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  4. Lindores Construction Logistics Pty Ltd v The Regulator under the Work Health and Safety Act 2011 - [2018] QIRC 61

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Lindores Construction Logistics Pty Ltd v The Regulator under the Work Health and Safety Act 2011[2018] QIRC 61

Lindores Construction Logistics Pty Ltd v The Regulator under the Work Health and Safety Act 2011[2018] QIRC 61

QUEENSLAND INDUSTRIAL RELATIONS COMMISSION

CITATION:

Lindores Construction Logistics Pty Ltd v The Regulator under the Work Health and Safety Act 2011 [2018] QIRC 061

PARTIES:

Lindores Construction Logistics Pty Ltd

(Applicant)

v

The Regulator under the Work Health and Safety Act 2011

(Respondent)

CASE NO:

WHS/2018/61

PROCEEDING:

Application for review 

DELIVERED ON:

25 May 2018

MEMBER:

HEARD AT:

O'Connor DP

On the papers

ORDER:

  1. The review decision of 14 February 2018 is confirmed. 

CATCHWORDS:

WORK HEALTH AND SAFETY LAW – APPLICATION FOR EXTERNAL REVIEW – where internal review taken to confirm decision – prohibition notice – whether notice was issued in error – reasonable belief

LEGISLATION:

CASES:

Coal Mining Safety and Health Act 1999 (Qld)

Work Health and Safety Act 2011 (Qld), s 195, s 196, s 229, 229B, 229E

Work Health and Safety Regulation 2011, s 219(5)

Dare v Pulham (1982) 148 CLR 658

De Tournouer v Chief Executive, Department of Environment & Resource Management [2011] 1 Qd R 200

R v Juraszco [1967] Qd R 128

Slivak v Lurgi (Australia) Pty Ltd (2001) 205 CLR 304

Taiapa v The Queen (2009) 240 CLR 95

APPEARANCES:

No appearances

Reasons for Decision

  1. [1]
    On 20 March 2018, Lindores Construction Logistics Pty Ltd filed an application for a review of a decision of the respondent dated 14 February 2018, pursuant to s 229B of the Work Health and Safety Act 2011 (Qld). Whilst the respondent made its "review decision" on 14 February 2018, the applicant was not notified of the reasons for that decision until 23 February 2018.
  1. [2]
    The application for review sets out the grounds upon which the applicant relies. As far as is relevant, the application for review states:

The Prohibition Notice was issued in Error.

Michael Shuttleworth, Crane Operator, did not knowingly lift a load over other people.

He was under the direction of a Dogger and was being observed by two WHS Inspectors.

…

[Anthony Lackey] wanted to inspect the sling/rigging attachment method and the Dogger was asked to bring the load down to the deck level, which he did.

As Anthony Lackey was satisfied with what he saw he indicated that the Dogger could carry on with the lift.

Matt Plater (Dogger) communicated with Michael Shuttleworth (Crane Driver) and directed the lift to proceed, and continued to place the Precast Units in the area they were required.

…

At this stage Anthony Lackey was of the opinion that the load had travelled over other workers on the deck and informed Matt Plater of this.

Michael Shuttleworth was not aware of this.

Matt Plater felt that the load had not passed directly over other people.

Michael Shuttleworth is also of the opinion that the load did not travel over other people.

At no stage was Michael Shuttleworth informed that a Prohibition Notice was going to be issued.

If loads were being lifted over people the operation should have been halted immediately until Lindores Construction Logistics or the Principal Contractor had proved that appropriate measures were in place to avoid this happening.

Nature of review

  1. [3]
    A review under s 229D of the Act is to be dealt with by the Commission "by way of rehearing, unaffected by the decision." In dealing with a similar expression in s 246 of the Coal Mining Safety and Health Act 1999, Martin J observed that the expression "by way of rehearing, unaffected by the decision" involved a certain clumsiness of expression.[1] Martin J wrote:

The language used in s 246 is inconsistent. For an "appeal by way of rehearing" to be successful it ordinarily requires that the original decision-maker be shown to have erred in law or fact. But this section says that the appeal is to be "unaffected by the chief inspector's review decision" which would seem to be inconsistent with the ordinary understanding of an appeal by way of rehearing.[2]

