04 April 2022
In the final chapter of the long-running prosecutions arising out of the tragic death of Herman Holtz at the University of Canberra Hospital site in 2016, a crane contractor has been fined $300,000 in the ACT Industrial Court.
In 2016, Multiplex Constructions Pty Ltd (Multiplex) was the principal contractor for the University of Canberra Hospital construction. It had contracted with RAR Cranes for the provision of mobile crane services at the site.
RAR Cranes provided a crane that could operate in a ‘superlift mode’, which increased the crane’s lifting capacity from 10 tonnes to as much as 25 tonnes, depending on the crane’s configurations at the relevant time. In this mode, the operator had to install a second counterweight at the rear of the crane.
RAR Cranes did not provide the operator on the day of the incident with information, training or instruction about how to safely operate the crane, how to use the superlift mode, or how to fit the associated counterweight. The operator in question did not correctly fit the counterweight on the day of the incident.
At the construction site, there was a generator with a marked gross weight of 10.3 tonnes, which was more than the standard load capacity of the crane. On 4 August 2016, Multiplex decided that the generator should be moved to its new position. RAR Cranes proposed using a 200-tonne slewing crane or a tilt tray truck. Multiplex rejected the proposal, as the cost and logistics of using that equipment were not something that Multiplex was "eager to be part of".
The RAR Cranes crane operator proceeded to use the crane, despite the warning alarms indicating that the crane was overloaded. The operator thought, correctly, that the warnings were due to the counterweight not being registered by the crane. However, at certain points during the route travelled by the crane, it was in fact overloaded due to the positioning and angle of the load. At one point, the crane toppled over, striking and killing a worker in the area, Herman Holtz.
ACT WorkSafe commenced prosecutions against Multiplex and RAR Cranes as well as RAR Cranes’ Managing Director, crane operator, dogman, Multiplex’s CEO, site manager, site supervisor and site safety officer.
Pleas were eventually entered by the crane operator, Multiplex and RAR Cranes. The crane operator was sentenced to 12 months in prison, wholly suspended on a good behaviour bond. Multiplex was fined $150,000 and RAR Cranes was fined $300,000.
Regarding the difference in fines between Multiplex and RAR Cranes, the court found RAR Cranes more culpable.
In particular, the court stated that:
"Multiplex applied, or at least RAR perceived on reasonable grounds, some pressure to perform the task with a particular crane in a particular timeframe. Multiplex failed to comply with RAR’s request for a site induction and failed to require completion of the SSRA before work commenced. However, RAR, as the specialist subcontractor, was best placed to assess the viability of conducting the work required safely, and to provide properly trained personnel to do so, or indeed to refuse to do so if the conditions were not appropriate. Where the subcontractor has specialist skill and greater control of the work and worker, it will often, although not always, be more culpable than a principal with a broader supervisory role for the project."
This statement indicates a position that is increasingly being adopted by courts regarding the right for a principal contractor or other person conducting a business or undertaking (PCBU) to rely on the expertise of a contractor. It also demonstrates the importance of any PCBU stopping work if it considers it to be unsafe or it knows a safer way to perform the work.
Author: Michael Selinger
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