WorkCover Authority of NSW v Eastern Basin Pty Ltd

[2015] NSWDC 92

District Court

New South Wales

Medium Neutral Citation:	WorkCover Authority of NSW v Eastern Basin Pty Ltd [2015] NSWDC 92
Hearing dates:	6 – 8 May 2015
Decision date:	09 June 2015
Jurisdiction:	Criminal
Before:	Curtis, J
Decision:	The summons is dismissed
Catchwords:	OCCUPATIONAL HEALTH AND SAFETY – stevedore crushed and killed by a collapsing stack of aluminium ingots – ingots assembled by defendant – allegation that the defendant failed to develop a safe configuration for loading onto vessels – whether height of the stacked ingots was inherently unstable - whether strapping of ingots was sufficient – whether post-accident measure of revised strapping was adequate – whether measures particularised in the charge were reasonably practicable – whether conduct of others is relevant to the issue of reasonable practicality
Legislation Cited:	Work Health and Safety Act 2011 Evidence Act 1995 Occupational Health Safety and Welfare Act 1986 (SA) Occupational Health and Safety Act 2004 (Vic) Navigation Act 2012 (Cth) (Marine Order 32)
Cases Cited:	Kirk v Industrial Relations Commission [2010] HCA 1 Slivak v Lurgi Pty Ltd [2001] 205 CLR 304 Chugg v Pacific Dunlop Ltd [1990] 170 CLR 249 Baiada Poultry Pty Ltd v the Queen [2012] HCA 14 Briginshaw v Briginshaw [1938] 34; (1938) 60 CLR 336
Texts Cited:	Starkie’s Law of Evidence
Category:	Principal judgment
Parties:	WorkCover Authority of New South Wales (Prosecutor) Eastern Basin Pty Ltd (Defendant)
Representation:	Counsel: M B J Lee SC with C Magee (Presecutor) B D Hodgkinson SC with G H Livermore (Defendant) Solicitors: WorkCover Legal Services (Prosecutor) Sparke Helmore Lawyers (Defendant)
File Number(s):	2014/75557
Publication restriction:	None

Judgment

Introduction

1. At 9 PM on 23 September 2012, Mr Gregory Fitzgibbon, a stevedore employed by Newcastle Stevedores Proprietary Limited (Newcastle Stevedores) was killed when he was crushed by a collapsing stack of aluminium ingots, known as a Gauchi Pack, inside the hold of the ship Weaver Arrow then docked at No 1 East Basin Wharf Cowper Street Carrington.

2. The Gauchi Pack was assembled by Eastern Basin Proprietary Limited (Eastern Basin). This company conducted a cargo storage and assembly facility on land adjacent to No 1 wharf. It there received smaller packs of aluminium ingots from Tomago Aluminium Company Pty Ltd and assembled those smaller packs into the larger packs known as the Gauchi Packs which it delivered to the wharf for loading by Newcastle Stevedores.

3. The prosecutor contends that the Gauchi Packs were inherently unstable and that, in contravention of section 19(2) of the Work Health and Safety Act 2011, Eastern Basin failed to ensure so far as was reasonably practicable, the health and safety of Mr Fitzgibbon.

4. Section 19(2) provides as follows:

Primary Duty of Care

(2) A person conducting a business or undertaking must ensure, so far as is reasonably practicable, that the health and safety of other persons is not put at risk from work carried out as part of the conduct of the business or undertaking.

5. Paragraph 6 of the summons asserts that Eastern Basin failed to discharge its duty in the following respects:

The defendant failed to develop and implement a safe configuration for the unitising of ingot packs for loading onto vessels. In particular, the defendant failed to ensure that:

(a) It undertook an assessment and review of the configuration for the unitised ingot packs for loading onto vessels.

(b) The configuration of the ingot packs had a low height to width ratio so as to ensure the ingot lifts were stable; and

(c) An adequate strapping arrangement was applied to the ingot packs such as an arrangement that included the application of additional straps at intervals vertically around the circumference of the ingot packs to reduce the risk that aluminium ingot packs could be displaced or unstable and fall during the process of loading in the holds of vessels.

