-specific one. It is said to apply to “General Lifting”. The paragraphs include the following:

1. Before operating the crane, the operator will liaise with the principal contractor to ensure optimum planning for safe operation.

2. Only crane operators with the relevant WorkCover NSW certificate or permits are permitted to operate the crane.

109. Section 1 of the SWMS deals with “Site checks before operating”. Subparagraph (e) says:

“Check for power lines and correct distance is kept in accordance to AS25590, and if necessary, a spotter is employed for assistance to the operator.”

110. The second page of the SWMS contains boxes which can be filled in dealing with the topics of “Pre lift checks”, “The Load”, “Safe Use of Crane” and “Dismantling”.

111. The third page of the SWMS is headed “Lift Plan”. It requires the operator to write in the procedure in steps, possible hazards, safety risks and control measures.

112. There is no completed SWMS for the day of the incident. There is no evidence that the SWMS was referred to before the crane performed lifting work on the site, or that the blank boxes in the SWMS were completed by Mr Bennett or Mr Druce, before work commenced.

Post-Incident SWMS

113. The post-incident SWMS is at PX 1, Tab 6. This document was issued on 29 April 2020. In Step 4, one possible hazard which is listed is “Collisions to plant or obstacles when slewing crane, electrocution”. The safety control for that hazard is:

“Clear tail swing area, watch for overhead obstacles and keep mandatory distances from powerlines. Distance from Low voltage on poles 6.4mts or 3m with Spotter, High voltage on towers 10mts or 8mts with spotter. Use Electrical Spotter if required.”

114. Step 6 deals with “Lift and control load”. One possible hazard is “Electrocution”. The safety control is “Crane and load to keep mandatory distances from live power. Vigilance of live cables at all times”. The SWMS says that the control measure is to be implemented by:

“Dogger/Rigger or Electrical Spotter (if required).”

115. The responsibility for controlling this risk rests with the “Crane crew/spotter”.

116. Page 6 of the post-incident SWMS has boxes to deal with “Extra on site Identified Procedures” and “Site Specific Hazards”.

117. Page 9 of the post-incident SWMS provides space for the SWMS to be “Read, agreed and signed below by all employees involved in the work on site”. Crane operators have to provide their certificate number. So do doggers and riggers. Page 10 of the post-incident SWMS provides space for all other workers involved with lifting activity, who have been consulted, to sign onto the SWMS.

Code of Practice

118. The prosecutor tendered the WorkCover NSW Code of Practice 2006 entitled “Work Near Overhead Power Lines” (Code of Practice) (PX 1, Tab 12). The purpose of the Code of Practice is set out in s 1.2 as follows:

“This code of practice provides practical guidance in order to protect the health and safety of persons working near overhead power lines and associated electrical apparatus. It provides guidance on the risk control measures, competency requirements and approach distances to live electrical conductors, including no go zones for cranes and plant (and their loads), as well as for vehicles, individuals and hand-held tools. It applies to persons with varying levels of qualification, training or knowledge.”

119. The Code of Practice applies to work which is carried out near overhead power lines and associated electrical apparatus – s 1.3.

120. Chapter 2 of the Code of Practice deals with “Consultation and Risk Management”. Section 2.2 headed “Risk Management at the Workplace” says:

“The process of risk assessment and control is made up of the following steps:

•   Identify the hazards.

•   Assess the risk(s) to the health and safety of persons arising from the hazards.

•   Use appropriate control measures to eliminate or control the risk(s).

•   Monitor and review the control measures to ensure on-going safety.”

121. Section 2.2.2 of the Code of Practice says that the factors that need to be considered in a risk assessment should include:

“•   Harm that can be caused by exposure to the hazard.

•   Number of people and the duration and frequency of exposure to the hazard.

•   Capability, skill and experience of people exposed to the hazard.”

122. Section 2.2.3 of the Code of Practice is headed “Eliminate or Control the Risk”. It says that the risk can be eliminated by discontinuing the work activity or arranging for de-energising the overhead power lines. It says that the risk can be minimised by a number of steps, one of which is:

“Adopting administrative controls, by example, signage, warning barriers marking the work site, safe work procedures such as maintaining a safe distance from overhead power lines and using a safety observer to warn people before they encroach the approach distances specified in this Code.”

123. Section 2.3 of the Code of Practice deals with “Information, Instruction, Training and Supervision”. It says that work near overhead power lines “should not be performed unless those performing the work have received appropriate instruction and training”. It also says that “employers must provide adequate supervision”. It specifically refers to the need to supervise crane and plant operators working near overhead power lines.

124. Section 2.2 of the Code of Practice deals with “Preparation for Work to Commence”. It says:

“Careful planning and preparation is an essential step to ensure that work is done safely. When preparing for the commencement of work all controls indicated by the risk assessment(s) and Safe Work Method Statement(s) as applicable must have been put in place and that no new hazards exist, or have been created.”

125. Chapter 3 of the Code of Practice deals with “Approach Distances when Working near Overhead Power Lines”. Table 1, on p 23 of the Code of Practice, says that the approach distance for power lines up to 132 kV is three metres.

