1. On Sunday afternoon 13^th July 1997 the Australian Federal Police informed me as the Coroner that a death had occurred during the course of the hospital demolition. The police further advised me that a number of persons had been injured, that property had been damaged by flying debris and that there were many thousands of spectators still present in the vicinity of the tragedy. A number of those spectators were dismayed and in a state of shock. The police requested my attendance at the scene immediately as the Coroner and then later at the hospital site during the course of that Sunday afternoon.
2. The attendance by the Coroner was in accordance with a time honoured tradition of fulfilling an inquisitorial function of fact – finding where there was a sudden unexplained death in extraordinary circumstances. The death of Katie Bender certainly met those historical criteria. These days the Coroner only attends in exceptional circumstances. A period of 4 hours was spent in the vicinity of Katie’s death and then later inspecting the hospital buildings accompanied by senior police officers. Thereafter the buildings and rubble were again inspected with Counsel Assisting the Inquest (Mr. Whybrow), Detective Constable Mark Johnsen and other police officers in late July and again in August 1997. Upon my inspection of the hospital buildings one of my primary concerns was to identify an expert in the implosion method of demolition who was totally independent of any party involved in the Acton Peninsula project and able to give evidence about the implosion process.
3. A few short days after the demolition failure it came to my notice that probably the best available expert of international renown was Mr. J. Mark Loizeaux, the President of Controlled Demolition Incorporated of Phoenix, Maryland USA. The Loizeaux family had been involved in the demolition of buildings and structures for 43 years and had imploded close on 2000 buildings of which at least 400 were steel framed encased structures. The Loizeaux group of companies had demolished approximately 7000 structures including bridges, buildings, chimneys offshore and nuclear facilities over a period of 51 years. In that time no member of the public had ever been killed or injured in the course of any of those demolitions. This segment of the Inquest was never seriously challenged save for some attempts to discredit Mr. Loizeaux in respect of a demolition in Perth in 1992 about which I shall shortly make some comments.
4. There was extensive video and documentary material tendered in the Inquest establishing that implosion, if undertaken competently, is a safe and effective method of demolition. The videos depicted a large number of implosions across the world. The structures imploded varied enormously in height, construction and locality. In some cases the implosions were conducted with the utmost speed and under extremely difficult circumstances such as arose after the devastating Mexico City earthquake in 1985 when it was necessary to bring down 26 damaged buildings.
5. Implosion is a violent bursting inward. An implosion has nothing to do with "blowing up" a building, a notion associated with thousands of pounds of explosives that are frequently applied in terrorist bombings. Only enough explosives are used to eliminate the critical structural supports. The weight of the edifice then produces its own collapse. It is the placement of the charges and the detonation timing which is of vital importance rather than the quantity of explosives used. Mr. Loizeaux describes the controlled collapse as the "sequential elimination of vertical structural supports".
6. Mr. Loizeaux assessed the implosion method, competently handled, as being just as safe as traditional demolition. Mr. Loizeaux assessed it as safer because implosions involve a far lower incidence of injury to workers and almost a nonexistent incident of injury to third parties. He justified that assessment on the following basis when he was asked these question by Mr. Johnson SC for the Territory: -

1. "Now you have been asked a number of questions about the use of implosion on the one hand, the use of conventional

1. Yes. Generally in the preparation of a structure for implosion you are not structurally dealing with or modifying the building that you are going to implode. You may saw strip it or you may remove salvage but your not sawing off the limb that your sitting on as is the case with demolition. Like conventional methods you’re literally taking apart what you are standing on. If you are close enough to take apart the building with a hydraulic ram or a wrecking ball and a crane, you are close enough for the building to collapse and hit you. The use of explosives in demolition moves the worker far away from the building during the actual demise of the structure so he cannot be hurt and will not be hurt if the project is handled properly, number one. Number two, the fact that the demolition takes place over a very short predetermined period of time, extraordinary measures can be taken to protect the worker, adjacent properties, adjacent activities that cannot be undertaken with the same diligence on a protracted contract for conventional demolition. Thirdly, once again, under the circumstances, I would have to say that if it is carried out properly the public is far safer in that when the actual demolition takes place all parties should be moved to an area which is clear of any risk of harm. And again in our experience we have never injured, in our 51-year history, a member of the public…

1. Would you agree with the statement that the implosion competently handled is just as safe as traditional demolition?

1. Yes.

1. Is it possible to go further and say that implosion competently handled is safer than traditional demolition?

1. Industry records in the United States – I cannot speak for Europe – demonstrate on a unit basis per square foot. There is a far lower incidence of injury to workers and almost of non - existing incidence of injury to third parties using implosion. It is infact safer".

