SafeWork NSW v Newcastle Stevedores Pty Ltd

[2016] NSWDC 294

District Court

New South Wales

Medium Neutral Citation:	SafeWork NSW v Newcastle Stevedores Pty Ltd [2016] NSWDC 294
Hearing dates:	17 October 2016
Decision date:	28 October 2016
Jurisdiction:	Criminal
Before:	Kearns DCJ
Decision:	The defendant is convicted and fined the sum of $150,000 with a moiety to the prosecutor. The defendant is to pay the prosecutor’s costs as agreed or assessed.
Catchwords:	CRIMINAL LAW; workplace prosecution; plea of guilty; loading of aluminium ingot packs into hold of ship; system of loading and packing; ladders provided for climbing up or down the aluminium ingot packs but use of ladders not mandated; exclusion zones; sling straps and ratcheting of packs not undertaken; worker climbing on aluminium ingot packs instead of using ladder when stacks of ingots started to move and topple falling on worker and fatally injuring him; extensive systems in place before incident; changes to system after incident; offence at top end of low culpability; general and specific deterrence; death an aggravating factor; subjective factors; costs taken into account; fine of $200,000 reduced by 25% for guilty plea
Legislation Cited:	Work Health and Safety Act 2011 Crimes (Sentencing Procedure) Act 1999
Cases Cited:	Inspector Nash v Macmahon Mining Services Pty Limited (re Junk) [2016] NSWDC 171
Category:	Sentence
Parties:	SafeWork New South Wales (prosecutor) Newcastle Stevedores Pty Limited (defendant)
Representation:	Counsel: Mr C Magee, instructed by SafeWork NSW Legal Services, appeared for the prosecutor Mr D O’Neil, instructed by HWL Ebsworth Lawyers, appeared for the defendant
File Number(s):	2014/75543

Judgment

The charge and plea

1. On 23 September 2012, Mr Fitzgibbon was fatally injured at East Basin Wharf in the Port of Newcastle when stacks of ingots fell and crushed him. He was working in the hold of a ship, the Weaver Arrow, when the incident occurred. Mr Fitzgibbon was an employee of the defendant.

2. The defendant has been charged with a breach of s 32 of the Work Health and Safety Act 2011 in that it failed to comply with a duty under s 19(1). The defendant has pleaded guilty.

Some preliminary matters

3. I was informed that Messrs Beesley and Griffiths, managing director and general manager of the defendant respectively, were present in Court for the sentence hearing. I was informed also that Mrs Fitzgibbon, the widow of Mr Fitzgibbon, was present in Court for the sentence hearing.

4. The plaintiff’s case comprised an Agreed Statement of Facts (Exhibit PX 1), a tender bundle (Exhibit PX 2) and a record of prior convictions (Exhibit PX 3).

5. The defendant’s case comprised an affidavit of Mr Beesley of 13 October 2016 (Beesley affidavit), Exhibit “RGB1” to that affidavit (Exhibit DX 1), and a second affidavit of Mr Beesley of 17 October 2016.

The incident

6. The circumstances leading to the incident were described in the Agreed Statement of Facts (Exhibit PX 1). It includes the following:

…

4.   Newcastle Stevedores Pty Ltd’s (“Newcastle Stevedores”) business or undertaking involved the provision of stevedoring services for the loading and unloading of cargo onto ships that docked at the premises.

…

12.   Newcastle Stevedores were engaged to load large packs of aluminium ingot into the holds of the Weaver Arrow.

13.   The ingots that were to be loaded on the Weaver Arrow were manufactured by Tomago Aluminium at its plant near Newcastle. Tomago Aluminium stacked the ingots into packs comprising forty-four ingots. These one tonne ingot packs were then transported to the premises and delivered to Eastern Basin at the Eastern Basin Distribution Centre.

14.   Eastern Basin configured and strapped ingot packs into larger configurations (“gouchee packs”). Each gouchee pack was strapped together by vertical steel lifting straps and two single overlapping horizontal straps by Eastern Basin. The ingots were configured as either a twenty pack (weighing 20 tonnes) or twenty-four bounded pack (weighing 24 tonnes).

