Andrew Douglas: So, Nina, let’s talk about Allsop and let’s talk about what happens when an assault occurs during working hours and whether it falls under the tests of workers’ compensation. Whether it occurred in the course of work and whether it was a contributing factor. And I think you don’t think this is the flashest case of all time.

Nina Hoang:  No. Well, the facts are really weird, okay? So the manager and the employee, both outside of their roles at work decided to invest in a crypto scheme and their investment went south. The manager then calls the employee and says, “Can I borrow $120,000 to cover my losses?” And employees like, “No.”

Andrew Douglas: Surprise?

Nina Hoang:  Oh wait, sorry. I should clarify. I think that occurred when the manager already arrived. So the manager called up the employee and said, “Can I come over to your house?” ‘Cause he was working from home. “So I can discuss something with you.” And then he comes to the house, ask the employee for the loan. The employee says, “No.” Proceeds to grab a knife from the kitchen and holds the employee at knife point for three and a half hours, demanding the money. The employee ends up being able to escape and calls the police. And after all of that, the workers’ comp regulator said, “Well, there was a sufficient link because he was working from home and he was their manager.” But it is so like not connected to work.

Andrew Douglas: No, I think it is.

Nina Hoang:  That’s so weird.

Andrew Douglas: Can I give you another example? So the person is at work. He’s sitting behind his desk, okay? Like this. The manager has a metal breakdown and punches him in the head as he walks past, okay? Unrelated to work ’cause the manager’s there, yes, work. But his actions had nothing to do with work. Still compensable.

Nina Hoang:  Yeah, but…

Andrew Douglas: Because it is the things that is was the person at work? Yes, it was in the course of employment. Was there anything in relation to the relationship that existed? Yes, they were employees. And yes, they did something outside of work, but what connected them to it was they’re employees. I don’t think it’s a bad decision. I think working from home is going to have a whole lot of these cases.

Nina Hoang:  Yeah, but normally with work-from-home arrangements, there are rules in place like don’t allow people to come to your house. That’s a very common thing. So had the manager not come to his house and say, met him at a pub or something and then assaulted him, would that be compensable?

Andrew Douglas: Well, it’s interesting because the second test that sits out at is, was work connected to it and causative of it, which is the Dring and Telstra and all those cases, I don’t think it would, but it was at a workplace, was between two work people and they were permitted to be there. I think it’s compensable.

Nina Hoang:  But that’s what I’m saying. I don’t think he was permitted to be there. I think it was just ’cause they were close. It just like crazy how much the regulator will stretch it to then become…

Andrew Douglas: Well, it’s benevolent legislation.

Nina Hoang:  Yeah. Well that’s why they’ve got no money. Like they keep accepting all the claims.

Andrew Douglas: They’ve got no resilience either.

Nina Hoang:  Oh my gosh. I don’t agree with that case.

Andrew Douglas: Yeah, no, I think it’s good law. But it just shows you the work from home thing is going to throw up some shocking cases.

Nina Hoang:  Oh, especially with the new legislation coming through.

Andrew Douglas: That’s right ’cause you’ve got to be there. Okay, come on. Let’s jump onto our case study. You ready for case study?

Nina Hoang:  Yeah. All right. So, “Matt ran a crane hire business called Big Crane. He was engaged by the principal contractor, Knock Down Kings, on a Deer Park industrial site to help decommission and demolish a factory complex. Matt inspected the site and realised he would need an easy-to-maneuver Maeda Crawler Crane to access the tight areas required to lift, carry and remove the steel structure housing a large electric engine that powered the conveyor belt. The conveyor belt carried quarried stone to a crusher.”

Andrew Douglas: Do you like my stories?

Nina Hoang:  Yeah, there’s a lot of like words. The approximate weight…

Andrew Douglas: You’re not generous to me.

