The Facts

Panel company hired to supply and install panels for townhouse walls

AC was the principal contractor for the construction of fifty-eight townhouses on the outskirts of Sydney.

The townhouses were to be clustered across nine buildings, referred to as "stacks".

AC engaged a panel company to supply and install panels that would form the walls of the stacks.

Each panel consisted of two large fibro cement sheets, separated from each other by short steel spacers.

The panels were to be placed vertically, resting on their edges, and then the spaces between the pairs of fibro cement sheets were to be filled by pouring concrete into the voids.

The panels were supplied in bundles, each consisting of several panels laid on top of each other.

Each bundle was secured by being wrapped in heavy plastic sheets.

Panels required to be lifted using pallet hook attached to crane

Because each townhouse stack was multi-level, it was necessary to use a crane to lift the panels and position them.

The principal contractor hired a cranage company for this purpose.

The cranage company provided a mobile crane, a crane driver, and a dogman (the person whose role it is to provide directions to the crane driver during the lift).

To lift each bundle of panels, the crane had to be equipped with a pallet hook, a device effectively consisting of a pair of forklift tines which could be attached to the crane's hoisting cable.

This pallet hook was provided by the panel company.

To lift a bundle safely, the tines of the pallet hook had to be inserted into the frame of the bottom panel of the bundle.

Pallet hook not secured properly and panel falls from crane

On the morning of 15 December 2017, the crane was being used to lift bundles of panels up to the first level of stack two.

A labourer, engaged by the panel company from a labour hire firm, was doing the job of inserting the tines of the pallet hook into the frame of the bottom panel of each bundle.

The dogman had positioned himself on the first level of stack two to land the loads.

On the ground in the vicinity of the crane there were also two workers who worked for the company engaged by the principal contractor to provide scaffolding.

Unfortunately for those workers, the bottom panel from a bundle being lifted by the crane fell from a height, striking them both. One was not badly hurt, but the other sustained serious injuries.

It became apparent that the panel company's labourer had inserted the tines of the pallet hook into the panel which was second from the bottom, instead of the bottom panel. This left the bottom panel, which weighed some 76 kilograms, supported only by plastic wrapping. This panel slipped out of the plastic and fell.

SafeWork NSW prosecutes panel company for breach of workplace health and safety duty

SafeWork NSW prosecuted the panel company, alleging that the company was in breach of its duty owed under section 19 (2) of the NSW Work Health and Safety Act 2011 ("the Act"), which states:

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.

It was common ground that the employees of the scaffolding company were "other persons" within the meaning of this subsection.

The central issue was whether the cranage work was "work carried out as part of the conduct of the [panel company's] business or undertaking".

CASE A

The case for SafeWork NSW

CASE B

The case for the panel company
  • The panel company's obligation to install the panels extended to directing bundles of panels being lifted by crane to certain areas of the site. The company even supplied the pallet hook, and at all material times had control of the panels and the pallet hook.
  • It was reasonable for the labourer to assume that attaching the pallet hook to the bundles was in the ambit of the work he was hired to do. Attaching the pallet hook to the bundles was essential to ensure that the work the panel company was contracted to do would not grind to a halt.
  • Also, at the time of the incident, the panel company's supervisor was on site. He knew, or should have known, that the panel company's labourer was attaching the pallet hook to the bundles. If this was not appropriate, he would have stopped him.
  • After the incident, the site supervisor even completed an injury report, which appears to accept that the cranage had been part of the panel company's business on site.
  • Since the cranage work performed by the labourer was "work carried out as part of the conduct of the [panel company's] business or undertaking," the panel company is guilty of breaching its workplace health and safety duty.
  • The terms of our contract with the principal contractor clearly state that we were only engaged to install the panels.
  • The incident that occurred was the result of the operation of the crane. We were not contractually obliged to operate the crane.
  • The cranage company had a dogman, who was on the first floor, where he needed to be to land the bundles safely. If the cranage company failed to bring a worker to attach the bundles on the ground to the pallet hook, then that is the cranage company's fault, not ours.
  • The labourer's hire contract clearly states that his duties were general labouring duties only, such as keeping the site clear, lifting and carrying as required. Although he says that he knew how to attach a load to a pallet hook, he had no formal training in doing this. We never instructed him to perform that role.
  • The cranage work that the labourer performed was therefore not "work carried out as part of the conduct of... [our] business or undertaking". Therefore, we are not in breach of our workplace health and safety duty.

So, which case won?

Cast your judgment below to find out

Geoff Baldwin
Government investigations and prosecutions
Stacks Champion

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