126. Section 3.9 of the Code of Practice is headed “Safety Observer – General Requirements”. It says:

“The Safety Observer is a person specifically assigned the duty of observing the work near overhead power lines and associated electrical apparatus in order to –

•   warn personnel or the crane or plant operator so as to ensure the approach distances are being maintained and

•   warn of any other unsafe conditions.

The Safety Observer must –

•   be used whenever the work activity is likely to be performed in the Accredited Person Zone.”

127. None of the three men working near the overhead power lines on the day of the incident was an “Accredited Person” as defined in s 1.8 of the Code of Practice.

128. Appendix 2 of the Code of Practice sets out an example of a risk assessment checklist (pp 55-56). Appendix 3 of the Code of Practice sets out an example of a Safe Work Method Statement (pp 57-59).

129. Section 275 of the Act relates to the use of Codes of Practice in proceedings. Section 275 says:

“(1)   This section applies in a proceeding for an offence against this Act.

(2)   An approved code of practice is admissible in the proceeding as evidence of whether or not a duty or obligation under this Act has been complied with.

(3)   The court may—

(a)   have regard to the code as evidence of what is known about a hazard or risk, risk assessment or risk control to which the code relates, and

(b)   rely on the code in determining what is reasonably practicable in the circumstances to which the code relates.

Note—

See section 18 for the meaning of reasonably practicable.

(4)   Nothing in this section prevents a person from introducing evidence of compliance with this Act in a manner that is different from the code but provides a standard of work health and safety that is equivalent to or higher than the standard required in the code.”

Work Health and Safety Regulation 2017 (NSW)

130. Clause 166 of the Work Health and Safety Regulation 2017 (NSW) (the Regulation) provides as follows:

“(1)   A person conducting a business or undertaking at a workplace must ensure, so far as is reasonably practicable, that no person, plant or thing at the workplace comes within an unsafe distance of an overhead or underground electric line.

(2)   If it is not reasonably practicable to ensure the safe distance of a person, plant or thing from an overhead or underground electric line, the person conducting the business or undertaking at the workplace must ensure that—

(a)   a risk assessment is conducted in relation to the proposed work, and

(b)   control measures implemented are consistent with—

(i)   the risk assessment, and

(ii)   if an electricity supply authority is responsible for the electric line, any requirements of the authority.”

Clause 299 of the Work Health and SafetyRegulation2017 (NSW)

131. Clause 299 of the Regulation provides as follows:

“(1)   A person conducting a business or undertaking that includes the carrying out of high risk construction work must, before high risk construction work commences, ensure that a safe work method statement for the proposed work—

(a)   is prepared, or

(b)   has already been prepared by another person.

…

(2)   A safe work method statement must—

(a)   identify the work that is high risk construction work, and

(b)   specify hazards relating to the high risk construction work and risks to health and safety associated with those hazards, and

(c)   describe the measures to be implemented to control the risks, and

(d)   describe how the control measures are to be implemented, monitored and reviewed.

(3)   A safe work method statement must—

(a)   be prepared taking into account all relevant matters, including—

(i)   circumstances at the workplace that may affect the way in which the high risk construction work is carried out, and

(ii)   if the high risk construction work is carried out in connection with a construction project—the WHS management plan that has been prepared for the workplace, and

(b)   be set out and expressed in a way that is readily accessible and understandable to persons who use it.”

132. The phrase “high risk construction work” which appears in cl 299 of the Regulation is defined in cl 291 to include construction work that “is carried out on or near energised electrical installations or services”.

Expert Evidence

133. Counsel for the prosecutor tendered the expert report of Mr Joshua Kent (PX 1, Tab 16), who is Acting Manager of the Engineering Team for SafeWork NSW. He is a technical specialist in the Engineering Team. Mr Kent is qualified to provide advice on cranes, dogging and rigging. Only selected portions of the report were allowed into evidence. Those parts of the report admitted were:

1. Pages 1-8.

2. Paragraphs 11.1.18, 19, 27, 30.

3. Paragraphs 11.2.2, 4, 5.

4. Paragraph 11.5.6.

5. Paragraphs 11.6.2, 3, 4.

6. Appendices A, B and C.

134. Mr Kent was cross-examined about part of his report which was critical of the set-up of the chains on the conveyor. He agreed that the way the chains had been set up showed “pretty poor dogging”. He did not agree that the person was not a ticketed dogman, saying “Because I don’t necessarily believe that the qualification and the competence go hand-in-hand”. He did say that the dogging was not very well done and eventually agreed that it was “incompetent”.

135. I accept the evidence of Mr Kent.

Evidence for the Defendant

136. Mr Bennett did not give evidence. There is no inference of any sort to be drawn from that fact.

137. Mr Bennett called Mr Leonard Compagnoni as a witness. He owns the business Castle Cranes. He has a crane ticket and operates a slewing crane and a Franna Crane. He has operated the Franna Crane for 18 years. He is based in Mittagong. Mr Compagnoni has known Mr Bennett for about 20 years. They have worked on jobs together and have done dual lifts with their cranes. He regards Mr Bennett as an “exceptional” crane driver and dogman. He said that Mr Bennett regards safety as “paramount”.