1. The undoubted expertise of Mr. Loizeaux was never really challenged. His evidence regarding prudent demolition practice and procedure also passed without challenge as did his assessments of the particular short comings in the methodology adopted for these implosions. The criticisms, on a close analysis, did not relate to the methodology applied but rather to the fact that the implosion process raises consideration of safety. It was self evident from the video material produced in evidence to the Inquest that any form of a high rise demolition whether it be undertaken by conventional means or the implosion method produced or had the potential to produce fly material in the form of debris in the nature of rock, steel, dirt, concrete, brick or other items simply by reason of the force applied in the process. On any view of the demolition method unless conducted with safety and expertise, it is dangerous. No other party to the Inquest offered to the enquiry a witness of similar standing as Mr. Loizeaux on this issue as to the best available method of a demolition. The Court, from the outset, was amenable to any suitable expert witness being called upon to give evidence if so nominated by the parties.
2. It must be said the efforts made by some Counsel in their cross-examination of Mr. Loizeaux were less than satisfactory. I shall explain this comment further. The only attempts to challenge Mr. Loizeaux’s evidence did not relate to these matters or his own methodology but were directed to alleged failures by him or his companies in various projects they had undertaken. The allegations put to Mr. Loizeaux were generally, inaccurate and frequently based on hearsay causing Mr. Loizeaux at one stage to comment to Mr. Purnell SC for TCL: -

"If half of the effort had been made to see whether or not Mr. McCracken was qualified that you apparently made to find out every little job that may be less than perfect even with all of the inappropriate and wrong data that you approached me yesterday, he would never have been given permission to do this job".

3. It should also be noted that all Counsel had from 7^th October 1998 to 2^nd November 1998, a period of just over 3 weeks, to prepare and cross-examine Mr. Loizeaux who travelled from America especially for the purpose of giving evidence at the Inquest. The Inquest had adjourned for this period to await his arrival in Australia. It could not be achieved in a more expeditious manner due to his commitments. Mr. Loizeaux had arrived in Canberra from the United States on Tuesday, 3^rd November 1998. His evidence commenced at 9.00am on Wednesday, 4^th November 1998 and continued into the following day. The Court sat until 6.00pm on the Wednesday 4^th November 1998. On Thursday, 5^th November 1999 the evidence of Mr. Loizeaux resumed shortly after 9.00am and continued to about 10.45am when his evidence was concluded.

 

4. During the previous 3-week adjournment period there was considerable doubt held in my mind as to whether Mr. Loizeaux would actually attend the Inquest. The Coroner had no power to secure his attendance in Australia by the conventional summons method due to jurisdictional issues with an overseas witness.
5. It is necessary to mention at this juncture some serious concerns entertained by me during this three-week period. It needs to be stated in the public interest that Mr. Purnell SC for TCL raised in his submissions an article published in the Melbourne Age newspaper of 21^st March 1999 relating to the fact that Mr. Loizeaux had met with me.

Mr. Purnell SC sought clarification.

6. On 2^nd October 1998 I had written to Mr. Loizeaux concerning his attendance in Canberra to give evidence. A copy of this letter is included in the Report. During the early part of the adjournment period Detective Constable Mark Johnsen, the Officer in Charge of the Bender investigation and Counsel Assisting the Inquest informed me that due to international business commitments there were some real difficulties in Mr. Loizeaux attending the Inquest. The concern about Mr. Loizeaux’s attendance culminated in an email being received from him dated 20^th October 1998 explaining his business pressures and the inconvenience in travelling to Australia. This information was provided to me at a conference with Detective Johnsen, Mr. I. W. R. Nash and Mr. S. Whybrow of Counsel at 2.00pm on 22^nd October 1998.
7. The busy schedule of Mr. Loizeaux is evidenced by reference to two implosions about to be conducted by him at that time. On 23^rd October 1998 his company imploded the Pirates Cove Holiday Inn, Paradise Island, Bahamas. It was 19 level structure of 178 feet. These buildings were the tallest ever to be demolished in the Bahamas or the Caribbean. Then on 24^th October 1998 the J. L. Hudson Department Store in Detroit, Michigan was demolished. It was the tallest steel framed building ever imploded at 435 foot with an additional 110 - foot tall flag pole with a total square footage of 2.2 million square feet.
8. The potential unavailability of Mr. Loizeaux to give expert evidence presented a significant concern to me in that the Inquest was drawing to a close. Any further delay in the hearing was not in the interests of the parties yet the problem was where would a suitable expert be found to give evidence at such short notice. It should be stated that with a view to saving expense and inconvenience the viability of receiving his evidence on the closed circuit video system had been explored by me. This course was abandoned due to practical difficulties in the terms of a suitable venue