The Gauchi Packs

6. The following description can be best understood by reference to the copy of Exhibit PX 4 that forms an annexure to these reasons.

7. The ingots manufactured by Tomago, although flat on the bottom, were otherwise of a uniform but irregular shape. Each ingot weighed approximately 23 kg and was approximately 73 cm in length, 16 cm in width and 12 cm in height. The ingots were assembled by Tomago into packs of 44 ingots referred to as ingot packs. The dimensions of the ingot packs were 73 cm x 73 cm x 1.2 m. Each ingot pack weighed one tonne, and was secured by three vertical polyester straps in one direction and one strap in the transverse direction.

8. After delivery to the Eastern Basin Yard the Tomago ingot packs were assembled into Gauchi Packs by a forklift operator. The operator first created a sub-assembly by placing one ingot pack on top of another and passing a lifting strap around both to create what I will call a vertical lifting pair with dimensions 73 cm x 73 cm x 2.3 metres.

9. The vertical lifting pairs were then placed in rows of either 2 x 5 to form a 20 ingot pack Gauchi Pack or 2 x 6 to form a 24 ingot pack Gauchi Pack. Horizontal overlapping steel straps called “belly straps” passed around the whole circumference level of the top ingot packs of the vertical lifting pairs. These straps held the component lifting pairs together to form one Gauchi Pack.

10. A 20 ingot pack Gauchi Pack weighed approximately 20 tonnes and was approximately 1.5 metres in width, 3.6 metres in length and 2.3 metres in height. It was designed to be lifted by the 10 separate lifting straps attached to each lifting pair.

11. A 24 ingot pack Gauchi Pack weighed approximately 24 tonnes and was approximately 1.5 metres in width, 4.4 metres in length and 2.3 metres in height. It was designed to be lifted by 12 separate lifting straps.

12. The assembled Gauchi Packs were lifted by a front end loader fitted with compressive hydraulic arms that squared up the pack and placed it on the flatbed of a truck for delivery to the wharf. The driver of the truck was required to securely chain the Gauchi pack to the bed of the trailer to prevent movement.

The System of Loading

13. The flatbed truck was driven to the wharf and positioned underneath the vessel’s gantry crane where wharf hands employed by Newcastle Stevedores attached the lifting straps of the Gauchi pack to a series of hooks on the purpose-built spreader of the gantry crane. The crane driver then lifted the pack approximately 10 to 20 cm clear of the bed of the truck for inspection by wharf hands employed by Newcastle Stevedores.

14. If during this inspection the lifting straps or the belly straps were seen to be broken, damaged or not positioned correctly, or the component lifting pairs splayed or separated in the course of the lift, the wharf hands would signal the crane operator to return the lift to the bed of the truck and the truck driver would be directed to return the pack to Eastern Basin to rectify the problem.

15. Once the Newcastle Stevedores wharf hands had accepted the Gauchi Pack, Eastern Basin’s involvement in the loading process ceased.

16. Thereafter the crane driver lifted the Gauchi Pack, traversed the gantry crane to a position over the hold, and lowered it in accordance with directions of the senior stevedore within the hold.

17. The Gauchi Packs were stowed in the holds in up to 5 tiers, each tier consisting of three rows of 15 packs. The bottom tier was laid directly upon the flat floor of the hold and for that reason there were no problems with stability.

Dunnage

18. After each tier was completed the stevedores laid planks of wood known as dunnage on top of the packs in that tier, and members of the ship’s crew inserted inflatable rubber airbags in any voids between the packs to prevent movement at sea.

