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Safeguard OSH Solutions - Thomson Reuters

Safeguard OSH Solutions - Thomson Reuters



OSH Tracker

Department of Labour v Carter (DC, 05/08/04)

OSH Tracker

Defendant:
Jeffrey Claude Carter
The operator of a crane which dropped a load of steel, killing two workers, has been cleared of charges after the judge found he had not received proper training for the job, and there were no clear safety guidelines. Dismissing two charges under s.19(b) of the HSE Act against Jeffrey Claude Carter, Judge Swaran Singh said he was satisfied that, in the circumstances, Carter had taken all practicable steps to avoid harming others (Manukau DC, 5 August). At the time of the accident Carter, an employee of a contractor, was operating the gantry crane at Fletcher Steel’s Pacific Steel premises in Mangere. A bundle of steel peeled off the electromagnetic pads of the crane, killing two men on the weighbridge below. The judge said he had reasonable doubt about the safe working load for the crane. The safe working load sign on the lifting beam was not readily visible to the operator and signs elsewhere gave ambiguous and contradictory messages about lifting limits. Very prescriptive operating procedures had been developed for the crane, but there was no evidence that Carter and his fellow contractors had been trained to use them. Other factors that had a bearing on the accident included a badly cracked weld in the crane rails that would have jolted the load, and a failure to ensure that people entering the dispatch area beneath the crane signed in. Carter did not realise there were people on the weighbridge until the load began to fall, the judge said. Further charges in relation to the incident, against Fletcher Steel Ltd, trading as Pacific Steel, and the employer of the two dead men, Steelcraft Engineering Ltd, are still to be heard. 
Industry:
Construction
Sub-Industry:
Construction Trade Services
Risk:
Struck by falling object
Harm:
Death
Penalty Amount:
$0.00
Reparation Amount:
$0.00
Appeared in Safeguard issue 87