15.   The gouchee packs were then transported to the berths at the premises on the back of a flatbed truck and were then positioned directly under the Weaver Arrow’s gantry cranes so that they could be loaded into the cargo holds by Newcastle Stevedores.

…

16.   At 10.00pm on 22 September 2012, stevedores employed by Newcastle Stevedores commenced loading the unitised ingot packs onto the Weaver Arrow using the ship’s two gantry cranes.

17.   Two gangs, comprising of six stevedores each, were deployed to load each hold. Each gang comprised of two crane drivers, two stevedores to work in the hold (one of which was a senior stevedore/team leader) and two stevedores to assist with the cargo lifts on the wharf.

18.   In order to load the ingots into the vessel’s cargo hold, the pre-strapped gouchee packs were hooked onto the gantry cranes spreader, hoisted into the ship’s hold and stowed in position according to the ship’s stowage plan.

19.   The gouchee packs were stowed in the cargo hold in tiers. Each tier consisted of three rows of fifteen lifts.

20.   During the loading of each tier of gouchee packs, the stevedores would undertake a process known as “hitting up” the gouchee packs. This involved bumping a suspended gouchee pack into the open face of the last landed gouchee pack so that it butted up against the previously landed packs in that particular row. The process of hitting up was undertaken to ensure as tight a stow as possible for the vessel’s voyage and to ensure that personnel loading on subsequent tiers had a solid base to work on.

21.   When a full tier of gouchee packs had been stowed, the stevedores would then lay down lengths of timber planks, known as “dunnage”, before stowing the next tier. The dunnage was used to prevent the cargo from shifting during the sea passage. It was also used during the loading process to secure the landed packs of ingots and prevent them from being unstable and toppling over.

22.   After the dunnage was placed into position, the spaces between rows were filled with inflatable rubber backs by the Gearbulk vessel crew and the stevedores would commence loading the next tier of gouchee packs into the vessel’s hold.

…

24.   Mr Fitzgibbon was the designated Team Leader for the shift. He was responsible for supervising the stevedores working within the hold and co-ordinating activities within the ship’s hold so that the gouchee packs were stowed in accordance with the ship stowage plan.

25.   At approximately 9.05pm the gang working within hold No.2 were in the process of loading the final two gouchee packs in the middle row of the third tier of ingots.

26.   Mr Fitzgibbon instructed the crane operator to “hit up” the gouchee pack that was previously loaded. During this process, the dunnage in the gap where the last two gouchee packs were to be stowed moved out of position.

27.   Mr Fitzgibbon directed the crane operator to move the suspended load so that he could readjust the dunnage.

28.   In order to readjust the dunnage, Mr Fitzgibbon proceeded to climb down from the top tier of the landed aluminium ingot packs in the hold to the second tier of ingots upon which the dunnage had been placed.

29.   Rather than use one of the portable ladders provided by Newcastle Stevedores to climb down to the second tier, Mr Fitzgibbon elected to climb down the open face of previously landed aluminium ingot packs, using the lifting straps and protruding shape of the ingots as foot-holds and hand-holds.

30.   As Mr Fitzgibbon was approximately half way down the gouchee pack, Mr Covell observed two packs of ingot stacks move. Mr Covell called out to Mr Fitzgibbon and urged him to jump. Mr Fitzgibbon moved towards the forward end of the gap between the tiers to avoid the two stacks of ingots that had toppled over. However the adjacent three stacks of ingots then began to fall over in quick succession. These stacks fell directly onto Mr Fitzgibbon and crushed his legs, torso, chest and head.

Systems of work

7. The defendant had systems of work in place prior to and at the time of the incident. Evidence of this was also contained in the Agreed Statement of Facts. It was also the subject of extensive coverage in Mr Beesley’s affidavit of 13 October 2016. This was so extensive it is not practical to detail or even summarise it all. It covered the bulk of a 105 paragraph affidavit covering 39 pages and almost 500 pages of exhibits. Mr Beesley is the managing director of the defendant and a highly experienced person in the shipping industry. I trust I do the defendant no disservice simply highlighting aspects of its safety systems.