in Phoenix (Maryland), the time differences between the two countries in addition to the fact that certain Counsel wished to personally confer with Mr. Loizeaux upon his arrival in Australia. The course of action agreed upon was that the Coroner would telephone Mr. Loizeaux in Phoenix (Maryland) and express to him the importance of his attendance in Australia to give evidence.

9. Shortly after midnight on Tuesday, 27^th October 1998 I telephoned Mr. Loizeaux’s company Controlled Demolition Incorporated in Maryland. I was only able to speak to Mr. Loizeaux’s secretary who asked me to call back within an hour when she expected Mr. Loizeaux to be in attendance at his office. At 1.10am on Tuesday, 27^th October 1998 I spoke to Mr. Loizeaux for a period of about 23 minutes concerning the importance of his evidence to the Inquest. In summary the following issues were discussed with Mr. Loizeaux: -

1. The Court understood and appreciated his busy schedule,
2. It was grateful to him giving of his time to come to Australia,
3. It was important that the Court had the benefit of his expertise as the people of Canberra and the deceased’s family were anxious to know what went wrong with the implosion on Sunday, 13^th July 1997,
4. It was most probable that Mr. Rod McCracken, the shotfirer, would not give evidence to the Inquest on the grounds of self - incrimination and he was entitled to exercise his right to silence. Mr. Loizeaux’s evidence was of critical importance at this late stage as no other person of similar expertise was readily available,
5. The role of the Coroner in Australian Law was explained to Mr. Loizeaux in that it was a fact finding function, not adversarial and has powers to make recommendations to the authorities in relation to safety factors for future demolitions, and
6. Administrative matters relating to his airfares, accommodation and incidental expenses in addition to his consultancy and expert witness fees in respect of which the latter amount was to be funded from the Coroner’s budget for the Inquest.

1. Mr. Loizeaux was advised that he would be provided with further details on the latter issue at the conclusion of his evidence. Mr. Loizeaux was advised of the difficulties in having the evidence taken on the video system due to fact that there were a number of Counsel involved in the Inquest who had extensive questions. His personal presence made that task easier as it would involve some duration in time. There were also logistic difficulties in being able to show videos or physical items or Exhibits to him in these circumstances.
2. Mr. Loizeaux, upon his arrival in Canberra, sought, on Tuesday 3^rd November 1998, before giving his evidence an interview with the Coroner. This request was declined. Mr. Loizeaux was given by Detective Johnsen a letter dated 3^rd November 1998 and advised that if time permitted the Coroner would meet with him to discuss the letter after the conclusion of his evidence. A copy of this letter is reproduced in the Report. Subsequently, on Thursday, 5^th November 1998 I met Mr. Loizeaux at lunch at an Asian restaurant in West Row, Canberra City accompanied by Mr. I. W. R. Nash, Counsel Assisting, Mr. S. Whybrow of the DPP and Detective Johnsen. The question of his fees was discussed including the necessity for itemised detail in his memorandum of fees.
3. Mr. Loizeaux commenced a conversation in the terms referred to in the Age article but was not advanced beyond those terms by me. I declined to be engaged in further conversation on the subject. There was no further discussion concerning the Inquest or the evidence. Thereafter, the conversation was in general terms covering such broad topics of family and mutual sporting interests particularly his golfing interests. An invoice for his fees was subsequently received in my Chambers on 23^rd November 1998.
4. Mr. Loizeaux was a non-compellable witness. There had been a substantial degree of cooperation by him in coming to Australia at some personal inconvenience. It was a matter of professional courtesy that I joined with Counsel and Detective Johnsen to acknowledge his attendance in Canberra. The Coroner, both traditionally and historically, has a judicial and ministerial duty to discharge in relation to his inquisitiorial function particularly in relation to the attendance of witnesses.
5. Mr. Loizeaux frankly and fully responded to each matter put to him. These allegations related only to collateral credit issues rather than to any issue of substance and in any event Mr. Loizeaux answers only further emphasised what a competent and credible witness of an expert nature he was. It should be emphasised that no other expert was called to challenge the substance of Mr. Loizeaux’s evidence, despite all the parties having had several months notice of his attendance, his detailed record of interview with the police and access to the video material set out in Exhibit 161.
6. The following excerpts represent just some of the credit issues canvassed with Mr. Loizeaux by Counsel:-

