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Here We Go Again! – SafeWork NSW v Arkwood (Gloucester) Pty Limited

Looking up at a tall Crane in the sky
SafeWork NSW v Arkwood (Gloucester) Pty Limited

In March 2022 the District Court of NSW found a Principal Contractor guilty for failing to eliminate or reduce so far as reasonably practicable the hazards posed by overhead powerlines when operating a crane.

In this article
What happened
Why was Arkwood guilty?
Do they have grounds for appeal?
Case Summary

What happened

On 25 October 2018 Arkwood, a provider of organic recycling services, arranged for an independent contractor to provide cranage to load equipment onto a flatbed truck.

  1. The crane operator on the day was not a licensed operator or qualified dogman
  2. The two Arkwood employees who acted as dogmen were not qualified.

The two Arkwood employees were electrocuted when the crane boom struck overhead powerlines.

Why was Arkwood guilty?

It “allowed” two unqualified employees to become involved in the task and act as dogmen. If Arkwood had simply left the entire crane operation to the crane operator I suspect they would have successfully argued that it was the obligation of the contractor to

  1. Supply a qualified dogman
  2. Supply a qualified crane operator
  3. Devise and implement a safe method of work including identifying and controlling the risks arising from the operation of the crane including contact with overhead powerlines.

Yet again this case comes down to a Principal Contractor getting unnecessarily involved in an independent contractors’ operations. It also gives insight (again) into when the argument of relying on an expert contractor is impaired.

Do they have grounds for appeal?

However, the following findings by the Court are problematic and I suggest would ground an appeal.

  1. Arkwood was responsible for ensuring the dogman provided by Highland cranes was licensedIt is the obligation of an independent contractor to be qualified and to provide qualified and competent workers to undertake work.
  2. Arkwood was required to undertake a joint risk assessment of the lift with the contractorAn independent contractor is responsible for undertaking their work, and a Principal Contractor is entitled to rely on them to do so without the involvement of or supervision by the Principal Contractor.
  3. Arkwood was required to issue warnings in regard to the position of a mobile crane and the powerlines prior to crane work commencing.”

Case Summary

Arkwood was entitled to rely on their independent contractor to undertake the work and manage ALL risk arising from it. Arkwood was not an expert in crane operations, or work near overhead powerlines, and it was entirely not reasonably practicable for them to determine where the crane should be positioned.

As a side note perhaps Arkwood would have been better off pleading not guilty on the basis that their workers undertook for themselves to act as dogmen when they were neither qualified nor directed to do so, and who engaged in conduct that was not within the actual or apparent scope of their employment