Judgment Text

RESERVED JUDGMENT OF JUDGE A S SINGH [REASONS FOR ORAL JUDGMENT OF 19 JULY 2004] 
Judge A S Singh
[1]
Jeffrey Claude Carter, you appear before me today in respect of two charges under s 19(b) and s 50(1)(a) of the Health and Safety in Employment Act 1992. The charges, CRN 3092016497/8, are in exactly the same terms respecting two victims. 
[2]
In respect of each charge it is alleged that you, being an employee, failed to take all practical steps to ensure that your actions while at work in respect of the operation of a crane did not cause harm to another person. On Tuesday 2 July 2002, in an accident, two people died when a random bundle of steel peeled off from the electro magnetic pads of an overhead gantry crane. 
[3]
The hearing commenced on 8 March 2004 and concluded on 11 March 2004. Submissions from Informant's and Defence counsel were received on 30 March and 19 April 2004, respectively. On 19 July 2004, I gave an oral decision dismissing both charges. I now circulate the full text of that decision. 
[4]
At the time of the accident you were employed by Ultimate Transport Solutions (“UTS”). UTS was contracted to Fletcher Steel Ltd (“FSL”), trading as Pacific Steel (“PS”), based in James Fletcher Drive, Mangere. 
[5]
Functions of UTS included managing the despatch of steel. In particular, UTS provided operators for the gantry crane and despatchers in the T-Bay area of PS. 
[6]
The crane involved in the accident on 2nd July 2002 was owned by FSL and operated by you at the time of the accident. 
[7]
Two employees of Steelcraft Engineering Ltd, RR Wilson and GL George, were carrying out maintenance work in the weighbridge area of PS when a random bundle of steel peeled off the magnetic pad of the crane and struck them. Both died from the resulting injuries. 
[8]
In coming to my decision, I have carefully considered all the evidence, both for the Informant and the Defence, including all the exhibits. I have been assisted by very thorough and detailed submissions from both counsel. 
[9]
I have considered the relevant provisions of the Health and Safety in Employment Act 1992 (“Act”). In particular, I have considered sections 2, 19(b), 50 and 53 of the Act. I have also considered the relevant case law. 
[10]
This is a case of a strict liability offence. For the defence to succeed the Court must be satisfied, on the balance of probabilities, that you took all practical steps to ensure that no action or inaction of yours while at work caused harm to any other person: Civil Aviation Dept v McKenzie [1983] NZLR 78Has partially negative history or cases citing, but has not been reversed or overruled[Yellow] 
[11]
To prove absence of fault on the balance of probabilities, it is not enough for the defendant to establish an absence of belief as to fault. As to “all practicable steps”, Judge Ryan in Dept of Labour v WJ Pile, Oamaru DC, 25 August 1995, observed that: 
“that refers to a more objective body of knowledge rather than an individual's subjective knowledge … otherwise Parliament's intention of imposing obligations may be defeated by the person who has been instrumental in bringing about some harm saying ‘I knew no better’ … There is an obligation to become informed, to appreciate the consequences …  ”
[12]
In Buchanan's Foundry Ltd v Dept of Labour [1996] NZLR 115, Hansen J emphasised that in determining whether or not the appellant had taken all practicable steps, the matter must not be judged with the benefit of hindsight. It must be judged on the basis of what had been known at the relevant time: it “is not for snaring the diligent and socially responsible”
[13]
The Informant does not need to prove a causative link between failure to take all practicable steps and any harm suffered by the deceased. In Dept of Labour v Kay, AP 326/98, 8 December 1996, Cartwright J stated that: 
“The purpose of the legislation is not only to prevent actual harm or injury, but to ensure that people at work or affected by the work of other people will be protected from harm. The same responsibility rests on employees as well as on others responsible under the legislation not only to ensure that no harm actually occurs, but to maintain safe practices which will protect themselves or others from harm. ”
[14]
Under s 2(2), same duty may be imposed on 2 or more persons. The fact that others may have failed to comply with their obligations under the Act does not diminish or affect one's liability, if indeed the Informant has proved the essential ingredients of the offence it was required to prove: see Central Cranes Ltd v Department of Labour [1997] 3 NZLR 694Has Cases Citing which are not known to be negative[Green] 
[15]
I have also considered other cases which emphasise that the obligations of an employer to provide adequate training, supervision and safe working environment: Department of Labour v Alexandra Holdings Ltd [1994] DCR 50Has Cases Citing which are not known to be negative[Green]  at pp 51-52; Utumpu, Heath & Safety Inspector v W Crighton & Sons Ltd 20/1/00, Judge Atkins, Palmerston North DC; Department of Labour v de Spa & Co Ltd [1994] ERNZ 339; McKee Fehl Constructors Ltd v Department of Labour 25/9/97, Ellis J, HC Wgton, AP 180/97
[16]
Mazengarb's Employment Law at pp M173-175 sets out a passage from Department of Labour v Wastecare Ltd, DC Palmerston North, 23/10/96 
“But the ‘current state of knowledge’ … within the definition of ‘all practicable steps’ … does not refer to the state of knowledge of the individual drivers, employees or operators, but to those persons responsible for passing information oh to the drivers, employees or operators …  ”
[17]
In a nutshell, the Informant's case is on the basis that the signage at your workplace in the T bay area read “Safe working load under 9 metres 3 x 2000 kg over 9 metres 2 x 2000 kg.” By carrying 3 prime and 1 random bundle you failed to take all practicable steps to ensure that no action of yours caused harm to others. 
