Prosecution Details

The Accused was an employer which failed, so far as was practicable, to ensure that the safety or health of persons, not being its employees, was not adversely affected, wholly or in part, as a result of a hazard that arose from or was increased by the system of work that had been or was being operated by the Accused, and by that failure caused the death of Joseph James McDermott and Gerard Michael Bradley, contrary to sections 21(2)(b)(ii) and 21A(2) of the Occupational Safety and Health Act 1984.

The Accused’s Business

The Accused, trading as Shaw’s Cartage Contractor, operates a business providing state wide transportation of concrete. On the vast majority of jobs the Accused undertakes, the concrete is the form of tilt-up type concrete panels.

At the time of the offence, the Accused operated a fleet of trucks and trailers for the transportation of concrete panels.

In November 2015, the Accused was engaged in work for Delta Corporation Limited, a manufacturer of tilt up panels, to transport the panels from the manufacturer’s manufacturing yard in Herne Hill to a construction site located at 67 Bennett Street in East Perth. An 11 story residential apartment complex was being constructed there.

The Workplace

The structure consisted of tilt-up type concrete wall panels cast into suspended slabs with the addition of architecturally designed concrete wall panels incorporated into the building’s façades.

Jaxon Pty Ltd (Jaxon) was the main contractor for the construction site. In addition to Delta, Jaxon had also engaged the following relevant entities:

1)       ABC Crane Hire Pty Ltd (ABC Cranes) to install all of the precast concrete wall panels at the site;

2)       Perth Drywall Pty Ltd (Perth Drywall) to supply and install ceiling and wall lining at the site; and

3)       WARP Pty Ltd (WARP) to provide traffic management at the site.

By 25 November 2015, the main structure of the building had been constructed and the non-load bearing architecturally designed wall panels were being incorporated into the façade of the eastern elevation of the building, above Bennett Street.

The City of Perth had issued a series of obstruction permits for the footpath and the two lanes of Bennett Street, in front of the site, for use as a delivery area associated with the construction works.

WARP had in place a Traffic Management Plan, under which it was responsible for controlling pedestrians and traffic outside of the construction site. The Traffic Management Plan did not outline controls for within the construction site itself or delivery area.

During construction of the first floor of the building, ABC Cranes had erected a partially enclosed gantry above the footpath in the delivery area.

The gantry consisted of steel columns and purlins with the columns cast into two concrete strip footings located either side of the footpath and spanning the majority of the width of the site.

The gantry protected the footpath area from falling objects from the eastern elevation of the building in addition to supporting a series of transportable site offices and a small laydown area.

Jaxon had purchased portable traffic bollards and flagged bunting, from WARP, in order to demarcate the delivery area, and reserve essential car parking bays in front of the site, prior to works commencing each day.

Traffic control signs were also purchased for use on the footpath, at either end of the gantry, instructing pedestrians to use the alternate footpath, across the street.

Also situated at either end of the gantry, were the two entrances to the site being the main gate located at the southern end of the gantry and a larger sliding door entrance located at the northern end.

The delivery area, as well as the use of the site’s tower crane was controlled by a deliveries board situated inside the main entrance gate. The deliveries board was controlled by Jaxon’s Site Management staff.

The Day before the Accident

On Tuesday 24 November 2015, the panel carrying trailer was pre-loaded at the Delta yard in accordance with the loading sequence instructions as agreed between the Project Coordinator and the Logistics Manager, both of Delta, and the Site Manager of Jaxon and confirmed later recorded in the site specific Jaxon panel unloading sequence document.

The Day of the Accident

On the day of the incident, Perth Drywall Ceiling Fixer attended the daily pre-start meeting.  The precast lift was discussed at the meeting and workers were told to obey all signage and exclusion zones.  At approximately 7am on Wednesday 25 November 2015, truck driver being a full time employee of the Accused, attended the Accused’s yard on Ferguson Street in Kewdale to collect his usual truck along with a purpose built panel carrying trailer that had been preloaded the day before and delivered to the yard in Kewdale.

The load consisted of six concrete panels positioned with three panels either side of the trailer’s A-frame.

Three PB37 numbered panels were on one side of the trailer, and three PB38 numbered panels were on the other side of the trailer.