138. Mr Compagnoni said that he had done work for Arkwood for six or seven years. This was on jobs performed with Arkwood at the Council treatment works. On some occasions Arkwood had booked a crane alone, and on other occasions they had booked a crane and a dogman.

139. Mr Compagnoni produced five purchase orders from Arkwood to Castle Cranes dated 7 May 2018, 22 October 2019, 4 November 2019, 7 May 2020 and 21 May 2020 (DX 1). On the first two purchase orders a crane only was required. On the last three Arkwood requested a crane and a dogman. Castle Cranes only supplied what was requested. If a dogman was requested, that meant an extra man was supplied and an extra charge was made.

140. Mr Compagnoni had worked with Arkwood employees when those employees performed the dogging duties. He had assumed that they were ticketed dogmen. He said that it was their equipment and they knew how to pack it up. They were giving directions to him as the crane operator. He said that they seemed to know what they were doing.

141. I accept the evidence of Mr Compagnoni.

Findings of Fact: Agreed Matters

142. During closing submissions, counsel for the prosecutor handed up a list of the factual findings which he asked the court to make (MFI 3). A copy of that document was supplied to Mr Bennett and he was given time to reflect upon it. After consideration, Mr Bennett indicated that he disputed the facts numbered 4, 8, 13, 14 and 15 but he agreed to the balance of the facts which the prosecutor asked the court to find.

143. The 22 facts which the prosecutor asked the court to find are set out below. The five facts which were disputed by Mr Bennett are reproduced, but with the word “DISPUTED” before each fact.

144. The factual findings sought by the prosecutor were as follows:

1. On 25 October 2018, Arkwood has arranged for Highlands Cranes to supply a Franna crane to the Moss Vale STP for arrival at 1.00pm.

2. Mr Bennett was intending to attend the site and provide crane services.

3. Mr Druce was employed by Mr Bennett as at 25 October 2018.

4. [DISPUTED] Mr Druce was intending to attend the site to provide assistance with dogging work.

5. Mr Bennett was not able to attend the site at the required time and rang Mr Druce and directed him to drive the Franna Crane to site.

6. Mr Druce was licensed to drive the crane on roadways.

7. Contactors attending the site were required to register and be inducted prior to commencing work.

8. [DISPUTED] Mr Druce was not instructed by Mr Bennett to follow site procedures when he arrived at the site.

9. Mr Druce was instructed by Mr Bennett by telephone after he arrived at the site to make himself known to the Arkwood employees present.

10. Mr Voight and Mr Whitford were employed by Arkwood at the site.

11. Mr Voight and Mr Whitford were engaged in a process of disassembling a centrifuge and its component parts when Mr Druce arrived.

12. The disassembled parts of the centrifuge were required to be lifted onto the waiting semitrailers utilising the Franna Crane.

13. [DISPUTED] Mr Druce was informed by Mr Bennett by telephone that it was a simple job, that the Arkwood employees were very experienced and that they were qualified dogmen.

14. [DISPUTED] Mr Druce was instructed by Mr Bennett to carry out the craning of the centrifuge parts until Mr Bennett could attend.

15. [DISPUTED] Mr Druce carried out the cranage work for some time until shortly before 3.00pm when an attempt was made to lift a large conveyor belt.

16. As the conveyor belt was raised from the ground Mr Voight and Mr Whitford were touching the item to steady it when the boom of the crane came in close contact with the overhead powerlines.

17. Both Mr Voight and Mr Whitford were injured by the conveyor belt becoming energised.

18. Mr Druce had not been instructed to carry out a risk assessment, a SWMS, or discuss with the Arkwood employees the steps that need be taken to eliminate or minimise the presence of the overhead powerlines before commencing cranage work.

19. Mr Druce had a short conversation with the Arkwood employees about potential site issues when he arrived, that discussion recognised the presence of the power lines.

20. As at 25 October 2018, Mr Druce did not hold a licence to drive a crane nor a licence as a dogman.

21. Emergency services were contacted at 2.54pm, nearly two hours after the crane was due to attend the site.

22. Mr Bennett arrived after the incident had occurred.

Findings of Fact: Disputed Matters

145. In relation to Fact 4 set out above, I find that the task of Mr Druce was to drive the crane to the site and wait for the arrival of Mr Bennett. I further find that Mr Druce was then to work under the direction of Mr Bennett, to provide whatever assistance he requested. If Mr Bennett had asked Mr Druce to assist with dogging work, he would have done it, under the supervision of Mr Bennett. However, neither Mr Bennett nor Mr Druce intended that Mr Druce would attend at the site and act as a dogman. He was not qualified to do so.

146. In relation to Fact 8, I find that Mr Druce was not instructed by Mr Bennett to follow site procedures when he arrived at the site. Mr Druce acknowledged that he was not instructed by Mr Bennett to sign in or go through a site induction, and there was no evidence to the contrary.

147. In relation to Fact 13, I find that Mr Bennett did say to Mr Druce by telephone that it was a simple job, that the Arkwood employees were very experienced and that they were qualified dogmen. This is what Mr Druce told the SafeWork NSW inspector in an interview shortly after the incident. There was no evidence to the contrary.

