ACT court fines RAR Cranes $300,000 after Herman Holtz's death at University of Canberra construction site

Herman Holtz, 62, was killed in August 2016 when an overloaded mobile crane fell on him during the repositioning of a 10.3-tonne generator at the University of Canberra Hospital's construction site in Bruce.

Specialist sub-contractor RAR Cranes, based in Queanbeyan, owned the crane and its employee, Michael John Watts, now 50, was operating the machine at the time.

Mr Holtz worked for Multiplex, the construction project manager and site supervisor, and was among a group guiding Watts when the incident occurred.

RAR Cranes last October pleaded guilty to failing to comply with a work health and safety duty, thereby exposing Mr Holtz to the risk of death or serious injury.

The maximum penalty for that offence is $1.5m for a body corporate.

The company on Friday faced sentencing in the ACT Industrial Court, which heard another RAR Cranes worker trained in using that crane went on leave before the day of the incident.

However, he informed his employer training would be needed for anyone else operating it.

That training was not provided to Watts, an otherwise experienced crane operator, who the court heard was not given the chance to study the machine's user manual before using it.

On the day of the death, Multiplex wanted to move the generator to provide power to the site the next day and informed RAR Cranes about mid-afternoon.

Another crane was on the site but Multiplex considered it undesirable.

Watts and dogman Paul Kelly had been working with the crane since 6.15am that day and had completed four jobs across Canberra.

They arrived at the Bruce site during the late afternoon. They were not given a site induction.

During the moving of the generator, counterweights were connected to the crane, but it was attached in the wrong direction.

The generator was also placed at an angle higher than ideal while Mr Watts operated the crane with the override switch in place.

The court on Friday heard the override option was used only when necessary and with extreme caution.

The crane was overloaded during its 600m travel across uneven terrain where it tipped and instantly killed Mr Holtz.

Chief Magistrate Lorraine Walker convicted and fined RAR Cranes $300,000, to be paid within seven days.

Ms Walker said the company failed to assess the crane's suitability for the "high-risk operation" and that it had a greater criminal liability than Multiplex despite the latter appearing to have been pressuring the former to complete the task.

"RAR sent an otherwise competent worker to perform what has been identified by its own employee as a tricky job without appropriate training nor equipment to be used at an unfamiliar worksite in the dark at the end of a long day at work," Ms Walker said.

She said while the company had safety systems in place, it failed to comply with them, including the failure to instruct Watts to complete a site-specific risk assessment beforehand.

Ms Walker said the likelihood of the crane being operated improperly and risk of death or serious injury were apparent in the circumstances.

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Ms Walker said while Multiplex failed to comply with RAR Cranes' request for a site induction, the latter was "best-placed to assess viability to conduct the work required safely".

"With a subcontractor ... it will often, although not always, be more culpable than a principal with a broader supervisory role for the project," she said.

Ms Walker said there was a clear causal connection between RAR Cranes' conduct and the death, but that "it is the extent of the failure to ensure that the worker was not exposed to risks that is the criteria for assessing the seriousness of the breach rather than the consequences of any breach".

"The death of a worker was a foreseeable consequence of the criminal conduct. The effect of that on his family is profound and beyond measure," she said.

Following the sentencing, Mr Holtz's youngest daughter, Ana Lewis, read out a statement on behalf of the family.

"Our family has suffered tremendously through what has been six years of a very long and heartbreaking judicial process," Ms Lewis said.

"We took part in this with the intention and hope of not seeing other families go through what we have.

"Unfortunately, we've been let down by the system and its processes. The results of all cases are disturbing and hard to accept."

Ms Lewis said that as a family, they were "gutted, disappointed and angry".

"We're now without our dad," she said.

"Our children are without their papa.

"Our mum is without her husband.

"We've no further words to say."

The court on Friday heard since the incident, RAR Cranes, which had no previous convictions in its 28-year history, had introduced and implemented safety improvement initiatives, including encouraging staff to refuse unsafe work and adding external trainers.

The company, which has also expressed remorse for Mr Holtz's death, is also now part of a crane-safety committee.

Last November, Multiplex Constructions was convicted and fined $150,000 after it pleaded guilty to the same charge faced by RAR Cranes.

Watts received a suspended 12-month jail sentence in April 2020 after he pleaded guilty to engaging in reckless conduct that exposed Mr Holtz to the risk of death or serious injury.

He admitted the overloaded crane tipped after he had repeatedly overriden safety mechanisms and ignored warning alarms to continue operating it.

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