Nina Hoang:  “Of the structure, including the engine, was estimated by Tom, the managing director of Knock Down Kings, to be 1.4 tonnes. The crane could lift a maximum of 1.5 tonnes when fully extended, but it would be difficult to carry such a load over uneven ground. Matt did not engage an engineer to verify the weight before accepting the contract or commencing the work. The crane had a weight sensor and alert system that warned the driver if the load exceeded the maximum capacity. If the load was too heavy, a warning light would flash on the driver’s dashboard and a beeper would emit a high-pitched warning sound. The driver and operator of the crane was Serge, who had worked for Matt for many years. Matt had spoken to Serge several times about his failure to comply with the company’s safety systems, specifically turning off weight-warning devices and failing to follow site Safe Work Method Statements . Matt thought long and hard about assigning Serge to the site but felt he had no choice as all his other cranes were out on wet hire, leaving only Serge available.”

Andrew Douglas: So can I just say, wet hire means machine in person. So machine and crane, dry hire is just the machine.

Nina Hoang:  Oh, okay.

Andrew Douglas: Wet hire is with the driver and operator.

Nina Hoang:  Okay. “The SWMS was amended to address the lift and carry process. Matt worked with Tom from Knock Down Kings to ensure an exclusion zone, the use of a dogman, and the path the crane would travel on was flattened and stabilised with fresh B-grade crushed rock, which was laid, rolled and compacted to ensure the crane’s pathway was safe and secure. Tom was responsible for the path improvements. Tom and his team secured the structure after cutting through the steel beams that held it in place. The dogman attached the chain so that the structure would remain stable and level when lifted. The dogman noted there was significant wind gusts above five metres from the ground and warned Serge. Serge replied, ‘Don’t worry, the load will be at street level shortly.’ As Serge began the lift, the warning light flashed on his dashboard and the beeper sounded. The gauge showed the load weighed 1.6 tonnes. Serge was not concerned, he assumed that once the load was positioned directly above the crane, the effective weight would decrease.” How would it decrease?

Andrew Douglas: It does. No, as as the crane goes out from that and it pulls back in, the load bearing reduces.

Nina Hoang:  What? Really?

Andrew Douglas: So, yeah, the crane is stronger when it’s direct, but it’s most vulnerable when stretched out.

Nina Hoang:  Oh, okay. “Serge lifted the structure,” sorry, Serge, “And the crane began to rock.”

Andrew Douglas: Well, it’s pretty stupid. It was still 1.6 .

Nina Hoang:  “Making audible signs of structural stress. Nonetheless, Serge managed to lift the structure off the roof and swung the arm forward. He began to drive forward while the light and beeper continued to signal overload. Serge switched the alarm off.” Okay. “As the roof height decreased, Serge started retracting the arm, but the strong wind caused the load to sway from side to side. Suddenly the ground beneath the left side of the crane collapsed under the weight, causing the crane to lurch sideways. The crane arm bent and then broke, sending the load swinging sharply to the left before crashing to the ground. One of Tom’s workers who had been observing from the side of the path was struck and killed when the load fell.” That was a lot of facts, Andrew.

Andrew Douglas: Yeah. No, I got to be excited about the facts though. This actually did a lot… You may think I make stuff up, but this is pretty close to the Canberra hospital site…

Nina Hoang:  Oh, Okay.

Andrew Douglas: Issue, the Watts case.

Nina Hoang:  Yeah.

Andrew Douglas: But a number of other cases that we’ve also been involved in. So I want you to understand nothing that I’m saying in this, like the switching off or the ignoring of warnings is strange in the crane industry, okay? So, the first question, what’s that?

Nina Hoang: Can Serge be charged for his safety breaches? If so, what are the charges and the likely sentence? Yeah, 100%.

Andrew Douglas: Yeah. So he is definitely in reckless endangerment land. But he could also be in crimes act manslaughter.

Nina Hoang:  Ah, in… Oh, okay.

Andrew Douglas: On every state and territory has a crime act manslaughter. ’cause he was reckless. He understood the risk of harm. He’d been told by the sensors that what he was doing was dangerous.