148. In relation to Fact 14, I find that Mr Druce was instructed by Mr Bennett to carry out the cranage of the centrifuge parts until Mr Bennett could attend. While the two Arkwood employees may have put some pressure on Mr Druce to start work, I find that Mr Druce did consult Mr Bennett by telephone, and was told that he could start work on the site, because Mr Bennett believed that the two Arkwood men were qualified dogmen and he thought nothing could go wrong. Mr Druce did not say that he decided to operate the crane without first hearing from Mr Bennett, or in defiance of anything which Mr Bennett said to him. Mr Bennett never suggested to Mr Druce in cross-examination that Mr Druce embarked on a frolic of his own. Nor did he suggest that Mr Druce was telling untruths in his two Records of Interview, or in the previous Arkwood proceedings.

149. In relation to Fact 15 above, all the evidence shows that Mr Druce did carry out cranage work for some time until shortly before 3.00pm when an attempt was made to lift a large conveyor belt. Mr Druce said that he put several pieces on the trailer, before attempting to lift the conveyor. Mr Druce said that this was the last piece of equipment to go onto the truck. The photos of the incident scene do not show any other parts of the centrifuge sitting on the grass waiting to be craned onto the trailer. I find that everything else had been put onto the trailer by Mr Druce before he attempted to lift the conveyor belt.

150. I therefore make all of the findings of fact sought by the prosecutor in MFI 3, save that Fact 4 is modified as follows:

“Mr Druce was intending to attend the site to provide assistance as directed by Mr Bennett. Such assistance could have included dogging work, under the supervision of Mr Bennett, if Mr Bennett so directed.”

Submissions for the Prosecutor

151. Counsel for the prosecutor submitted that the evidence showed that Mr Bennett was conducting a business or undertaking and that he owed a health and safety duty under the Act to Mr Druce as a worker and to Mr Voight and Mr Whitford as other persons on the site. He submitted that the crane came to the site pursuant to an order from Arkwood, although there was no written order in evidence (Tcpt 139/31).

152. Counsel for the prosecutor submitted that the statements made by Mr Druce in his Records of Interview should be accepted as truthful and correct. I accept that submission for reasons set out above. Mr Druce did not have a ticket to drive a crane or a ticket to do dogging work. Mr Druce had expected to meet Mr Bennett on site at about 1.00pm. The incident occurred shortly before 3.00pm. Mr Druce started work operating the crane picking up pieces of the centrifuge as directed by Mr Voight and Mr Whitford and placing them on the trailer. Mr Voight and Mr Whitford were dogging the chains on those pieces of equipment. The last item to be loaded was the conveyor belt. When Mr Druce raised the boom of the crane it contacted, or came in close proximity to, the overhead power lines. Mr Voight and Mr Whitford received severe electric shocks.

153. Counsel for the prosecutor submitted that Mr Druce had rung Mr Bennett, when Mr Voight and Mr Whitford were impatient to start work with the crane. He submitted that Mr Bennett had told Mr Druce over the phone to go ahead and start doing the cranage work. I accept that submission for reasons set out above.

154. Counsel for the prosecutor relied upon the Code of Practice and upon the Regulation as evidence of the reasonably practicable steps that could and should have been taken to control the risk posed by the overhead power lines. He submitted that Mr Druce should never have been permitted to drive the crane in the first place, but as an alternative, if he was to operate the crane, the reasonably practicable steps pleaded in the two Summonses should have been taken to minimise the risks involved. Counsel for the prosecutor submitted that even though Arkwood and the Council had health and safety duties, s 16 of the Act meant that each duty holder must comply with their duty to the standard required by the Act, even if another duty holder has the same duty.

155. Counsel for the prosecutor submitted that all four elements of the offence were proved beyond a reasonable doubt. In the case of the fourth element, he submitted that the breach by Mr Bennett of his duty had contributed or significantly contributed towards the three men being exposed to the risk of injury or death.

Submissions for the Defendant

156. Mr Bennett had prepared a written address which he read out to the court. He said:

“I would like to reiterate that Highlands Cranes was a successful, profitable, well-respected local business in the southern highlands for 15 years prior to the accident on 25 October 2018. My intention on that day was to have Kane Druce drive the crane onto the site and setup ready for my arrival. Kane was never instructed to commence operation of the crane. SafeWork is suggesting that I intended to place an unticketed driver to undertake crane operations on a council site. I strongly refute this proposition. With the correct workplace safety procedures in place by council - an unticketed driver would have been unable to proceed with any crane lift.

It is also agreed that Kane Druce had not been inducted into the site by council staff. In addition - allowing that Arkwood ordered the crane with a dogman - which I strongly dispute - the job should never have proceeded without said dogman and ticketed crane operator. The personal impact of this event has been devastating. Whilst of course the impact on Mr [Voight] and Mr Whitford have been catastrophic and long-lasting - I have also been affected. My business has suffered. I have lost all council contracts. My crane business is down by 85%.