His Honour went on to observe:

In other words, section 246 uses a form of words which is more clearly understood as an appeal de novo. An appeal de novo involves a rehearing of the evidence by the appellate court. It is analogous to a new trial.[3]

  1. [4]
    In De Tournouer v Chief Executive, Department of Environment & Resource Management,[4] Fraser JA addressed the meaning to be given to the same expression:

Section 880(2) provides that such an appeal is "by way of rehearing, unaffected by the reviewer's decision." Section 882(1) conferred extensive powers upon the Land Court including, in s 882(1)(e), a power to set aside the review decision and substitute it with a decision that the court considered appropriate. In summary, the Land Court was empowered to exercise afresh the statutory power to grant or refuse to grant a water licence on the applicant's application.[5]

  1. [5]
    The powers of the Commission are set out in s 229E of the Act. The Commission may do any of the following:
  1. (a)
    confirm the decision; or
  2. (b)
    vary the decision; or
  3. (c)
    set aside the decision and make a decision in substitution for it; or
  4. (d)
    set aside the decision and return the issue to the decision-maker with directions the Commission considers appropriate.

 The Statutory Framework

 Work Health and Safety Act 2011

  1. [6]
    Section 195 of the Act sets out the requirements that must be met before a prohibition notice is issued. Section 195 is in the following terms:

195Power to issue prohibition notice

  1. (1)
    The section applies if an inspector reasonably believes that–
  1. (a)
    an activity is occurring at a workplace that involves or will involve a serious risk to the health or safety of a person emanating from an immediate or imminent exposure to a hazard; or
  2. (b)
    an activity may occur at a workplace that, if it occurs, will involve a serious risk to the health or safety of a person emanating from an immediate or imminent exposure to a hazard.
  1. (2)
    The inspector may give a person who has control over the activity a direction prohibiting the carrying on of the activity, or the carrying on of the activity in a stated way, until an inspector is satisfied that the matters that give or will give rise to the risk have been remedied.
  2. (3)
    The direction may be given orally, but must be confirmed by written notice (a prohibition notice) issued to the person as soon as practicable.
  1. [7]
    Section 229 of the Act outlines the ability of an "eligible person" to make an application to the Commission to undertake an external review. Section 229 is in the following terms:

229Application for external review

  1. (1)
    An eligible person may apply to the external review body for a review body for a review (an external review) of–
  1. (a)
    A reviewable decision made by the regulator; or
  2. (b)
    a decision made, or taken to have been made, on an internal review.

Work Health and Safety Regulation 2011

  1. [8]
    The prohibition notice identified a breach of s 219(5) of the Regulations. Section 219(5) is in the following terms:

219Plant that lifts or suspends loads

  1. (5)
    The person must ensure, so far as is reasonably practicable, that no loads are suspended or travel over a person unless the plant is specifically designed for that purpose.

Maximum penalty–60 penalty units.  

Background

  1. [9]
    The applicant was issued with a prohibition notice on 13 December 2017 by inspector Anthony Lackey. The contravention of s 219(5) of the Regulation was based on the following belief:

I attended level 34 of  the hotel being constructed and observed, photographed, videoed and noted that the crane operator of tower crane one had a clear and direct line of sight of the load on level 34 and operated the tower crane and the two x one tonne precast concrete elements were lifted over workers head on the level 34. I observed that the conventional two leg chain slings being used for the lift.

  1. [10]
    The crane lifted a load of precast concrete lengths and the inspector formed the view that the load traversed over the top of workers. It is contended by the respondent that this act amounts to a breach of the Act and s 219(5) of the Regulation. For clarity, the "crane operator" is the person inside the crane operation cubicle, whilst the "dogger" is the person on the ground. The primary role of a dogger is to assist the crane operator in the safe and efficient operation of the crane.[6] 
  1. [11]
    Inspector Lackey attended the workplace at 304 George Street, Brisbane on 13 December 2017. His entry in his note book records the following:

 Level 34 of Hotel I observed a load being lifted over the workers Matthew Plater

 …

Mulitiplex – dogger tower crane one I gave a verbal prohibition not lift a load over workers without effect controls whilst lifting loads over worker.