Systems before the incident

8. One aspect of the defendant’s system is mentioned in the Agreed Statement of Facts. It is that the defendant conducted risk assessments on a periodic basis “and after a trigger, such as the occurrence of an incident or near miss significant to require a review of the existing procedure” (Exhibit PX 1 [33]). This agreed fact has a relevance in relation to some evidence admitted provisionally. That evidence comprised tabs 7, 8, 10 to 15 of Exhibit PX 2.

9. The material in these tabs related to the occurrence of prior incidents. The fact of prior occurrences is relevant to the issue of foreseeability. The foreseeability required is not the foreseeability of the mechanism of the incident, but the foreseeability of gouchee packs collapsing with consequent risk of injury. It does not matter that the circumstances of the prior incidents were different as it was not the precise mechanism of the incident that is to be foreseen. For that reason, the evidence is admissible and I allow it unconditionally. Its purpose, however, is limited. It is relevant and limited to foreseeability of the fact that gouchee packs, when stacked, were capable of falling. This much was foreseeable to and foreseen by the defendant. This evidence does not cut across the content of the Agreed Statement of Facts. Paragraph 33 of the Agreed Statement of Facts in the extract quoted in the previous paragraph acknowledges incidents or near misses that triggered safety assessment and review.

10. The defendant’s system before the incident included a “HAZARD ID & RISK ASSESSMENT FORM” dated 2 July 2010 (Exhibit PX 2, tab 9). This document identified a potential hazard of “Ingot pack topples unexpectedly due to stability issues – crush injury” and a recommended control measure of “Pack correctly stabilised before crane leaves”.

11. A similar document of 29 May 2012 (Exhibit PX 2, tab 16) included the same potential hazards and recommended controls. It also included additional potential hazards and controls. The evidence does not disclose the reason for the additional material, but it is clear it was a review by the defendant of its hazard ID and risk assessment form and it occurred soon after an incident on 26 April 2012. The circumstances of that incident were entirely different to this incident (Exhibit PX 2, tab 15). The review demonstrates an attention to safety to address the problem that occurred.

12. The defendant also had in place at the time of the incident a document dated 22 June 2012 entitled “Loading Aluminium Products onto Gearbulk Vessels” (Exhibit PX 2, tab17). This was the third revision of this document. It dealt in some detail with the safety requirements of loading aluminium products onto vessels. This document was the product of internal and external consultation (Beesley affidavit [27]).

13. The loading system used was largely that inherited from Strang Stevedoring when the defendant started undertaking the stevedoring operations at Newcastle. At that time, the defendant acquired two employees from Strang who were experienced in stevedoring operations and, in particular, in loading aluminium ingot packs. They were the deceased, Mr Fitzgibbon, and Mr Madden (Beesley affidavit [22]-[25]).

14. The defendant’s processes included the loading and unloading of 16 different types of cargo and six different types of vessels. Its safety processes had to address all possible combinations of vessels and of loading and unloading. Its systems have been developed by persons experienced in safety matters. The defendant had written procedures for each vessel type and each cargo type. Its employees were trained in these procedures. The written procedures were reviewed regularly and amended as needed. The defendant also had written hazard ID and risk assessment forms for each vessel type and each cargo type. Employees were also trained in these procedures. It is apparent from some samples of these in evidence that they were reviewed as needed, for example, Exhibit PX 2 tab 9 and tab 16.

15. Since 2004, the defendant has employed a work health and safety manager with experience and qualifications in matters of safety. He has implemented a number of measures as set out in [50] of the Beesley affidavit.

16. Mr Griffiths was appointed general manager in 2010. This was partly due to his experience in and commitment to safety. Part of that experience is set out in [51] of the Beesley affidavit.

17. In addition to the roles of Mr Brett and Mr Griffiths, Mr Beesley retained responsibility for work health and safety.

18. The defendant had a work health and safety committee and consultative committee. The work health and safety committee had 10 personnel, six of whom were employee representatives. The extracts of some of its minutes (Exhibit DX 1, tab 7) would suggest that it met about once every two months. The consultative committee comprised 10 personnel, being five representatives of the Maritime Union of Australia and five representatives of the defendant. Its functions include safety matters. It meets less frequently than the work health and safety committee.