The truck driver connected his truck to the trailer and carried out his prestart check which included ensuring that load restraints chains had been properly applied in order to restrain the panels during transit.

The configuration of the chains ran from anchor points located in the panel wells on either side of the trailer, over the top of the pre-loaded panels and through the handrails of the trailer’s overhead walkway.

The truck driver retrieved a Delta Corporation Limited delivery docket that had been left in a lock box at the yard overnight. This paper work outlined the dimensions, numbers, quantity and weight of each panel.

All of the panels were the same weight, 3.19 tonnes each, size and were feature panels so they had a design on the front.

At approximately 8:30am, the truck driver arrived at the Bennett Street site and parked his truck near the corner of Goderich Street and Bennett Street as another truck was currently being unloaded. He attended the site to notify of his arrival and of his vehicle’s location.

Earlier that morning, ABC Cranes’ Leading Hand Advanced Rigger and Basic Rigger had been setting up their equipment on the 3rd floor of the eastern elevation of the building, while awaiting the first delivery of panels and for another ABC Crane Hire Basic Rigger to attend the site with the required panel lifting assembly to be connected to the site’s tower crane.

The ABC Cranes’ Leading Hand Advanced Rigger met with the Site Manager and received a panel sequence document detailing the order in which the panels were to be unloaded from the trailer.

The planned order of erection of the panels was the three PB37 numbered panels, followed by the three PB38 numbered panels.

Even though the panel unloading sequence had been predetermined, ABC Cranes’ Leading Hand Advanced Rigger was happy with it as the sequence allowed him to work across one level of the building, go up one level and then work his way across again.  He attended the delivery truck and checked that the first six panels, outlined on the panel sequence document, were on the trailer.

The ABC Cranes’ Leading Hand Advanced Rigger then instructed ABC Crane Hire Basic Rigger to direct the truck into the delivery area and be the dogman for the truck (the dogger).

The truck driver then drove the truck onto Bennett Street where the flagged bunting, demarcating the delivery area was opened to allow access.

The road camber at the delivery area became more aggressive closer to the gutter of the road.

The truck driver was asked to reposition the truck away from the gutter by a second rigger due to the road camber. After repositioning the truck a little further from the footpath, where the road camber was less severe, the truck driver asked a rigger in the delivery area which panels they wanted to unload first, as he was not intending to take all of the chains off. The rigger replied “it doesn’t matter, you can undo the lot”.

The truck driver removed the chains by un-tensioning the binders and unhooking the chains on the passenger side of the trailer, unhooking the chains on the driver’s side and then pulling the chains through the walkway and over the panels from the passenger side.

Each panel had a texta mark detailing the panel number and panel weight, which the dogger confirmed with the Leading Hand Advanced Rigger, via radio, to ensure that the correct panel is being lifted for each individual lift.

Between panel lifts, the dogger would sit on the concrete strip footings under the gantry while awaiting the lifting assembly to be lowered down following the installation of the previously lifted panel.

The dogger reported that between the second and third lift, no other persons were underneath the gantry.

At approximately 11am, upon instruction from ABC Cranes’ Leading Hand Advanced Rigger, the dogger alerted traffic management staff of the commencement of the next lift while accessing the panel trailer’s walkway and attaching the lifting assembly to the last PB37 panel to be lifted on the driver’s side of the trailer.

The WARP traffic controllers, stopped traffic along Bennett Street.

At this time, the dogger was stood on the road and next to the last PB37 panel in preparation to insert a tag line into a corking hole at the rear of the panel, once the panel had been suspended a few hundred millimetres from the trailer.   His view of the footpath is obstructed due to the remaining panels on the trailer.

The Accident

Also at approximately 11am, two Perth Drywall Ceiling Fixers along with two Labourers (Joseph McDermott and Gerard Bradley) attended the footpath area underneath the gantry, via the main entrance gate, to smoke.

There was no designated smoking area within the site so the footpath was a popular spot amongst workers for smoking.

One of the Perth Drywall Ceiling fixers noticed the truck sitting there and thought that the truck must have very recently arrived and that lifting had not started yet, as an exclusion zone had not been set up across the footpath (the week before the accident, upon leaving the site on his lunch break, he had observed a delivery of pre-cast concrete panels taking place via an A-frame trailer, and on that occasion there had been flagged bunting across the footpath at either end of the delivery area). He could not see past the large concrete panels on the trailer so had no view of the dogger.