 …

Bob McColloch confirmed that the tower crane one operator is employed by Lindores. I then acknowledged that the crane operator had a clear line of site [sic] when he was lifting The load workers on level 34 of the hotel. I obtained a copy of Lindores Construction Logistics Pty Ltd For high/low lifting.

  1. [12]
    The typed copy of Inspector Murphy's hand written notes record:

Went to 34th floor of Multiplex Development to conduct site observation. On arrival tower crane was lifting lengths of concrete that were to be placed on the top of the lift shaft or precast concrete elevator shaft. Principal Inspector Lackey asked details as to the lift, the method that was being use (xmas treeing). Princ. Inspector Lackey raised concerns with the balancing of the load and the slinging technique use by the dogger on sit[sic]. Discussion resulted in the offer to show us how lift was being carried out. When lift was conducted the load travelled over head of a worker on site resulting in verbal prohibition and further discussion into methods used for moving loads via crane…

(emphasis original)

  1. [13]
    At page 10 and 11 of Inspector Lackey's hand written notes the following is recorded:

I rang Robin Waide the Lindores Construction Logistics Pty Ltd safety manager and advised that I observed one of Lindores crane operator lifting load over workers on level 34 of the [portion illegible] …multiplex job and the crane operator was in clear view of the load, I advised Robin that I will be issuing a prohibition notice to Lindores for the unsafe activity.

  1. [14]
    The Act gives an inspector the power to issue a notice on condition that the inspector reasonably believes that an activity is occurring, or may occur, in the workplace that involves or will involve a serious risk to the health or safety of a person emanating from an immediate or imminent exposure to a hazard.
  1. [15]
    In Taiapa v The Queen the High Court examined whether the Queensland Court of Appeal erred in holding that the evidence did not disclose a case fit for consideration by jury that there were reasonable grounds for applicant's belief that he was otherwise unable to escape the carrying out of the threat under the Criminal Code Act 1899 (Qld). French CJ, Heydon, Crennan, Kiefel, Bell JJ wrote:

Reasonable belief is a familiar concept in the context of criminal responsibility in the Criminal Code and at common law. Section 271(2) of the Criminal Code speaks of a belief "on reasonable grounds". As Stephen J observed in Marwey v The Queen, to ask whether a person has a reasonable belief is not different in substance from asking whether a person has reasonable grounds for belief. His Honour explained that in a case in which self-defence under s 271(2) is raised the jury are required to consider two questions. The first is an inquiry as to the state of the accused's mind. The second is an objective question that his Honour said is "exclusively concerned with the jury's view of the grounds, whether they constitute reasonable grounds".[7]

(citations omitted)

  1. [16]
    A "reasonable belief" requires the existence of facts which are sufficient to induce the belief in a reasonable person. The inspector held a belief that the activity occurring in the workplace involved a serious risk to the health or safety of a person emanating from an immediate or imminent exposure to a hazard and that the activity is contravening a provision of the Work Health and Safety Regulations 2011, in particular, s 219(5).
  1. [17]
    The question, therefore, is whether there are facts before the Commission sufficient to induce that belief in a reasonable person. 

Consideration

  1. [18]
    The Act requires that the prohibition notice must contain sufficient particulars to describe why the notice is being issued.[8]
  1. [19]
    In my view the notice contains sufficient particulars; the notice states the date and time of the incident; the grounds for the issuing of the notice; a description of the offensive activity; and the infringed statutory provisions.
  • [20]
    The function of particulars is to enable a person to know the nature of the allegation which he or she is called on to meet.[9] In Dare v Pulham, Murphy, Wilson, Brennan, Deane and Dawson JJ said:

Pleadings and particulars have a number of functions: they furnish a statement of the case sufficiently clear to allow the other party a fair opportunity to meet it ...; they define the issues for decision in the litigation and thereby enable the relevance and admissibility of evidence to be determined at the trial....[10]

  1. [21]
    The respondent's submissions of 13 April 2018 included video and audio footage of the incident; the prohibition notice; the inspection notes; and a number of other documents relating to work health and safety processes and procedures.
  1. [22]
    The applicant advised the Commission that it did not wish to submit written submissions but relies entirely on the grounds set out in the application for review.
  1. [23]
    The respondent relies on the video footage taken by Mr Lackey. However, the applicant contends that the video footage does not conclusively show that the beam passes over a workers head. I disagree.
  1. [24]
    The video footage clearly shows that the crane load travelled over the heads of the workers on site. I note the following at paragraph 19 of the respondent's submissions:

Regard should be had to video footage taken by Inspector Lackey, which shows a load being lifted by a crane over the heads of workers working on the Premises and the audio of Inspector Lackey stating "by the way, that's above that worker there", audio of the Dogger stating "heads up" and the audio of the Inspector stating "now he's slewing out over the workers…"

(footnotes omitted from original)

  1. [25]
    Having considered the video footage, I am of the view that the respondent's description of the incident is accurate. Given that the video was taken from the perspective of where the inspector was standing, it provides a reasonably accurate and conclusive view of the load being lifted by the crane over the heads of workers. I note that at one point in the video a worker looks directly upwards [at the load being lifted above him] and chooses to remove himself from the area.
  1. [26]
    The applicant submits that both the crane operator (Mr Shuttleworth) and dogger (Mr Plater) are adamant that they did not lift the load over the workers. The video footage of the lift together with the notes of both Mr Lackey and Mr Murphy contradict that contention.
  1. [27]
    In my view, the material before the Commission is sufficient for the inspector to form a reasonable belief that the activity, that being the crane lifting a load over workers, posed a serious risk to the health and safety of those workers. The inspector made detailed notes of the incident and informed the applicant that a prohibition notice was going to be issued. Whether or not the crane operator was advised that a prohibition notice was going to be issued is not determinative with respect to the validity of the notice.
  1. [28]
    The applicant contends that the crane operator "did not knowingly lift a load over other people". However, "knowingly" is not an element of s 219(5) of the Regulation.
  1. [29]
    Similarly, whether or not the crane operator was under the direction of the dogger or the applicant was under directions from the inspectors is irrelevant to a consideration of whether the provision has been breached. 
  1. [30]
    It is recognised that the operation of a crane is a high risk activity and because of this those who operate cranes are required to adhere to the statutory provisions and regulations which are designed to minimise the chance of a risk eventuating.
  1. [31]
    Section 219(5) of the Regulation provides that, so far as reasonably practicable,[11] no loads are suspended or travel over a person unless the plant is specifically designed for that purpose.
  1. [32]
    In Slivak v Lurgi (Australia) Pty Ltd, Gaudron J stated:

The words "reasonably practicable" have, somewhat surprisingly, been the subject of much judicial consideration. It is surprising because the words "reasonably practicable" are ordinary words bearing their ordinary meaning. And the question whether a measure is or is not reasonably practicable is one which requires no more than the making of a value judgment in the light of all the facts. Nevertheless, three general propositions are to be discerned from the decided cases:

  • the phrase "reasonably practicable" means something narrower than "physically possible" or "feasible"
  • what is "reasonably practicable" is to be judged on the basis of what was known at the relevant time
  • to determine what is "reasonably practicable", it is necessary to balance the likelihood of the risk occurring against the cost, time and trouble necessary to avert that risk.[12]
  1. [33]
    One of those statutory provisions requires that so far as is reasonably practicable, no loads are suspended or travel over a person.[13] The applicant has breached its duty.
  1. [34]
    Again the video footage is helpful in demonstrating that the applicant could have prevented the incident by ensuring that workers were excluded from the lift area. In that regard, I have reference to the Lindores Construction Logistics Safe Work Method Statement and, in particular, Step 5 Exclusion Zone. In reference to falling objects and injury to the public, the statement identifies under "Requirements/Control Measures" the establishment of an exclusion zone suitable for the task and consulted with onsite workers. The LCL Crane Crew are identified as the "Person Responsible" for implementing the measure.
  1. [35]
    The removal of workers from the area would have involved little cost, time or effort for the applicant. I agree with the respondent's submission that no steps were taken to ensure the load did not travel over a person until such time as Inspector Lackey informed the Dogger that the load had indeed done so. 
  1. [36]
    It is evident that there were reasonably practicable steps which could have been taken by the applicant to prevent the load from being suspended or travel over a person.
  1. [37]
    Having considered the observations of Mr Lackey and Mr Murphy recorded in their official note book together with the video footage it is possible to conclude that the load was lifted by crane over the heads of workers posing a serious risk to their safety. I am of the view that s 219 of the Regulation was breached.
  1. [38]
    For the reasons articulated above, in accordance with s 229E of the Act I confirm the review decision of 14 February 2018.