I now undertake general labouring and maintenance work, including reselling used pallets of bricks, to ensure I have money for day to day living. The weight of this trial has weighed heavily on my mental health, and I work hard to ensure that lingering depression does not take hold. I live and work only in the Southern Highlands and the loss of my personal and professional reputation has devastated both myself and my business. I would like to thank your Honour and his esteemed colleagues for your patience and understanding, in particular with my self representation and lack of legal experience. Thank you.”

157. In his closing address Mr Bennett indicated the findings of fact in MFI 3 with which he agreed and those with which he disagreed (Tcpt 153/23-154/15).

158. Mr Bennett disputed the submission of counsel for the prosecutor that the conveyor was the last piece of equipment to be loaded (Tcpt 153/13). He submitted that it was only the third piece of equipment which was on its way to be loaded and that there were 20 or more pieces still to be loaded onto the truck. I asked Mr Bennett where he obtained this impression. He referred to evidence given in the previous trial of Arkwood, but it was pointed out to him that evidence in the previous trial had not been tendered as evidence in this trial (Tcpt 155/8-33).

Consideration of Element 1 – Whether Mr Bennett was Conducting a Business or Undertaking

159. It was not in dispute that Mr Bennett was conducting a business as a crane supplier and operator under the business name “Highlands Cranes”.

160. I am satisfied beyond reasonable doubt that Mr Bennett was conducting a business or undertaking.

Consideration of Element 2 – Whether Mr Bennett Owed a Duty

161. It was not in contest that Mr Bennett owed a health and safety duty under s 19 of the Act. Section 19 requires a person conducting a business or undertaking to ensure, so far as is reasonably practicable, the health and safety of workers and other persons. Section 17 of the Act provides that a duty imposed on a person to ensure health and safety requires the person to eliminate risks to health and safety so far as is reasonably practicable, and if it is not reasonably practicable to eliminate risks to health and safety, to minimise those risks so far as is reasonably practicable.

162. I am satisfied beyond reasonable doubt that Mr Bennett owed a health and safety duty.

Consideration of Element 3 – Whether Mr Bennett Failed to Comply with the Health and Safety Duty

163. As previously recited, a person conducting a business or undertaking must eliminate risks to health and safety so far as is reasonably practicable, and if it is not reasonably practicable to eliminate risks to health and safety, to minimise those risks so far as is reasonably practicable.

Reasonably Practicable – s 18

164. The phrase “reasonably practicable” is defined in s 18 of the Act. It requires the court to take into account and weigh up all relevant matters, including those listed in subpars (a)-(e) in s 18.

165. I set out the findings of fact relevant to the matters which s 18 says should be taken into account.

The Likelihood of the Risk Occurring – s 18(a)

166. The overhead power lines carried electricity at high voltage. The evidence shows that the crane had been driven underneath the power lines on more than one occasion in order to take components of the centrifuge to the semi-trailer. The conveyor belt was a large piece of machinery which needed to be lifted by the crane and transported to the semi-trailer. To lift the centrifuge involved raising the hook and/or the boom. While the conveyor belt was not situated underneath the power lines, it was only a short distance away from them, so that the crane was operating to lift the conveyor belt while it was under the power lines.

167. In the light of those facts there was a significant likelihood that there might be inadvertent contact between the boom and overhead power lines when the boom was raised in the process of lifting up the conveyor belt.

168. To put it another way, the risk that the boom would come into inadvertent contact with the overhead power lines was reasonably foreseeable. In making this finding, I assess the likelihood of the risk prospectively and not retrospectively.

The Degree of Harm that Might Result in the Risk – s 18(b)

169. High voltage electricity transmitted through the metal boom, the metal chains and the metal conveyor belt to workers who were essentially earthing the conveyor belt, meant that the harm that might result from the risk was serious injury or death.

What the Defendant Knew or Ought Reasonably to have Known – s 18(c)

170. In relation to knowledge of the hazard or risk, the defendant as an experienced crane operator must have had actual knowledge of the hazard constituted by the overhead power lines. Mr Bennett said that he had worked on the site before. He must have observed the presence of the overhead power lines and taken the danger constituted by them into account on previous occasions. Mr Druce observed the presence of the overhead power lines but Mr Druce apparently failed to take the danger which they posed into account. No doubt this was through his inexperience.

171. Mr Bennett ought reasonably to have known about the hazard or risk which arose from the boom of the mobile crane coming into contact with, or coming into the vicinity of, the overhead power lines.

172. As to what Mr Bennett knew or ought to have reasonably known about ways of eliminating or minimising the risk, Mr Bennett himself had stated in his pre-accident SWMS that the operator should:

“Check for power lines and correct distance is kept in accordance to AS25590, and if necessary, a spotter is employed for assistance to the operator.”

173. This demonstrates that the defendant knew of a way of minimising the risk.

174. Further, Mr Bennett ought reasonably to have known about ways of minimising the risk, since the Code of Practice and cl 299 of the Regulation made it plain that a risk assessment had to be conducted in relation to the proposed work and that control measures had to be implemented consistent with such risk assessment.

Availability and Suitability of Ways to Eliminate or Minimise the Risk – s 18(d)

175. Mr Bennett’s pre-incident SWMS nominated several ways of minimising the risk. Firstly, there had to be a check for power lines. Secondly, a correct distance had to be kept from those power lines. Thirdly, a spotter had to be employed if necessary to assist the operator.