24.

25. Even after Mr. Loizeaux was excused and had left Australia further attempts were made to collaterally attack his credit using only hearsay material and on issues upon which he had largely been cross examined and had fully responded. The manner in which this was done showed lack of preparation and was unhelpful to the Inquest because Mr. Loizeaux had left the country and was in no further position to respond even if he wished to do so. Again I have had regard to this material but it does not affect the manner in which I have assessed the reliability of his evidence. Mr. Loizeaux was a compelling witness. The substance of his evidence and the helpful clear manner in which it was presented assists the Inquest generally. I am prepared to accept his evidence without reservation.
26. The statutory framework, standards and codes applicable to implosion are essentially sound. Mr. Loizeaux stated "it’s a good code. I think its well thought out to the extent that it describes the practices and the responsibilities". His only recommendations for improvement in this regard related to better clarifying the lines of responsibility. Mr. Loizeaux said this: -

"I think you have an excellent code and standards. I think it would be extremely helpful if in both cases, venting of contractors and the definition of experience, prior experience and superintendency were more clarified. That they were clearer in terms of sights specific involvement and I think the responsibility should be passed up through some means, some idiom to the owner so that there is a clear linkage in terms of communication, financial and legal responsibility".

ADVERTISING IMPLOSION AS A PUBLIC EVENT

27. These comments are an extension to my earlier remarks under the title "The Public Event – An Issue of Public Safety".

"Watch it on TV

• Channel 2 (WJBK): One – hour special begins at 5.00pm, with Huel Perkins and Monica Gayle.
• Channel 4 (WDIV): Will cut in immediately before the implosion, with Carmen Harlan and Emery King anchoring.

• Channel 7 (WXYZ): Live coverage from about 5.30 – 6.00pm

• Channel 50 (WKBD): Will go live several minutes before blast.

Viewing the Implosion

Bring the following to protect yourself: -

• Ear plugs,

• Dust mask,
• Safety goggles

30. The claim is made by Mr. McCracken that he was being scrutinised by various nominated bodies and persons. Mr. McCracken was granted the contract on his credentials as a specialist implosion expert with lengthy experience in this field of work. The primary obligations lay with him to safely carry out the implosion. The fact that various persons and bodies to varying extents may have given consideration to what he was doing does not pass any responsibility to them nor allow Mr. McCracken to minimise the obligation and responsibilities which properly lay with him. I do not believe that this argument about "control" being exerted over Mr. McCracken is supported by any evidence.
31. I propose to briefly examine this issue of the induced collapse method in the context of how Mr. Dwyer of PCAPL considered the matter. These assertions need to be considered from the perspective of Mr. Dwyer noting that he was not questioned by Counsel then appearing for Mr. McCracken on this issue. The only evidence on this matter comes from Mr. Dwyer on 7^th October 1998 where he simply says: -

"Right. Besides what you’ve mentioned in your evidence in that record of interview, was the topic ever raised besides that occasion?---No, I don’t believe it was.

And am I correct it was never put to you as a proposition that firstly that the buildings had to be induce collapsed?---That’s correct, yes.

It wasn’t?---That’s correct, yes.

Or should be induce collapsed?---That’s correct, yes.

That wasn’t put either?---No.

Was Mr. Fenwick present when Mr. McCracken, can you recall was Mr. Fenwick present when Mr. McCracken mentioned the topic of induced collapse on that occasion?---No, I don’t believe he was, no.

