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OSH Tracker

Department of Labour v Transfield Services (New Zealand) Ltd (DC, 11/09/13)

OSH Tracker

Defendant:
Transfield (New Zealand) Ltd
Judge develops own theory 
In considering a charge against a principal the judge has taken the unorthodox step of formulating his own theory about what caused a telehandler incident in which one man died and another was seriously injured. 
The incident occurred at Makara, near Wellington, in 2011 when a telehandler with two men in a cage overturned and fell down a slope. The men were employed by Electrix and the telehandler had been supplied by NZ Access Hire, a subsidiary of NZ Crane Group. Both companies had been contracted by the project’s principal, Transfield Services (NZ) Ltd. 
All three parties were charged by the then Department of Labour. Electrix and NZ Crane Group pleaded guilty and sentencing is expected shortly. Transfield defended a section 18 charge that, as principal, it had failed to take all practicable steps to ensure that employees of its contractor, Electrix, were not harmed. 
After two hearings in October and November 2012, and a lengthy delay while technical matters were considered, Judge T J Broadmore dismissed the charge against Transfield, finding that the regulator had failed to prove the company had not taken the three practicable steps it suggested were open to it (Wellington DC, 11 September 2013). 
The incident occurred during a major upgrade of the land-based elements of the Cook Strait power cable, which required the construction of a temporary 240kV bypass line in hilly terrain around Makara near the coast. The telehandler had been used without incident for three or four days at different pole sites. On 2 June 2011 the machine toppled over while the two men were suspended at a height of about 12.4m, while the boom was being “luffed” back. It landed on its side a short distance down the slope. 
The DoL alleged there were three practicable steps Transfield could have taken to prevent the incident, namely to have ensured that: 
it had relevant information about the telehandler’s capacity to operate up to certain slope limits; it ensured the telehandler was used within its slope limits; and the operator was adequately trained in the telehandler’s use. On the third point, Electrix’s four-man team at the site included a team leader, a telehandler operator, Edwards, and the two men in the cage at the end of the telehandler’s extendable boom. Edwards was an experienced operator of elevated work platforms and forkhoists. A supervisor from Transfield had trained Edwards in the use of the telehandler and had remained on site for the whole of the first day to satisfy himself that it was being correctly used. Edwards also had a copy of the machine’s manual and had read it. The judge concluded he was adequately trained. 
However the key reason for the dismissal was the DoL’s failure to prove the telehandler was operating beyond its slope design limits at the time of the incident. Instead, Judge Broadmore criticised the presentation of critical stability information in the manual supplied by the telehandler’s French manufacturer, Manitou, and the absence of adequate warning about the effect of wind on the machine’s stability. 
The manual and an associated data sheet included information about levelling the machine when it was operated on a transverse slope, which it specified could not exceed nine degrees. A spirit level in the cabin allowed the operator to establish that by use of the front stabilisers so the machine was level before operations began. 
However there was nothing in the manual to point out that, given the geometry of the two front stabilisers and the movable pivot point at the rear axle, if the centre of gravity of the loaded device fell outside this triangle it would tip over. And, particularly, if the nine degree slope limit was exceeded at the rear of the machine, the wheel on the lower side of the slope would be partially unweighted – meaning the apex of the triangle wasn’t the centre of the rear axle, but the higher wheel. Even if the slope at the rear was within the nine degree limit, the pivot point could shift along the rear axle depending on the dynamics of the load at any moment. This possibility was not canvassed in the manual. 
The 2007 edition of the manual carried only a generic warning not to operate if the wind would jeopardise the stability of the telehandler. Later editions – not available to the operator on the day – state explicitly that the device must not be used in winds above 45 km/h. 
The wind speed at the time, recorded by Meridian Energy at its Makara wind farm, was between 36 and 40 km/h. However these figures were recorded at elevations of 27m and 63m above sea level, whereas the incident occurred at an elevation of 442m where wind speeds are typically higher. 
The judge concluded the DoL had failed to establish the transverse slope exceeded nine degrees, and was more likely to have been less than that given the data from a post-incident survey. Instead, he theorised that the machine toppled because of the wind, and because at the time the boom was being “luffed” backwards, shifting the centre of gravity to the rear – a less stable position given the movable nature of the apex of the triangle. 
On the more general duties of a principal, Judge Broadmore found Transfield could reasonably have relied on the expertise of Electrix and NZ Crane Group as its specialist contractors. 