19. The defendant also had in place toolbox talks and Take-Five procedures. It also had further documents in place concerning safety. These are set out in [66] of the Beesley affidavit.

20. The defendant’s workers received safety induction training. This was extensive, covering almost five days. New workers were paired with experienced workers.

21. The defendant provided safety training for its workers annually. Topics covered in training are set out in some detail in [72] of the Beesley affidavit:

a.   safety training specific to transferring loads…;

b.   safety training specific to forklift drivers;

c.   safety training specific to dogging duties;

d.   safety training specific to crane operation…;

e.   safety training specific to elevated work platform use;

f.   safety training specific to working at heights;

g.   first aid training;

h.   evacuation training;

i.   rail wagon shunting training; and

j.   self contained breathing apparatus training.

22. “In 2011 and 2012, the WHS Manager delivered specialised training to the workers about the lifting straps on the ingot gouchee packs, including what to check for before the lift was taken. During toolbox talks workers also received training on the procedures and other issues relating to loading aluminium ingots.” ([74] of the Beesley affidavit) I note Mr Fitzgibbon attended this training on 1 September 2011 and 24 June 2012.

23. The toolbox talk revision document of 2 August 2011 included the following:

“4.   If you are in the hold make sure you position yourself safely in case a strap fails and in case the lift topples once it is landed”.

24. At the time of the incident, the defendant had in place a document dated 22 June 2012 entitled “Loading Aluminium Products onto Gearbulk Vessels” (Exhibit PX 2, tab 17). It was the third revision of that document. The document contains considerable details including matters of safety. Workers received training in this in mid-2012. They also received training in the earlier revision of the document in November 2011. The defendant also took steps to ensure that workers had understood the training they had received and extensive steps in that regard are set out in [80] of the Beesley affidavit.

25. The defendant monitored its safety system on an ongoing basis. Mr Beesley sets out the detail of how this was done in [84] and [85] of his affidavit. He also sets out in detail in [86] of his affidavit steps personally undertaken by him.

26. Despite the extensive safety systems the defendant had in place and their monitoring and revision, the system in respect of loading aluminium ingots was deficient in two respects:

1. the provision of ladders for the use by workers when they were required to climb up or down tiers of gouchee packs within the hold of the vessel was not accompanied by a requirement mandating their use;

2. the defendant did not implement and enforce exclusion zones in this circumstance with a prerequisite for zone entry being that open faces of the ingot lifts were secured with sling straps, ratcheted back to prevent packs of ingots toppling.

Systems after the incident

27. The defendant, immediately after the incident on 25 September 2012, revised its hazard ID and risk assessment form (Exhibit PX 2, tab 18). It includes the following additional material:

Step in Job/ Operation	Potential Hazard	Risk Ranking	Current/ Recommended Control Measure	Residual Risk
Ingot pack topples unexpectedly due to stability issues – crush injury	2	… ·If pack close to airbag ratchet it back to 3rd pack (minimum) while pack still attached to spreader	-
Leaving one side of the row to continue loading against other side / face i.e. port or starboard	Ingot pack topples unexpectedly due to stability issues – crush injury	·If leaving an exposed face of stow e.g. leaving port side and starting on starboard side, ratchet pack back to 3rd pack (minimum) while pack still attached to spreader

The document has been revised a further four times up to 22 December 2013.

28. Also on 25 September 2012, the defendant revised its “Loading Aluminium Products onto Gearbulk Vessels” document (Exhibit DX 1, tab 16). The following material was added:

• “If during the loading of a row it is necessary to stop loading from the port side and commence on the starboard side or vice versa the LAST PACK ON THE SIDE WHICH HAS BEEN LEFT IS TO BE RATCHETED BACK TO ELIMINATE THE POTENTIAL FOR THE PACK TO TOPPLE

• If during the keying in of a row it is necessary to enter the restricted area (an area of 5 packs or less) This is only to occur once the incoming lift is in position, but still attached to the spreader AND WHEN THE PACK BEHIND THE WORKER HAS BEEN RATCHETED BACK”

(page 372 of Exhibit DX 1);

“NB. NEVER APPROACH A PACK (within 3 metres) unless it is still attached to the spreader in case the pack topples.

