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Prosecution Details

Offender David Patrick Majella Keating


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Charge Charge Number Offence Date Date Convicted Regulation Section Penalty Provision Penalty Imposed Date Sentenced
1 MI15173/09 9 October 2007 2nd December 2010 3A(3)(a)(i) $45,000.00 2nd December 2010
Description of Breach(es)

The Accused, being a director of D & G Hoists & Cranes Pty Ltd (a body corporate), was guilty of an offence under the Occupational Safety and Health Act 1984 and the offence occurred with the consent and/ or was attributable to the neglect of the Accused; contrary to sections 55(1), 19(1) and 19A(2) of the Occupational Safety and Health Act 1984.

Background Details

D & G Hoists and Cranes Pty Ltd was a sales and rental company that hired out an assortment of hoists and cranes. The company also provided erection, dismantling and maintenance services for hoists and cranes. The erection of cranes could involve moving components called an L68 pack. An L68 Pack comprises 16 components weighing 375 kg each, stacked into interwoven rows of eight.

The Directors of D & G Hoists and Cranes Pty Ltd were David Patrick Majella Keating (the Accused) and Luigi Vincenzo Decesare.

The Accused and the other director of D & G Hoists and Cranes Pty Ltd were experienced in the slinging of loads, and both were qualified doggers and riggers. Both the Accused and the other director were ‘hands on' in terms of being based at the workplace and frequently in the yard.

At the time of the incident, the hierarchy within the workplace was:
• The General Manager - Mr Decesare.
• The Operations Director - The Accused.
• The Operations Manager.
• The Yard Supervisor.
• The employee who allocated jobs to workers in accordance with instructions from the Yard Supervisor.

Most of the workers employed at the workplace were qualified dogmen and/or riggers.

Both the Accused and the other director knew that:
a) There was a hazard in the workplace in regard to lifting L68 Packs;
b) Any movement of L68 Packs by a method which involved securing only the bottom two of the 16 components of the pack (described as Method 2) was incorrect, dangerous and created a risk of injury or death;
c) A method of lifting which properly encapsulated all components (Method 1) was the appropriate method to lift L68 Packs;
d) The Yard Supervisor's administrative duties did not permit him to give full attention to the yard

Method 2 had nevertheless been in use at the workplace on a regular basis for some time prior to the accident on October 2007.

Five employees who were recent employees prior to the accident, believed based in part on instructions from more senior doggers/riggers, that Method 2 was the method to be used to move L68 Packs in the workplace.

The Accused and the other director did not know that Method 2 was in use and believed or thought that the Yard Supervisor was enforcing the use of Method 1.

The Accused accepted that it was one of his responsibilities to oversee the work of employees and to see that it was done safely. He also accepted that employees sometimes ‘do things in a way that they shouldn't'.

On 9th October 2007, three riggers (including the deceased) received instructions from the Yard Supervisor to lift three L68 Packs and place them into an adjacent yard for storage using the yard tower crane.

The chains were set on the crane hook and slung by the three riggers, with the chains going down the outside of the pack and at the corners hooking around the bottom sections of the pack (Method 2). The three riggers walked around to the area where the pack was to be placed so as to guide the crane operator to lower the load. The load was approximately two metres above the ground when the L68 Pack separated causing fourteen of the sixteen components to fall out.

A rigger was struck on the head by one of the falling components and suffered a fatal head injury.

It was foreseeable that an employee might use a method other than Method 1 in slinging L68 Packs despite the doggers/riggers qualifications.

D & G Hoists and Cranes Pty Ltd had failed to have the appropriate slinging method (Method 1) in place and enforced at the time of the accident. That omission resulted in the dangerous Method 2 being used.

As to the Accused and the other director it was found that:
a) There was not a consistent induction process in place and the deceased rigger had not been the subject of an induction;
b) At the time of the accident, a written safety procedure was being formulated but had not been put in place;
c) There was no consistent system in place whereby dogmen/riggers who were new to the business were shown how to correctly sling an L68 Pack;
d) There was a breakdown of the supervision system in the workplace:
i) Insofar as the Yard Supervisor, some time prior to the accident, had reported to his superior at the time that Method 2 was in use, nothing was ultimately done about it;
ii) The Operations Manager who was directly above the Yard Supervisor in the workplace hierarchy, had no training in occupational health and safety, had no experience in dogging or rigging and would not have known whether the slinging was being done properly;
iii) Insofar as the Yard Supervisor said that an employee was his ‘eyes' in the yard, the employee had only ever seen slinging done by the use of Method 2; and
e) There was no formal safety officer employed.


Outcome Summary

The Accused was found guilty after trial. The Magistrate fined the Accused $45,000 and ordered costs of $7736.40.
This fine was upheld upon appeal to the Supreme Court of Western Australia -Court of Appeal, [2013] WASCA109.
The Accused's company was also charged and convicted. See separate prosecution summaries for the D & G Hoists and Cranes Pty Ltd and the other director, Luigi Vincenzo Decesare .

Court Magistrates Court of Western Australia - Midland
Costs $7736.40

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