Industry:
Electricity, Gas and Water Supply
Sub-Industry:
Electricity and Gas Supply
Risk:
Fall from height
Harm:
Injury
Death
Penalty Amount:
$0.00
Reparation Amount:
$0.00
Appeared in Safeguard issue 144

Judgment Text

JUDGMENT OF JUDGE T J BROADMORE 
Judge T J Broadmore
Introduction and Summary 
[1]
This prosecution arises from a tragic accident which occurred on 2 June 2010 in the course of work associated with a major electrical supply project — the upgrade of land-based elements of the Cook Strait power cable, owned by Transpower New Zealand Limited. Work needed to be done on electrical cables and power pylons in steep and inhospitable terrain near Makara, in the Wellington area. A specialist vehicle, a telehandler, was deployed. The photograph on the next page is of a machine with the same model designation obtained from Google Images, which appears indistinguishable from the scale model given to me during the hearing. The work required two men to be lifted in a “mancage” at the end of the machine's extended boom. Some days into the work, whilst the men were at a height of about 12.4 metres, the machine toppled over. One of the men, Edwin Samiento, was fatally injured. His colleague, Antonio Maniago, suffered serious injuries from which he has made a recovery. (I outline the facts in more detail starting at [16] below.) 
[2]
The Department has taken proceedings under the Health and Safety in Employment Act 1992 against both the defendant, Transfield Services Limited, and two other companies, Electrix Limited and NZ Crane Group Limited. Their respective roles were that Transfield (which is the New Zealand subsidiary of a similarly-named Australian company) was the main contractor for the project and provided the telehandler; NZ Crane, through its subsidiary NZ Access Hire, hired the machine to Transfield; and Electrix supplied the workers carrying out the work at the pylon (Pole 12) where the accident occurred (but was not contractually responsible for the work itself). Electrix and NZ Crane have pleaded guilty to the charges laid against them. This judgment therefore concerns the position of Transfield only. 
The charge as particularised 
[3]
Transfield is charged that — 
“being a principal, it failed to take all practicable steps to ensure that employees of its contractor, Electrix Limited, were not harmed while doing any work that the contractor was engaged to do. ”
[4]
In his opening address, Mr La Hood, senior counsel for the Department, gave particulars of the practicable steps which the Department alleged Transfield failed to take, as follows: 
“(i)
To have ensured that it obtained relevant information regarding the slope operating limits before proceeding with the use of the Manitou MT1840 Rough Terrain Telescopic Handler. [This is the telehandler referred to earlier, and I will refer to it by that name, or as a machine, from now on.] 
(ii)
To have ensured that the telehandler was used within its slope operating limits. Steps available to the defendant to enable the machine to have been operated on level ground include: 
(a)
Benching the worksite at Pole 12 with an excavator; 
(b)
Levelling the worksite at Pole 12 using dunnage; 
(c)
To have used suspended ladders to complete the work at Pole 12 instead of using the telehandler. 
(iii)
The defendant failed to have ensured that the telehandler was used by an adequately trained operator. ”
Outcome 
[5]
I am dismissing the charge for reasons elaborated in detail in this judgment. 
[6]
In summary, I conclude that the Department has failed to prove beyond reasonable doubt that the telehandler was positioned on a slope exceeding its operating limits when it rolled over, or that the machine's operator, Mr Richard Edwards, an Electrix employee, was not adequately trained. In the light of the particulars relied on by the Department, those conclusions mean that the question of practicable steps does not arise. 
[7]
Nevertheless, I go on to conclude that, even if I am wrong about the positioning of the telehandler, the Department has not proved to the requisite standard that Transfield failed to take all practicable steps to inform itself about the characteristics of the telehandler and its operational limitations, to ensure that it was used within its slope operating limits, and to inform itself about Mr Edwards' qualifications and experience. I express those views having regard to Transfield's position as hirer of the machine from NZ Crane and its contract with Electrix, both as described in [2] above: I conclude that, on the evidence I heard, the Department has failed to prove that it was not reasonably practicable for Transfield to rely on the other parties in relevant respects. 
[8]
I also criticise the quality of the information contained in the manual for the telehandler as supplied by its manufacturer, in particular as to its failure to explain the set-up of the rear wheels and axle of the machine and the limitations inherent in that arrangement, and as to its failure to convey any adequate advice or warning about the effect of wind on the machine. 