176. Further, conducting a proper site-specific risk assessment, forbidding Mr Druce to do any cranage work without a prior joint safety assessment being completed with Mr Voight and Mr Whitford, confirming that the crane was set up in an appropriate location and was not in the vicinity of overhead power lines, and requiring Mr Druce to work with a dedicated spotter or a qualified dogman on site would have assisted in minimising the risk.

177. All of these measures were available and suitable and could have been achieved by Mr Bennett mandating that Mr Druce should take those steps.

The Cost Associated with Available Ways of Eliminating or Minimising the Risk – s 18(e)

178. There was no significant cost to Mr Bennett in taking appropriate measures. The existing SWMS was updated after the incident. There was no evidence of any cost to Mr Bennett if he had taken any of the steps pleaded in the Summonses. He should have forbidden Mr Druce to operate the mobile crane and insisted that he did not do so until Mr Bennett arrived. This would have eliminated the risk. Mr Bennett should have insisted that no work be done in any event, until there had been a joint safety assessment completed involving Mr Voight and Mr Whitford.

Reasonably Practicable – As Pleaded

179. I will now deal with the more general question of whether the defendant failed to comply with its health and safety duty to ensure, so far as was reasonably practicable, the health and safety of the nominated persons. I have set out my findings of fact in relation to the factors to be taken into account on the issue of reasonable practicability. In summary, the facts support the following propositions:

1. There was a significant likelihood that the pleaded risk would occur. The risk was reasonably foreseeable.

2. The degree of harm that might result from the risk was significant.

3. The defendant had actual knowledge of the hazard and risk and further, ought reasonably to have known of the hazard or risk.

4. The defendant had actual knowledge of the ways of eliminating or minimising the risk.

5. There were available suitable ways to eliminate or minimise the risk.

6. The costs to the defendant of the available ways of eliminating or minimising the risk were not significant and were not grossly disproportionate to the risk.

180. The words “reasonably practicable” indicate that the duty does not require a person conducting a business or undertaking to take every possible step that should be taken. Simply demonstrating that a step could have been taken and that, if taken, it might have had some effect on the safety of a working environment does not, without more, demonstrate that an employer has breached its duty: Baiada at [15] and [38].

181. The question is to be determined by the application of common sense to the facts, bearing in mind that the purpose of the inquiry is to attribute legal responsibility in a criminal matter: Royall.

182. I will now consider each of the reasonably practicable measures which are particularised in the subparagraphs of par 12 of the Section 19(1) Summons and par 8 of the Section 19(2) Summons.

Forbidding Mr Druce to Operate the Crane

183. Paragraph (a) pleads that one of the reasonably practicable steps would have been to instruct Mr Druce not to operate a mobile crane at the site as he was unlicensed and did not hold the appropriate qualifications to do so. This is such a basic proposition that it only needs to be said to be accepted.

184. I find that the step pleaded in par (a) did constitute a reasonably practicable measure which Mr Bennett should have taken.

Provide an Appropriately Qualified Crane Driver

185. Paragraph (b) pleads that Mr Bennett should have provided an appropriately qualified crane driver to set up and operate the crane at the site. Again, this is self-evident. In fact, it was Mr Bennett’s plan on the day that he would come to the site and operate the crane, but he was held up at another job. Mr Druce was not an appropriately qualified crane driver, and nor was he experienced enough to operate the crane, as events on the day demonstrated.

186. I find that the step pleaded in par (b) did constitute a reasonably practicable measure which Mr Bennett should have taken.

A Site Induction

187. Paragraph (c) pleads that Mr Bennett should have instructed Mr Druce to report to the office and undergo a site induction prior to commencing any work at the site. I find that this should have been done. Mr Bennett should have told Mr Druce that he was not to go onto a new site and do work, without undergoing a site induction. It is not to the point that Mr Carey was not at the site at the time that Mr Druce arrived. If there was a rule on the site that there had to be a site induction, then that rule should have been followed. The utility of the site induction was demonstrated by the evidence of Mr Carey, which was that the standard practice when conducting the site inductions was to require a new person arriving at the site to produce their ticket or card as evidence of their qualifications.

188. I find that the step pleaded in par (c) did constitute a reasonably practicable measure which Mr Bennett should have taken.

A Joint Safety Assessment

189. Paragraph (d) pleads that Mr Bennett should have required and instructed Mr Druce to perform no work relating to the cranage without a prior joint safety assessment being completed with Mr Voight and Mr Whitford. Such an assessment is mandated by the Code of Practice and required by the Regulation. The reasons for this are obvious. Everyone on the site who is exposed to the risk has to put their heads together and identify the risks and the appropriate control measures. If this step had been taken, the proximity of the crane to the overhead power lines would have been properly assessed and steps could have been taken to eliminate or minimise that risk.

190. I find that the step pleaded in par (d) did constitute a reasonably practicable measure which Mr Bennett ought to have taken.

