By
Gaby Grammeno
Contributor
No proper exclusion zone
The incident occurred during the construction of a five-storey residential development consisting of 135 units and two basement floors in three buildings at a suburb in south west Sydney. There was a laneway in an area between the buildings.
The principal contractor began work in July 2020. A 14-tonne luffing crane was installed and commissioned on the site and a crane management company was engaged to provide cranage services, including the provision of a crane driver and a dogger with the appropriate high-risk work licences.
In August, bundles of 6m steel reinforcement bars were delivered to the site, and on 24 August the supervisor engaged by the principal contractor told the crane driver and the dogger to move the reo bars from the ground to an elevated deck about 2m off the ground. The load weighed between 2 and 4 tonnes.
At the time, a concrete boom placement truck was parked in the laneway and a formworker had been told to continue with the installation of a wall system in the laneway. The dogger did not see anyone in the laneway.
Too late, the dogger noticed the formworker and yelled for him to get out of the way. The load struck the formworker on his right side, lifting him off the ground and pinning him to a formwork deck until he was pulled down by other workers.
The formworker sustained multiple fractured ribs, a torn rotator cuff that required surgical repair, an injury to his lower back and internal injuries. He was in hospital for five days, and nine months later was still receiving medical treatment and unfit to return to work in any capacity. Almost three and a half years after the accident, he had some limited capacity for work of three hours a day, two days a week.
SafeWork NSW prosecuted the dogger, charging him with failure to comply with his health and safety duty by exposing the formworker to a risk of death or serious injury, in breach of s 32 of the Work Health and Safety Act 2011 (NSW).
The case was heard in the District Court of New South Wales.
In court
When a crane is used to lift or suspend loads, an exclusion zone should be established around the crane and adjoining areas to stop people entering the area and risk being injured by the crane, its load, or falling objects.
Judge Andrew Scotting heard that the sub-contractor agreement between the principal contractor for the job and the company providing cranage services required the cranage company to ensure the establishment and maintenance of an exclusion zone.
However, the Safe Work Method Statement (SWMS) submitted by the cranage company to the principal contractor did not refer to the use of exclusion zones, and the supervisor engaged by the principal contractor did not require an exclusion zone to be established on the day of the incident, or before that.
The dogger had signed the crane supplier’s SWMS that provided for the establishment of an exclusion zone by using barriers and signage. He had not used barriers and signage, however, relying instead on verbally instructing workers to keep clear.
The dogger was a 49-yo sole trader licensed as both a tower crane operator and a dogger. He was regarded by his employer as a highly competent, reliable and hardworking individual. He was in financial difficulty, living from pay to pay and struggling with his debts.
At the time of the incident, there was no adequate exclusion zone in place. Workers, including the formworker, were active in the area where the exclusion zone should have been. Following the incident, the cranage company complied with an Improvement Notice by updating its SWMS to provide for exclusion zones delineated by flags and barricades.
The dogger had failed to establish and maintain an exclusion zone using impassable barricades, signage and high visibility tape to prevent people from entering the area where the lift was being undertaken. To take such relatively simple measures would have caused him minimal inconvenience.
He pleaded guilty and was convicted of the offence.
The mitigating factors to be taken into account in sentencing were that he had not previously been involved in a safety breach, had expressed remorse and took full responsibility for the incident, acknowledging that it was a direct result of his failure to comply with the SWMS he’d signed. He said he’d learnt from this unfortunate experience by ceasing to work as a dogman and undertaking further training, and had become an advocate for site safety.
Judge Scotting assessed him as unlikely to re-offend, and observed that there had been multiple failures on the part of other, more culpable, duty holders. (The principal contractor had already been convicted and fined $225,000.)
The imposition of a large fine on the offender would be disproportionate to his comparative culpability, and his limited capacity to pay a fine was also relevant. The appropriate fine was reduced by 20% to reflect the discount for the guilty plea.
On 24 April 2024, Judge Scotting handed down his sentence. The maximum penalty for the offence is a fine of 1,730 penalty units ($176,460.00), but after considering the mitigating factors, the Judge imposed a fee of $6,000 plus the prosecutor’s costs, agreed to be $10,000.
What it means for employers
Safe Work Method Statements must be complied with by all duty holders. Failure to do so can result in serious injuries to workers.