The hearing 
[9]
There are factual issues between the parties as to the causes of the accident. The legal issues arise in the context that the telehandler was provided by a specialist in equipment of that kind, and was being used by experienced workers supplied by an experienced subcontractor. In that context, the issues are as to identifying the practicable steps Transfield should have taken in the circumstances to minimise the risk of harm, and as to whether Transfield took those steps. 
[10]
I heard extensive oral evidence. In addition, the parties provided three binders of evidentiary material which, with three exceptions (some site drawings made by the police, the tripartite report referred to in [100] below, and a stability study prepared by NZ Cranes), was agreed to be admissible under s 9 of the Evidence Act 2006. Further, in the course of preparing this judgment, I became concerned about the state of the evidence as to the slope operating limits of the telehandler. I took this issue up with the parties; and it was eventually resolved by a joint memorandum from them which I received on 9 May this year. This judgment has been significantly delayed as a result. 
The project and the parties involved in it 
[11]
The project was one of national importance. It involved the extensive upgrading and renewal of the North Island land-based elements of the electrical supply cable between the North and South Islands — essentially the conductor between Oteranga Bay on Wellington's South Coast and Haywards in the Western Hutt hills - and associated installations and equipment. 
[12]
The particular work being undertaken by Electrix's employees was assisting Transfield crews construct a temporary 240kv bypass line for what I infer was only a part of the distance from Oteranga Bay to Haywards, including the section near the South Coast over hilly terrain in the Makara area where the incident occurred. (The parties expected to conclude contracts for other parts of the work which would involve Electrix acting as a subcontractor proper rather than merely a supplier of labour and specified equipment.) 
On site management and personnel 
[13]
Several layers of Transfield management were involved with the project. Relevant people on site included Craig Moore, described as the “Site Works Manager, Stringing”, Peter Martin, described as “Project Supervisor”, and Duanne Trow and Graham Edwards, described as “Site Supervisors”. These latter two directly supervised Transfield workers on site. In the course of the Department's interview with Transfield's General Manager, Electrical Services (Stephen Webster), Mr Moore was identified as the person responsible for sourcing and evaluating the telehandler and arranging for NZ Access Hire personnel to visit the site. Mr Trow was the person who familiarised himself with the machine when it arrived on site, reviewed the manual, instructed Mr Richard Edwards how to operate it, and monitored him for day or more after he started work. 
[14]
On the Electrix side, the Site Supervisor was Jon Boy Edwards1
| X |Footnote: 1
There were therefore three people involved bearing the surname Edwards. Jon Boy and Richard are father and son; but I have seen nothing to suggest that their relationship had any connection with events. So far as I am aware, there is no family connection between them and Graham. 
. He was in charge of the 9 Electrix workers on site, and had worked for Electrix for at least 16 years. From a diagram of the organisational structure included in the evidence bundle, it appears that Jon Boy Edwards operated in the same level of the combined Transfield/Electrix hierarchy as Mr Trow. 
[15]
The Electrix team at Pole 12 consisted of four persons — a team leader or supervisor, Mr Damien Walker, Mr Richard Edwards, Mr Samiento, and Mr Maniago. Mr Walker had been with Electrix for about 10 years. 
The course of events leading to the accident 
[16]
I now turn to describe what happened in more detail. Essentially I summarise Richard Edwards' narrative: he was the only eyewitness called. Notably, neither Damien Walker nor Duanne Trow gave evidence. 
[17]
Richard Edwards' first acquaintance with the telehandler had been a few days before the accident: he had not previously operated a machine of that precise kind. However, he held certain certificates, and had undergone training of various kinds which, as I conclude in a later section of this judgment, meant that, subject to familiarisation with the machine, he was appropriately qualified to operate it. Richard Edwards was by no means a novice in lifting the equipment of this general kind: he gave evidence of having operated “cherry pickers” and fork hoists as a normal aspect of his job. 
[18]
Richard Edwards was introduced to the telehandler by Mr Trow. Mr Trow spent half an hour or so showing him how to operate the machine — that involved going through the controls and how to operate the stabilisers. (In a later section of this judgment I explain the machine, its manual, its controls, and how it operates, in some detail.) The fact is that once the machine was in position, it had only two controls — one to raise and lower the boom, and the other to extend or retract it. As to the stabilisers, Mr Trow showed Richard Edwards how to level the machine using the hydraulic controls and a spirit level in the cab. 