The Location of the Crane

191. Paragraph (e) pleads that Mr Bennett should have confirmed that the mobile crane was set up in an appropriate location at the site and was not in the vicinity of overhead power lines on the site prior to being operated. I find that proceedings should never have got to that stage, as Mr Bennett should have instructed Mr Druce not to do anything by way of operating the crane until Mr Bennett arrived on the site. The appropriate location for the crane was with the boom down and nowhere in the vicinity of overhead power lines. It should have remained in that position until Mr Bennett arrived.

192. I find that the step pleaded in par (e) did constitute a reasonably practicable measure which Mr Bennett should have taken.

No Work Without a Dedicated Spotter

193. Paragraph (f) pleads that Mr Bennett should have required and instructed Mr Druce to perform no work in the vicinity of the power lines without a person acting as a dedicated spotter. Once again the need for a spotter should never have arisen as Mr Druce should have been forbidden from operating the crane. However, the Code of Practice does say that a person should act as a spotter if work is being conducted in the vicinity of power lines. This is a step which was definitely needed for this particular Franna Crane, as the operator sitting in the cabin had no vision of the head of the boom and could thus not know where it was in relation to any overhead power lines. If Mr Druce was to operate the crane (and I have already found that he should have been forbidden from doing so), then Mr Bennett should have arranged for Mr Voight or Mr Whitford to act as a dedicated spotter.

194. I find that the step pleaded in par (f) did constitute a reasonably practicable measure which Mr Bennett should have taken.

A Qualified Dogman

195. Paragraph (g) pleads that Mr Bennett should have provided or required that a qualified dogman was on site to assist with crane operations at the site. Mr Bennett was of the view that the two Arkwood employees were qualified dogmen. The evidence of Mr Compagnoni establishes that Arkwood employees had acted on prior occasions as dogmen in relation to loading the disassembled centrifuge back onto the semi-trailer. While, as Mr Kent said, there is no necessary correlation between certification and competence, if Mr Bennett was going to allow a trainee crane driver to operate the Franna Crane, he should have checked that assistance was being provided by a qualified and ticketed dogman. Obviously Mr Voight and Mr Whitford did not realise the risk posed by the power lines and the proximity of the crane to them, but a qualified dogmen should have done so, if on site.

196. I find that the step pleaded in par (g) did constitute a reasonably practicable measure which Mr Bennett should have taken.

Site-Specific Risk Assessment

197. Paragraph (h) pleads that Mr Bennett should have conducted a site-specific risk assessment to identify the hazards of crane works at the site, in particular in relation to working in the presence of high voltage overhead power lines traversing the site and the use of a mobile crane in this area and control measures to eliminate or minimise the identified risks. This is something required by the Code of Practice and the Regulation. Mr Bennett should have forbidden Mr Druce to operate at the site at all. However, if he was going to permit him to do so, he should have insisted that a site-specific risk assessment be conducted to identify hazards and control measures.

198. I find that the step pleaded in par (h) did constitute a reasonably practicable measure which Mr Bennett should have taken.

Conclusion on Element 3

199. I am satisfied beyond reasonable doubt that Mr Bennett failed to comply with his health and safety duty.

Consideration of Element 4 – Whether the Breach of Duty Exposed Persons to a Risk of Death or Serious Injury

200. The relevant question on causation is not whether the failures of the defendant were the cause of the injuries to Mr Voight and Mr Whitford, but whether the acts or omissions of the defendant were a substantial or significant cause of Mr Voight, Mr Whitford and Mr Druce being exposed to the risk of injury: Bulga at [127], [130].

201. That question must be considered in the light of the objects of the Act and the provisions contained in s 19(1) and s 19(2) of the Act, namely to ensure the health and safety of workers: Bulga at [129]-[130]. The fact that third parties (in this case the Council and Arkwood) missed opportunities to eliminate or minimise the risk in question does not mean that the court is precluded from finding that the defendant’s failure substantially contributed to the risk: Simpson Design and Associates Pty Ltd v Industrial Court of New South Wales [2011] NSWCA 316 at [117].

202. The Court of Criminal Appeal recently considered the issue of causation in Grasso Consulting Engineers Pty Ltd v SafeWork NSW [2021] NSWCCA 288. In that case the defendant was an engineer who was asked to give advice concerning the appropriate method for the demolition of a large building. The defendant made handwritten calculations only and did not run a computer model, which was available, to check its calculations. The trial judge found that the element of causation was established.

203. The Court of Criminal Appeal allowed the appeal in relation to causation and quashed the conviction. The basis upon which the court did so is best expressed by Simpson AJA at [2] as follows:

“I agree, for the reasons given by Cavanagh J, that each appeal succeeds on the issue of causation. Grasso Consulting Engineers Pty Ltd (‘GCE’) gave relevant advice, specifically in the certificates of 11 February 2016 and 9 March 2016. Had that advice been acted upon and had the roof collapsed, GCE and Mr Grasso may have been held liable for the exposure of individuals to risk of injury, those individuals including Messrs McClutchie and Hayward. However, as the advice given by GCE was not acted upon and different instructions were given to the demolition workers, the chain of causation was severed. It was not any failure on the part of GCE or Mr Grasso that exposed the demolition workers to the risk of injury; it was the decision to demolish in accordance with the plan prepared by Mr Arnold. I agree, therefore, that grounds 4 and 5 must be upheld.”