7.2.4   Loading Port and Starboard sides of the row.

If during the loading of a row it is decided to stop loading from the starboard side and commence on the port side or vice versa, THE LAST PACK LOADED ON THAT SIDE IS TO BE RATCHETED BACK. This is done by running a sling across the front of the pack (at least 2 ingots down) and ratcheting this back to lifting bands on a pack that is at least 3 packs from the end pack.

NB This is to occur whenever the loading side is changed.

7.2.5   Loading a pack in close proximity to an air bag

Due to the potential of the air bag to make the pack unstable, ratchet is back as described above

7.2.6   Keying in a row

If it is necessary to enter an area between different ends of a row for dunnaging purposes this is only to occur when the incoming pack is still attached to the spreader and the pack ‘behind’ the worker has been ratcheted back

7.2.7   Moving from one tier to another

This is to occur by using a ladder braced by a fellow worker to avoid the potential for falling or loosening a pack be (sic) dislodging an ingot”

(page 374 of Exhibit DX 1). This document was revised a further seven times up to 20 February 2013.

29. The defendant established “Aluminium Ingot Ratcheting Procedure” (Exhibit DX 1, tab 17). It has been revised twice.

30. In his affidavit in detailing improved safety procedures since the incident, Mr Beesley includes that employees have been prohibited from moving between tiers of ingots without the use of the ladder and that the defendant has set out the requirements for exclusion and safety zones for hold personnel when loading ingots [89 d.; e.].

29. The defendant has reviewed and reviews all its safety policies and procedures. It has engaged outside experts to assist with this. The work health and safety committee now meets once per month. A written checklist system is now in place for supervisors.

The sentencing process

32. I bear in mind several matters. I bear in mind the purposes of sentencing as enumerated in s 3A of the Crimes (Sentencing Procedure) Act 1999. I bear in mind the purposes of the Work Health and Safety Legislation, in particular ensuring the safety, health and welfare of workers and others on workplace premises. I bear in mind any relevant aggravating and mitigating factors, including any mentioned in s 21A of the Crimes (Sentencing Procedure) Act so far as any of those may be relevant.

33. I start my analysis with a consideration of the gravity of the offence. This is determined in part by the foreseeability of the risk of injury, the foreseeability of the consequences of the risk coming home and the measures available to avoid the risk.

34. Risk of injury from toppling gouchee packs was foreseeable. The risk was, in fact, foreseen. The Hazard & Risk Assessment Form (Exhibit PX 2, tab 16) identifies a potential hazard of ingot packs toppling both in the positioning or stabilising process and after the crane leaves the hold. Prior incidents established that the foreseeability of packs toppling is not a hypothetical, but a reality. Despite the foreseeability of packs toppling, the likelihood of that was low. This incident was the only one involving injury in about 50,000 loaded gouchee packs from 2001 up to the time of the incident (Beesley affidavit of 17 October 2016). That statistic needs to be tempered by the earlier incidents referred to.

35. The foreseeable consequences of the risks coming home clearly embraced serious injury, including fatal injury.

36. Measures were readily available to the defendant to eliminate or minimise the risk of injury. They have been referred to earlier. They are the matters concerning the use of the ladder and exclusion zones and ratcheting process. The defendant frankly acknowledges that to be the case.

37. In acknowledging its failure, the defendant offers no excuse for the failure to enforce the use of ladders. It freely acknowledges that in addressing the risk in this case, that was something that should have been addressed. As to the failure to adopt the engineering control of sling straps and ratchets, the defendant again acknowledges failure on its part and, though it does not seek to excuse its failure, it says its blameworthiness is ameliorated to some extent because this control was not industry practice (Beesley affidavit, [29] and [30]).