[19]
There was no evidence led either as to how Mr Trow had acquired sufficient familiarity with the telehandler to be able to instruct Richard Edwards, or as to how Electrix selected Richard Edwards for the task. Nor was any evidence led as to any interactions Mr Trow might have had with Mr Walker, either before the machine was deployed on site or whilst Mr Trow was introducing Richard Edwards to it and observing him operating it. 
[20]
At the outset, Richard Edwards had the manual for the telehandler, the July 2007 version, which he had read and continued to look at over the next few days until the accident occurred. The manual included not only the information I have set out elsewhere about levelling the machine, but also information about the weights it could lift and at what angles. (Later in this judgment I deal in detail with the manual and its several iterations.) 
[21]
Richard Edwards said that after Mr Trow's explanations he understood the controls for driving the telehandler, using the stabilisers to adjust the machine to compensate for left and right tilt, and operating the boom. After the introductory session with Mr Trow and a test lift, Mr Edwards commenced work with the machine at Pole 3, lifting Mr Samiento and Mr Maniago in the mancage so that they could work on the lines. Mr Trow remained for the whole day keeping an eye on events. During the course of that day, the machine was used at two or three pole sites, to which it had to be moved and at which it had to be set up: Mr Trow accompanied the crew throughout those operations. By the end of that time, Mr Edwards had not encountered any problems and Mr Trow had raised no issues with him. The crew carried on over the next two or three days at several different pole sites; Mr Edwards felt comfortable about what was going on and had experienced no problems; and he had had ample time to familiarise himself with the manual and other material in the cab, such as load charts specifying the load limits at different degrees of extension and height of the boom. By the time of the accident, Mr Edwards had set up and operated the machine on about 20 occasions. 
[22]
The day of the accident started with Richard Edwards and the other members of the Pole 12 crew attending successively the Transfield Tailgate meeting at the site base and their individual Toolbox meeting at Pole 12. (Those terms are soon to be explained.) 
[23]
There was no evidence about the weather other than the wind. In his written brief, Mr Edwards described the wind in these terms: 
“It wasn't overly windy but there were gusts of wind coming up the gully. ”
I discuss the other evidence as to wind speed elsewhere in this judgment. 
[24]
At the Toolbox meeting the Pole 12 crew discussed how the telehandler should be positioned. In his written brief, Mr Edwards described setting the machine up and levelling it with the stabilisers to achieve stability, checking that it was level by means of the spirit level. In cross-examination, he told Mr Olney, counsel for Transfield, that the machine was positioned in a place discussed with Mr Walker. 
[25]
Mr Edwards said that the telehandler was positioned under the wire “and in the same direction as the wire”, implying that the machine was roughly parallel with the line of the wire. The reason given for that position was so that the mancage could be moved along the wire to do the various aspects of the job. After positioning the machine, Mr Edwards tested the machine by luffing the boom — raising and lowering it. Everything seemed to be in order. Mr Samiento and Mr Maniago then entered the mancage and attached their harnesses; and Mr Edwards manoeuvred the boom up to the power line. Mr Edwards was able to communicate with the men in the mancage by hand signals. He had been trained in such signals, and had no difficulty in communicating with the men in the mancage at any stage. 
[26]
The first task of Messrs Samiento and Maniago was to put an earth on the line about 3½ metres out from Pole 12. This connected with an earth wire through the machine, which in turn connected with an “earth pin” in the ground — the process did not involve lowering the boom again. The earth wire having been secured to the line, Mr Edwards luffed the boom along to the pole, where Mr Samiento and Mr Maniago secured some “gear”. That having been done, Mr Edwards commenced to luff the boom back some two metres to where the earth wire had been fastened to the line. 
[27]
It was during that operation that the telehandler rolled over and landed on its side down the hill to the left. The consequence was that Mr Samiento lost his life and that Mr Maniago was seriously injured. 
[28]
I think it is fair to say that Mr Edwards did not then have, and had not at the time he gave evidence before me, any idea of how or why the machine rolled over. 
[29]
I draw attention to the following. The machine rolled over in luffing back from the pole towards a position at which it had previously been and at which work had been done without incident. Further, the boom had been fully raised and lowered twice to that position — once as a test lift and a second time with the men. I infer from Mr Edwards' silence on the topic that he had not detected any sign of instability during those lifts or work at the position; and presumably neither had the men aloft, or they would have signalled to him. 
More about the statutory framework 
[30]
Before proceeding, I pause to identify the relevant provisions of the Health and Safety in Employment Act. 