204. Justice Walton agreed with the conclusion reached by Justice Cavanagh saying at [12]:

“I further agree with his Honour that grounds 4 and 5 of the appeal should be upheld with respect to the issue of causation, essentially upon the basis of the conclusions reached by Cavanagh J that there were too many intervening events or factors to permit the finding that the way in which Mr Grasso depicted his advice diagrammatically without additional words was a substantial and significant cause to the demolition workers being exposed to a risk of death or injury whilst they were undertaking demolition work. Further, there was an absence of evidence as to how and why a failure to undertake computer modelling constituted a substantial cause of the risk to which the workers were exposed at the time the risk materialised.”

205. Justice Cavanagh set out the principles in relation to causation at [229]-[235] as follows:

“229   In this matter the question of causation arises for the purposes of attributing blame in the criminal context. The Court is assessing causation for the purposes of assessing whether a criminal sanction should be imposed on a person.

230   As was said in Bulga, the question is whether the acts or omissions which ground the finding of non-compliance with the duty were a significant or substantial cause of the risk to which the individual was exposed.

231   It is not sufficient that the conduct be a cause. It must be a significant or substantial cause. The use of such language tends to emphasise the importance of the conduct of the duty holder to the exposure which ultimately happened, although there may still be more than one significant cause.

232   Exposure to risk at the workplace is often multi-factorial. It is not necessary to establish that the conduct was the most important or the most significant causal factor provided it was a significant or substantial cause.

233   This is not a theoretical exercise. There must be a sufficient connection between the conduct and the individual actually being exposed to a risk.

234   Further, it is necessary to establish a causal connection between the failure/conduct and the employee (person) being exposed to the risk at the time the work was being performed (in this matter whilst the demolition workers were demolishing the roof).

235   In addressing causation, it is necessary to consider the events which actually occurred. The Court is not considering the conduct from the perspective of the duty holder when that person performed the work, that is, prospectively. The Court does that when assessing breach, i.e. whether the other persons were put at risk.”

206. The conclusion reached by Justice Cavanagh was expressed at [241]-[243] as follows:

“241   The onus was on the respondent to establish causation. The respondent could not do so without establishing that the failure to undertake computer modelling exposed the demolition workers to a risk to their health and safety whilst they were undertaking their demolition work.

242   It is conceptually difficult to understand how this could be when the demolition workers were not following GCE advice and there is no evidence as what the computer modelling of the GCE sequencing advice would have shown.

243   In my view, in accepting the causal connection between the failure to undertake computer modelling and the workers being exposed to a risk to their health and safety, the trial judge erred in considering the causation question through the prism of what GCE did at the time of breach rather than how its work exposed the workers to a risk at the time they were doing the demolition work.”

207. The failure to undertake the reasonably practicable steps which should have been taken by Mr Bennett exposed the three men on site to a risk to their health and safety, while they were undertaking the work of lifting the conveyor belt. Given my findings that Mr Bennett was and should have become aware of the risk, and the simple, inexpensive and effective reasonably practicable means available to him to ensure safety, I find that the breach of duty by Mr Bennett was a significant or substantial contributing factor to the risk.

208. Had Mr Druce been forbidden from operating the crane in the first place, the risk would not even have arisen. Had a proper risk assessment been carried out and had it identified appropriate control measures, either the crane would have been positioned away from the power lines, or an appropriate warning would have been given by a spotter to Mr Druce that the boom of the crane was approaching dangerously close to the power lines.

209. I am satisfied beyond reasonable doubt that the breach of duty by Mr Bennett exposed Mr Druce, Mr Voight and Mr Whitford to a risk of death or serious injury.

Conclusion

210. I find that that the defendant Mr Nigel Bennett committed two Category 2 offences pursuant to s 32 of the Act because:

1. Mr Bennett was conducting a business or undertaking and owed Mr Druce a health and safety duty under s 19(1) of the Act and owed Mr Voight and Mr Whitford a health and safety duty under s 19(2) of the Act.

2. Mr Bennett failed to comply with those duties.

3. Those breaches of duty by Mr Bennett exposed Mr Druce, Mr Voight and Mr Whitford to a risk of death or serious injury.

211. I find the offences set out in the s 19(1) Summons and the s 19(2) Summons proved beyond a reasonable doubt.

212. I will hear the parties on sentence.

Orders

Proceedings 2020/303207 – The Section 19(1) Summons

213. The orders are:

1. The elements set out in the Summons dated 22 October 2020 have been proved beyond reasonable doubt.

2. I find the defendant Mr Nigel Bennett guilty.

3. The matter will be listed for a sentence hearing on a date convenient to the parties.

Proceedings 2020/303225 – The Section 19(2) Summons

214. The orders are:

1. The elements set out in the Summons dated 22 October 2020 have been proved beyond reasonable doubt.

2. I find the defendant Mr Nigel Bennett guilty.

3. The matter will be listed for a sentence hearing on a date convenient to the parties.

**********

Decision last updated: 12 August 2022