Nina Hoang:  Yep.

Andrew Douglas: He knew that given something was overweight it could fall and break and harm somebody.

Nina Hoang:  Yep.

Andrew Douglas: And knowing that…

Nina Hoang:  And he persisted.

Andrew Douglas: And he persisted. Look, he’d probably have a reckless endangerment. He’d probably serve a couple of years for this. This is worse than Jackson’s case, which was one year’s jail. So I’d say he’d have a couple of years.

Nina Hoang:  Yep. Can Matt and Big Crane be charged? If so, for what offences and what are the possible sentences?

Andrew Douglas: So I think that Matt and Big Crane are just walking towards workplace manslaughter. And in Victoria, industrial manslaughter.

Nina Hoang:  You think they’d get manslaughter? I don’t know if there’s anything they could have stopped on him.

Andrew Douglas: Oh no. Well, the short answer is they put somebody… Let’s talk about the wanting of… So, was there a duty of care?

Nina Hoang:  Yes.

Andrew Douglas: Yes. There was. So there were all the sections breaches under the act. What reasonable care is what was required. He knew that Serge took high levels of risk. He knew that he didn’t know what the weight was in real terms. He accepted somebody else view as to what the weight was.

Nina Hoang:  Wait, but Matt didn’t know that.

Andrew Douglas: No, Matt took Tom’s estimate of 1.4. He didn’t know, he didn’t go and get an engineer to verify.

Nina Hoang:  oh, sorry, I thought you meant Serge didn’t know the weight and I was like, “Yes, he did.”

Andrew Douglas: Yeah. No. So the fact is that Matt knew some things which should have put him on notice as to the considerable risk. He’s there in reckless endangerment land. But the issue is, given the fact you were lifting something that’s stuck to a roof and you haven’t got a proper estimate of weight, and you’ve got a person who’s historically dangerous in the use of things that you’re doing, there’s risk. But I think Matt would be charged reckless endangerment.

Nina Hoang:  Yeah, but I dunno…

Andrew Douglas: And so would Big Crane.

Nina Hoang:  If he would get industrial manslaughter.

Andrew Douglas: Well, it’s easy to prove industrial manslaughter. That’s the truth. Reckless endangerment has two subjective elements in it, which make it more difficult.

Nina Hoang:  Yeah, but regulators are like, at the moment, shy of going to that next step.

Andrew Douglas: Ah, not with mobile plant.

Nina Hoang:  Oh, okay.

Andrew Douglas: Yeah. If you think about it. But look, interesting. But I think they’re right there. I think Tom’s in a world of trouble.

Nina Hoang:  Oh yeah. Sorry, can Tom and Knock Down Kings be charged?

Andrew Douglas: Yeah, Tom’s in a world of trouble because he didn’t have the exclusion sign he didn’t compact the soils correctly. He did everything that was wrong that created the preconditions for failure. And he also gave an estimate which he assumed was being relied on weight, which was factually wrong. So again, probably end up in reckless endangerment land, but quite possibly industrial manslaughter.

Nina Hoang:  Yeah, and by the way, the fact that Serge had his issues which caused it wouldn’t have mitigated what Tom’s…

Andrew Douglas: What Tom did, no.

Nina Hoang:  Lack of action.

Andrew Douglas: No, not at all.

Nina Hoang:  Yeah.

Andrew Douglas: So there you go. Look, we’ve done that for a reason. 60% of all fatalities occur through mobile plant operation. Regulators in every state and territory are incredibly hot on prosecuting. And the crane industry is historically very bad with safety, partly because some parts of the crane industry aren’t operated by legitimate business as well. So there is a whole lot of stuff that sits around the crane industry, which is very difficult. So we thought we’d give it a run. Alright, well look thumbs up. Thanks very much.

Nina Hoang:  Yeah, give us a thumbs up. Thank you.

Andrew Douglas: And yeah.

Nina Hoang:  Bye

Nina Hoang:  Bye-Bye. I was going to say…