[18]
The defence position is that you took all practical steps to ensure that no action or inaction of yours while at work caused harm to others. The emphasis was on 6,000 kg and not on the number of bundles. That a practice had developed at the workplace over a period of time and confirmed by yourself and other witnesses that more than 3 bundles were carried from time to time. It was based on a judgment call, provided that the bundles came within the electro-magnetic pads, and the buzzer, indicating that the load was unsafe, was not activated.The Defence also raised a raft of other matters concerning failures in the systems and management at your workplace, including lack of training in the use of crane with electro-magnetic pads. 
[19]
Having considered all the evidence, I am left with a reasonable doubt on the issue of what the SWL was, and whether the load that you were carrying exceeded any such safe working load (“SWL”). Whilst there is a sign saying 3 x 2000 for under 9 meter bundles and for over 9 metres 2 x 2000 kg, the evidence shows that in practice some crane drivers had been carrying up to 4 bundles provided they, having exercised their judgment call, felt it safe to carry. 4 bundles, and the buzzer was not activated. I note that the load you were carrying at the time was lifted approximately 10 to 15 metres above the ground, and had travelled approximately 80 metres before the random bundle peeled off at about the point where there was a crack in the weld of the rail. 
[20]
The buzzer was meant to alert the operator if the load was unsafe. It was supposed to be set at 6 tonnes (p.88). However, on initial testing after the accident it picked up 7.6 tonnes (p.59). On further testing, the buzzer was re-set at 4.2 tonnes. Subsequently, it was re-set at 5.77 tonnes (p.91). Apparently, at the time of the accident, the buzzer did not go off and cut the power to the magnets thereby stopping the load from being lifted. 
[21]
In this case, there were no safe operating procedures, (“SOPs”). There was lack of adequate training, particularly in respect of the use of crane with electro magnetic pads. There was a crack in the welding of rails. According to N Trilokekar of SGS, Crane Inspector, it was a very extreme case of weld failure causing quite a bad bump. It was quite serious and of recent origin. See Exhibit 3 and evidence pp.60-61. 
[22]
According to Kone Cranes Report of 4 July 2002, Exhibit 8, SWL sign on lifting beam “is not readily visible to the driver … ”; on inspection the MOT certificate had expired in 1994; it was not known when the crane was last inspected; a current inspection certificate was not displayed to the operator; a second display mounted on the cab unit did not display the load correctly; during the test no indication to the driver that power to magnets had been cut existed. Further, Konecrane Report of 4 July 2002 at para 1.110 states that “SWL on bridge of crane is 1200 kg; SWL on sign fixed to cab wall is 4T. It is unclear what this 4T refers to, it appears to indicate 4T per magnet i.e. 4 x 3 — 1,200 kg; but is very ambiguous and should be written clearly.” 
[23]
There was a register which people had to sign before they came into the T-Bay area. According to the despatcher, Mr Beckett, it had not been signed by anyone visiting the site. In particular, it had not been signed by the two victims. You were not aware of the presence of the two persons working in and around the weighbridge area until after the random bundle had started to peel off. 
[24]
Insofar as SOPs are concerned, the evidence of MJ Gould at p.72 is that he had on his file very prescriptive SOPs on how you should rig each load. However, he was not “going to say that that was understood by UTS”. The reason for that “is because the people who work[ed] for me previously operated the T-Bay crane and I'm more conversant about their knowledge base than I was about what the UTS operators knowledge was.” 
[25]
Had there been proper and safe operating procedures in place and proper training, any failure on your part to take all practical steps would have been in breach of s 19(b) and therefore an offence under s 50. 
[26]
The fact that there were varying accounts of which bundles were being carried at the time of the accident and what their respective weights were, also leaves the Court with a reasonable doubt. 
[27]
At p.96 of the Notes of Evidence, on Fenwick's (Safety Manager) account, the total of three prime bundles and one random bundle weighed 6.985 tonnes. He was able to identify the bundles as having been “freshly milled … that were relatively hot to touch to the point that they could actually burn you.” Moreover, he concluded that the weight tag he found at the scene belonged to the random bundle which had peeled off. 
[28]
Photograph in Exhibit 9, Figure 4, page 7, shows a reconstruction of the load. Parts of the outer bundles are outside the magnetic pad. Fenwick, Safety Manager, conceded that they were not the bundles that were being carried by you on the day (pp.103-104). There was evidence that some bundles that came from the mill were of varying weights, albeit the number of lighter bundles were somewhat limited. There is no evidence before the Court as to how the four bundles involved actually fitted under the electro-magnetic pads. 
[29]
Having regard to all the evidence, I am not satisfied that the informant has proved its case beyond reasonable doubt. In particular, there were no clear guidelines or SOPs on SWL. In the absence of SOPs, safe working environment, and lack of training, I am not satisfied beyond reasonable doubt as to what the SWL was, and that you exceeded any such SWL 
[30]
Further, I am satisfied on the balance of probabilities that, in the circumstances, you took all practical steps as required under the Act. 
[31]
Accordingly both charges are dismissed. 

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