The four workers sat on the concrete strip footings either side of the footpath. One of he Perth Drywall Ceiling fixers sat across from the other three, being the other Perth Drywall Ceiling Fixer and Joseph McDermott and Gerard Bradley who were sitting on the strip footing closest to the road side of the footpath and adjacent to the passenger side of the panel trailer.

At that time, one of the Perth Drywall Ceiling fixers looked up upon hearing a person yell out “Oy, oy, oy”, and saw two of the concrete panels, situated side by side on the trailer, starting to move towards them.  As he sprung up to get out of the way, he saw one of the panels collide with a gantry column, directly in front of himself and behind the other ceiling fixer and realised that the other falling panel, that had not had a gantry column in its path, had continued falling to the footpath with Joseph McDermott and Gerard Bradley trapped beneath it.

The Accused’s Safety Management Procedures and Training

At the time of the accident, the Accused managed their operations and occupational safety and health duties through a host of policies and driver’s guides approved by its Managing Director.  The Accused provided a copy of the Load Restraint Guide, 2nd Edition in every vehicle.

Although those materials covered the loading, placement, and restraint of loads, none of the policies or procedures covered the practice of unloading concrete panels.

The Accused had a number of drop deck type trailers.  The main reason the trailers were built was that customers were building bigger panels.  The trailers were lower to the ground and made it easier to comply with height requirements associated with transporting larger panels on edge and to ensure that the panels were able to pass under bridges often encountered on city routes.

Among its fleet, the Accused also had two specialised concrete panel carrying trailers modified from drop deck trailers. These two trailers were designed by GT Engineering, in accordance with instructions provided by the Accused's Operations Manager.

Each new driver employed by the Accused was given a practical demonstration in relation to the specialised trailers. These practical demonstrations were conducted at panel manufacturing yards for the practice of loading, only, with panels secured by chains applied over the trailers A-frame and in accordance with the Load Restraint Guide.

At the time of the accident, the Accused was unaware of:

a)       Australian Standard 3850-2003 (AS3850-2003);

b)       National Code of Practice for Precast, Tilt-up and Concrete Elements in Building Construction 2008 (Code); and

c)       the Accused’s obligations under Part 3 Division 9 of the Occupational Safety and Health Regulations 1996 in respect of tilt-up concrete and precast concrete elements.

Both the Code and AS3850-2003 recommend particular loading practices:

a)       The Code provides that “each concrete element should be individually restrained from the sides and rear to prevent movement in any direction” (at page 51).

b)       AS3850 provides that “the panels shall be securely tied or attached to the delivery vehicle by restraints that will not damage the panel” (at page 33).

In relation to unloading:

The Code provides that:

• “each concrete element should be individually secured as the unloading sequence can lead to instability of loads” (at page 51); and
• “when unloading, individual concrete elements should not be released until the crane has taken the initial load of that element” (at page 51)

AS3850-2003 states:

• “where the unloading sequence may lead to instability of load, panels shall be individually restrained and the loading configuration shall be checked to ensure that removing individual panels does not result in instability of the load and/or vehicle” (page 34); and
• “restraints shall not be removed until the crane takes the initial weight” (page 34)

Adherence to AS3850-2003 in respect of concrete panels at or adjacent to a construction site is required by Part 3 Division 9 of the Occupational Safety and Health Regulations 1996.

Individually strapped panels would have prevented the panels from falling from the specialised trailer.

At all times, including prior to the accident, all of the Accused’s truck drivers, including the truck driver on the day of the accident, carried at least 20 ratchet straps and 20 ratchets in their vehicle.

Post-Accident Changes

Following the accident, the Accused implemented a loading instruction for all A-frame types, requiring the individual restraint of concrete panels.

The instruction requires the application of ratchet straps in order to “belly strap” each panel once loaded.

The Accused reports that there has been a minor cost increase to clients for transport as it charges an hourly rate for all transport and on average it estimates that an additional 30 minutes is required to apply and remove the additional restraint on each load.  There has been no damage to panels following the implementation of individual panel restraints.

The Accused entered a guilty plea and was convicted on 4 December 2017.  On 17 May 2018 the Magistrate fined the Accused $160,000 and ordered costs of $2200.