38. I accept that the defendant was conscientious about safety matters. The unchallenged and detailed evidence of this is set out in the Beesley affidavit. Its failure to adopt the measure of exclusion zone and ratcheting process came not from a failure to address the risk, but from a failure to think of that as a measure that would have effectively eliminated or minimised it. This observation is not so pertinent to the failure to mandate the use of the ladder. The ladder control was in fact addressed and implemented. The failure to enforce its use is less understandable than the failure of the other control. There is little point putting in place safety systems unless there is a process to ensure that the systems are enforced. The defendant’s position here is not helped by the fact that the use of the ladder in this instance was not a “one off”. It happened from time to time (Exhibit PX 1 [40]). The defendant must have had ample opportunity to discover this practice and stop it.

39. I think it is appropriate to assess this offence as being towards the upper end of low culpability. Mr Magee, who appeared for the Prosecutor, took issue with the defendant’s submission that the matter should be assessed in the low range of culpability and added that in any event the low end of the range must be starting at around $500,000. I gather the submission was intended to convey that the low end of the range would go up to $500,000. Bearing in mind that the maximum penalty applicable to this case is $1,500,000, that would be so if there were three and three only definitive categories being low, medium and high, and each category was of equal weight. Whilst it may be convenient to refer to culpability as being of low, medium or high range, they are not recognised categories. Further, if there are categories, they are not limited to those three. Yet further, even if there are only three categories, it is not the case that they should necessarily be split as to one third each.

40. I think the defendant’s approach to safety overall warrants this first offence being categorised in the low range. The principal reason I think it is at the upper end of the low range is the failure to mandate the use of the ladders. The need for the enforcement of safety systems that have been put in place is nothing novel. This is a matter that has been expressed many times over many years.

41. There are other matters to be taken into account.

42. General deterrence needs to be taken into account. This is especially so where the process involved is a dangerous one and with potential serious consequences, including fatal injuries.

43. Specific deterrence also needs to be taken into account. The defendant continues to operate in a high risk injury and in a significant way. The need for specific deterrence is ameliorated to some extent by the defendant’s approach to safety both before and after the incident. It has been conscientious and diligent in this regard. Its immediate response with improved safety systems and its ready acceptance of responsibility support a diminished role for specific deterrence in this case.

44. The death of Mr Fitzgibbon I take into account as an aggravating factor as, obviously, “the injury … was substantial” – Crimes (Sentencing Procedure) Act1999 s 21A(2)(g). This is not punishing the defendant twice as the fatal injury to Mr Fitzgibbon is not an element of the offence.

45. There are subjective considerations to take into account. The defendant has no prior convictions. This is to be understood against a background that the defendant has been operating since 1996 (Beesley affidavit [8]). It now employs about 100 people. Its work covers different types of vessels and different types of cargo as referred to above. Its work process loading aluminium packs started in 2001 and up to the time of the incident about 50,000 gouchee packs had been loaded by the defendant. It is a very good record.

46. The defendant has shown contrition and remorse.

47. The defendant is a good corporate citizen. Details of these matters are set out in the Beesley affidavit at [15] to [18], [99] to [104] and tab 19 of Exhibit DX 1.

48. The defendant is unlikely to reoffend. I accept it is rehabilitated.

49. The defendant has co-operated with the authorities. It entered a plea in circumstances that entitle it to a discount of 25% on the penalty that would otherwise be imposed. As indicated, the maximum penalty that may be imposed for an offence of this nature is $1,500,000. This amount is reserved for the most serious or extreme of cases.

50. There was an issue as to whether costs that the defendant will be required to pay to the Prosecutor may be taken into account. For reasons which I expressed in Inspector Nash v Macmahon Mining Services Pty Limited (re Junk) [2016] NSWDC 171 [51], I think they may be. It is but of minor impact in the circumstances of this case.

51. In all the circumstances, I think an appropriate penalty without discount for the early plea would be $200,000. With the discount, the appropriate fine is $150,000.

ORDERS

52. The defendant is convicted and fined the sum of $150,000 with a moiety to the prosecutor.

53. The defendant is to pay the prosecutor’s costs as agreed or assessed.

**********

Decision last updated: 08 November 2016