[31]
Section 6 provides as follows: 
“6
Employers to ensure safety of employees 
Every employer shall take all practicable steps to ensure the safety of employees while at work; and in particular shall take all practicable steps to— 
(a)
Provide and maintain for employees a safe working environment; and 
(b)
Provide and maintain for employees while they are at work facilities for their safety and health; and 
(c)
Ensure that plant used by any employee at work is so arranged, designed, made, and maintained that it is safe for the employee to use; and 
(d)
Ensure that while at work employees are not exposed to hazards arising out of the arrangement, disposal, manipulation, organisation, processing, storage, transport, working, or use of things— 
In their place of work; or 
(e)
Near their place of work and under the employer's control; and 
(f)
Develop procedures for dealing with emergencies that may arise while employees are at work. ”
[32]
The words “all practicable steps” are further defined in s 2A, in the following terms: 
“2A
All practicable steps 
(1)
In this Act, all practicable steps, in relation to achieving any result in any circumstances, means all steps to achieve the result that it is reasonably practicable to take in the circumstances, having regard to— 
(a)
the nature and severity of the harm that may be suffered if the result is not achieved; and 
(b)
the current state of knowledge about the likelihood that harm of that nature and severity will be suffered if the result is not achieved; and 
(c)
the current state of knowledge about harm of that nature; and 
(d)
the current state of knowledge about the means available to achieve the result, and about the likely efficacy of each of those means; and 
(e)
the availability and cost of each of those means. 
(2)
To avoid doubt, a person required by this Act to take all practicable steps is required to take those steps only in respect of circumstances that the person knows or ought reasonably to know about. ”
[33]
As I have explained, Transfield was not Mr Samiento's employer. Nevertheless, as Mr Olney accepted, the duties imposed under s 6 applied to it. That follows from s 2(2), which provides: 
“For the avoidance of doubt, it is hereby declared that— 
(a)
A person may at the one time be 2 or more of any of the following: a contractor, an employer, a person who controls a place of work, a principal, a self-employed person, and a subcontractor; and this Act may impose duties on or in respect of the person accordingly; and 
(b)
This Act may at the one time impose the same duty on 2 or more persons, whether in the same capacity or different capacities; and 
(c)
A duty imposed by this Act on any person is not diminished or affected by the fact that it is also imposed on 1 or more other persons, whether in the same capacity or in different capacities. ”
Put another way, at any one time and in relation to any one person, more than one person may have a duty under the Act. In this case, the Department asserts, uncontroversially, that not only Transfield, but also Electrix and NZ Crane, had duties in respect of Mr Samiento and Mr Maniago. 
[34]
As noted in [3], Transfield is charged as a “principal”. That is a term defined in s 2 in the following terms: 
“Principal means a person who or that engages any person (otherwise than as an employee) to do any work for gain or reward. ”
Again, there is no issue about that in this case. 
[35]
Finally, as pointed out by Mr La Hood, the Act establishes a hierarchy of controls for ensuring workplace safety in respect of identified hazards. The primary duty is to eliminate hazards, or if they cannot be eliminated then to isolate them, of they cannot be either eliminated or isolated, then to minimise them. In this case, Mr La Hood accepted that the hazard could not be eliminated or isolated, so that the duty was to minimise it. 
Safety aspects of the contracts 
Transpower / Transfield 
[36]
As might be expected, the entire contract between Transpower and Transfield for the upgrade project is extensive and detailed, and the parties did not give me the whole of it. Its relevance for present purposes is its treatment of safety-related issues. 
[37]
The contract included a detailed “safety plan” extending over nearly 40 pages. It appears to be a compilation of material from both parties, but prepared by Transfield. The Plan also refers to several appendices which were not given to me, including one entitled “Subcontractor Safety Basics” and another one incorporating a document described as a “Tailgate Sheet” — a reference to the procedures to be observed at the on-site meetings held at the start of each day's work. 
[38]
I do not need to consider the precise contractual status and effect of the Plan, because — as I shall discuss in more detail later — its significance is not contractual. Rather, it seems to me that I may draw inferences from it as to the parties' understanding of and intentions regarding the “practicable steps” open to them in eliminating, isolating and minimising hazards to employees and others. 
[39]
The key objectives of Transpower's Safety and Health Policy are set out in s 1.3 of the Plan. There is an express statement that the Plan seeks to align with these objectives. They include the following: 
Ensuring compliance with legislation, regulations, codes of practice, industry standards and safe operating procedures relevant to the business. 