32. In his record of interview Mr. Dwyer says: -

1. At any stage, did Rod McCracken mention to you that, um, it was possible that he could induce the building?

1. Yes he did.

1. Right. What was the – what was that conversation, how did that come about?

1. He advised me that, er, the way in which they were cutting the columns, they could induce, um, the building. Um, but he advised that, um, he could, not that it should, be induced collapse.

1. Right.

1. Um, and I want to stress at this point in time, that at no point in time during the project, did they say, up until the Thirteenth of July, the building couldn’t be imploded successfully and safely.

1. So they didn’t say that at all?

1. No, they didn’t say it couldn’t be successfully imploded.

1. Right.

1. Using the method they did.

1. Imploded safely? Was it ever a concern to you or anybody else that you’re aware of, whether he had sufficiently prepared the buildings for – for implosion prior to the detonation?

1. The only – the only question that I asked when he changed from the cutting charges to the other charges he used, would, um, um, it still, um, be successful and safe, and, um, there was no adverse comments in that regard made to me.

1. Okay, and the issue that I mentioned to you before about a conversation between yourself and Rod relating to inducing the building, was that – was that anything – was that in – depth or was that just in passing?

1. A passing comment, um, as I said to you before, um, because of the way they, um, were cutting the steel, he advised that the building could be not should be induced collapse.

1. Okay, and what was your answer to his – to that comment made by him?

1. Basically, um, he had a contract, ah, a contract to implode the buildings. Um, if he wanted to change his work methodology, ah, he would have to go back through City and Country Demolition and request it through him. I had no power to tell him what to do.

1. Right, so he – he was contracted to City and County Demolition?

1. I wouldn’t agree to him changing his work methodology.

1. So it would be fair to say he – at no stage did he say, "I want to induce it instead of imploding it"?

1. No.

1. Okay, it was just a passing comment?

1. As I – as I said – as I said, he stated that the building could be, not should be induce collapsed.

1. Right.

1. There’s a difference there.

1. Yes.

1. It’s a big difference and at no time did, um, did he state to me after changing his methodology in terms of changing the charges did he state to me that he couldn’t implode the building successfully or safely".

30. At all material times prior to and during the Inquest the position of Mr. Dwyer was crystal clear that "at no time did CCD or CBS ever state to me that there was going to be a safety problem with the way they were undertaking the implosion. Neither did they say that the implosion could not be carried out successfully". No proposal, formal or otherwise, was ever made that the buildings be demolished by "induced collapse" nor was

36. The Acton Peninsula project failed systemically in that: -

1. The contractor and subcontractor were insufficiently skilled for a complex project to be completed in the time schedule applicable,
2. The Project Managers representative was inadequately skilled for the task which was not a simple routine construction site to which his prior experience applied,
3. The Government Regulatory bodies failed to exercise their roles in a visible fashion, whereas
4. Senior officials of the CMD and the Chief Minister’s Media adviser, with no knowledge of the demolition process, played a prominent intrusive role that was wholly unwarranted in what was a commercial industrial project, and
5. The project did not have the benefit of a structural engineer and an explosives demolition expert in accordance with the Demolition Code of Practice.

1. TCL,
2. PCAPL,
3. CCD,
4. CBS, and
5. WorkCover

38. There was no need for the demolition to become a media promotion generated by the Government and senior members of the public service. The promotion was unfair, particularly to Messrs. Lavers and Hotham of TCL, who in my assessment, have been assigned with responsibility for the failed project when all that was asked of them was to undertake a function well beyond their expertise, qualifications and skills. It was not made any easier when PCAPL appointed Mr. C. Dwyer to oversee Messrs. McCracken and Fenwick. Mr. Dwyer was unsuitable, in the terms of his qualifications and experience, for appointment to such a significant and complex project.
39. The death of Katie Bender was a consequence of the failure of those involved on the project to adequately comply with the standards and codes as well as the requirements of the contracts themselves. I have previously identified these failures. There is no problem with the standards and codes if they are properly complied with. It is appropriate and opportune, therefore, for those Codes to now be comprehensively reviewed. Mr. Loizeaux’s analysis of these issues was clear and succinct. It was not the use of implosion as the method of demolition that caused Katie Bender’s death but rather the use of that method by incompetent and inexperienced persons. Implosion is a cost effective demolition method in the terms of time saved as opposed to using the traditional demolition process. The evidence justifies a finding by this Inquest that implosion, if carried out competently, is at least as safe, if not safer than the traditional methods of demolition.