Order

  1. The review decision of 14 February 2018 is confirmed.

Footnotes

[1] [2015] ICQ 017, [11].

[2] Ibid [12].

[3] Ibid [12].

[4] [2011] 1 Qd R 200.

[5] Ibid [8].

[6] Office of Industrial Relations – Workplace Health and Safety Queensland, 'Tower Crane Code of Practice 2017' (Queensland Government 2017) 7.1.4.

[7] (2009) 240 CLR 95, 105 [29].

[8] Work Health and Safety Act 2011, s 196.

[9] R v Juraszco [1967] Qd R 128, 135.

[10] (1982) 148 CLR 658, 664.

[11] See: Work Health and Safety Act 2011, s 18.

[12] (2001) 205 CLR 304, 322, [53].

[13] Work Health and Safety Regulation 2011, s 219(5).

Close

Editorial Notes

  • Published Case Name:

    Lindores Construction Logistics Pty Ltd v The Regulator under the Work Health and Safety Act 2011

  • Shortened Case Name:

    Lindores Construction Logistics Pty Ltd v The Regulator under the Work Health and Safety Act 2011

  • MNC:

    [2018] QIRC 61

  • Court:

    QIRC

  • Judge(s):

    O'Connor DP

  • Date:

    25 May 2018

Appeal Status

Please note, appeal data is presently unavailable for this judgment. This judgment may have been the subject of an appeal.

Cases Cited

Case NameFull CitationFrequency
Dalliston v Taylor [2015] ICQ 17
1 citation
Jump To
Cite 1 - [2015] ICQ 17
Dare v Pulham (1982) 148 CLR 658
2 citations
Jump To
Cite 1 - (1982) 148 CLR 658
Cite 2 - (1982) 148 CLR 658
De Tournouer v Chief Executive, Department of Environment and Resource Management[2011] 1 Qd R 200; [2009] QCA 395
2 citations
Jump To
Cite 1 - [2011] 1 Qd R 200
Cite 2 - [2011] 1 Qd R 200
R v Juraszko [1967] Qd R 128
2 citations
Jump To
Cite 1 - [1967] Qd R 128
Cite 2 - [1967] Qd R 128
Slivack v Lurghi (Australia) Pty Ltd (2001) 205 CLR 304
2 citations
Jump To
Cite 1 - (2001) 205 CLR 304
Cite 2 - (2001) 205 CLR 304
Taiapa v The Queen (2009) 240 CLR 95
2 citations
Jump To
Cite 1 - (2009) 240 CLR 95
Cite 2 - (2009) 240 CLR 95

Cases Citing

Case NameFull CitationFrequency
Darling Downs Hospital and Health Service v The Regulator (under the Work Health and Safety Act) [2022] QIRC 4562 citations
GJT Earthmoving Pty Ltd v The Regulator under the Work Health and Safety Act 2011 [2021] QIRC 3062 citations
Icon Co (Qld) Pty Ltd v The Regulator under the Work Health and Safety Act 2011 [2022] QIRC 4301 citation
Minicon Constructions Pty Ltd v The Regulator under the Work Health and Safety Act 2011 [2022] QIRC 4291 citation
MPG Constructions Brisbane Pty Ltd v The Regulator under the Work Health and Safety Act 2011 [2023] QIRC 1862 citations
Seymour Whyte Constructions Pty Ltd v the Regulator under the Work Health and Safety Act 2011 [2024] QIRC 852 citations
Shape-Cut Pty Ltd v The Regulator under the Work Health and Safety Act 2011 [2022] QIRC 4902 citations
State of Queensland (Darling Downs Hospital and Health Service) v The Regulator under the Work Health and Safety Act 2011 [2025] QIRC 1842 citations
University of the Sunshine Coast v The Regulator under the Work Health and Safety Act 2011 [2022] QIRC 2982 citations
Watpac Construction Pty Ltd v The Regulator (under the Work Health and Safety Act) [2021] QIRC 3754 citations
1

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