Ensuring staff are trained, adequately informed and instructed on the hazards associated with their work. 
Providing employees and contractors a safe and healthy work environment through the elimination, isolation or minimisation of hazards and ensuring that they have the ability to effectively respond to emergencies. 
Requiring its contractors to demonstrate the same level of commitment as Transpower to excellence and safety and health. 
[40]
Section 3 of the Plan deals with staff selection and competency. It has the particular effect that Transfield and subcontracted employees are not to be permitted to perform work unless they hold appropriate qualifications, licences and competencies. 
[41]
Section 4 of the Plan contains detailed provisions dealing with the safety aspects of working with subcontractors and suppliers. Among other things, subcontractors' health, safety and environment management systems are required to be assessed and approved by Transfield; and, upon commencing work on the site, subcontractors are required to carry out the Transfield “Job Start” induction programme. 
[42]
There are detailed provisions in s 7 of the Plan for the identification and management of risks including those pertaining to specific sites and tasks. This section includes reference to the completion of written job safety analyses and tailgate sessions. The issue of whether or not this documentation was completed in respect of the telehandler and the work being undertaken when the incident occurred was not investigated by either party during the hearing. 
Transfield / Electrix 
[43]
The contract between Transfield and Electrix was for the supply of labour and plant, rather than for the performance by Electrix of a specified part of the overall works. The arrangement was documented by way of a Transfield purchase order with attached general terms and conditions of purchase, but it was also subject to special conditions specified in an email trail agreed to form part of the contract. These special conditions relevantly provided that the labour and plant resources were to be under the direction and control of Transfield, that project management was to be provided by Transfield, and that any materials or external plant hire requirements were to be to Transfield's account. 
[44]
Notwithstanding that, the standard printed terms imposed detailed requirements on Electrix designed to ensure compliance with the requirements of the Health and Safety in Employment Act. Those terms also included also a general requirement as to compliance with all laws, statutes and regulations which might be applicable. Other terms (contained in clause 11) provided, in particular, for the following: 
1.
The preparation and supply to Transfield of a Hazard Identification Schedule and Safety Plan. 
2.
A requirement to ensure that the employees to be supplied were appropriately trained and qualified, with suitable experience, in the proper use of plant. 
I will not examine whether, if at all, the special conditions to which I have referred are inconsistent with the general terms. 
Transfield / NZ Crane Group 
[45]
As noted earlier in discussing Transfield's arrangements with Electrix, it was up to Transfield to arrange for the hire of the telehandler. Transfield arranged that through NZ Access Hire, a trading division of NZ Crane. The arrangement was recorded on a standard form hire agreement containing the following features: 
1.
Transfield agreed for the purposes of the Health and Safety in Employment Act that the machine would be used only by authorised and competent officers within its rated capacity. 
2.
There was reference (clause 9) to compliance by the hirer with NZ Crane's handbook setting out health and safety responsibilities. Although no handbook as such was produced, NZ Crane provided a 5 page handout entitled “Guidelines for the Safe Operation of Telescoping Boom Materials Handler”
3.
Clause 10.1.4 required the hirer to ensure that the ground at the site was adequate to support the machine and that the ground giving access to the site would be stable and of a gradient no steeper than 1:10. (Beside this provision someone has handwritten “5.7 degrees” which I assume is the decimal equivalent of a gradient of 1:10). Those words, in their natural meaning, do not seem to cover the site itself; but that is not surprising since the machine was described as having a frame levelling capacity of ± 9°. 
4.
Clause 10.1.5 commenced by stating that — 
“The crane operator shall be under the direction and control of NZ Crane Group. ”
I heard no evidence of any direction or control provided by NZ Crane Group in respect of the operation of the machine. 
5.
Clause 10.1.5 went on to provide that the hirer was not to allow the crane operator to do anything contrary to any statutory or regulatory measure, or Code of Practice or recognised convention. There were other detailed provisions in this clause governing the operation of the machine, but none of them appear directly relevant to this incident. 
[46]
The guidelines to which I referred when discussing Clause 9 contain further detailed instructions and requirements for the use of telehandlers. In discussing the responsibilities of employers, managers and private users, the guidelines specify as follows: 
“You must ensure that: 
[You] familiarise yourself with the provision and operation of the controls and instruments before operating the machine. 

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