19. The dunnage was laid for two purposes:

(a) First to increase stability. The dunnage formed a level floor on top of the completed tier, and also by careful placement under the leading edge of the individual packs in the new tier caused the packs to lean backwards against either the side of the hull or another pack on the same level. This countered the possibility that they may topple into the void consisting of the unfilled spaces in the tier when they were released by the crane. The use of dunnage could also obviate any unevenness caused by airbags protruding from their placement between Gauchi Packs into the level above.

(b) Secondly, to prevent the lifting straps being damaged by their being jammed between load-bearing surfaces of the upper and lower packs.

Hitting Up

20. In the course of loading the Gauchi Packs the crane driver would on occasion undertake a process known as “hitting up”. This occurred in two circumstances.

21. First, if parts of the Gauchi Pack became splayed. If the lifting straps were not correctly placed in grooves underneath the bottom ingots, adjacent lifting pairs of ingot packs sometimes became splayed or slightly separated at either their upper or lower extremities when the pack was lifted.

22. If the splay occurred at the lower extremity, the increased width of the pack may hinder placement between two other packs in the hold. If the splay occurred at the upper extremity, it may create a toppling moment when the pack was released from the crane.

23. A Gauchi Pack with a pronounced splay would be rejected by the stevedores and returned to Eastern Basin for adjustment of the Lifting Strap. If the stevedores considered that the destabilising effect of the splay was minor and could be remedied by dunnage, the pack was accepted and loaded.

24. A splay could also occur if the Gauchi Pack supported by the crane was inadvertently bumped up against packs already placed in the hold.

25. In that circumstance the problem was cured by the crane driver swinging the pack with some force against the vertical side wall of the hull to drive the separated ingot packs back together.

26. Secondly, the ship’s crew required that the stevedores achieve as tight a stow as possible. To achieve this compression, at regular intervals a suspended Gauchi Pack would be slammed against several preceding packs that had already been deposited in the tier to drive those packs closer together. The smooth surface provided by the wooden dunnage assisted the movement of the packs being hit up, although the process could also displace that dunnage.

27. In the course of the loading process stevedores were on occasion required to move from the upper tier to the lower tier to adjust the placement of dunnage. Ladders were provided for this purpose.

28. The hitting up process sometimes caused the belly straps to break. This occurred infrequently.

The Accident

29. At approximately 9 PM on 23 September 2012 the Newcastle Stevedores gang working within hold No 2 of the Weaver Arrow, were in the process of loading the final two Gauchi Packs in the middle of the third tier of ingots. These Gauchi Packs were 24 ingot packs comprising two rows each of six lifting pairs.

30. Mr Fitzgibbon was the designated Newcastle Stevedores Leading Hand for the shift. He was responsible for supervising the stevedores working within the hold and coordinating activities within the ship hold so that the Gauchi Packs were stowed in accordance with the ship stowage plan.

31. When the second last Gauchi Pack was suspended from the crane Mr Fitzgibbon directed the crane driver, Mr Adamthwaite, to use that pack to hit up the third last pack of the tier which had already been stowed. It was this third last pack that fell upon Mr Fitzgibbon.

32. After the process of hitting up, Mr Fitzgibbon observed that the dunnage laid beneath the intended site of the suspended pack was out of position. He directed Mr Adamthwaite to move the suspended pack to the other side of the gap so that he may readjust the dunnage.

33. Mr Fitzgibbon then climbed down the open face of the third last pack using the straps and ingots of the outermost vertical lifting pair pack as handholds and footholds. As he placed his foot on the surface of the tier below, the Gauchi Pack on which he descended fell towards him. In attempting to escape to the other side of the void he tripped and was crushed by the weight of the ingots.

34. It is clear that the Gauchi Pack collapsed because the dunnage had not been correctly placed on its leading edge so as to cause the pack to lean backwards in a stable state.

35. It is not so clear whether the belly bands were intact before the fall, or were broken or so damaged by the hit up that they failed when the stability of the Gauchi Pack was compromised by the overturning moment of Mr Fitzgibbon’s weight.

36. Mr Adamthwaite, the crane driver who saw the collapse, said that he did not know if the belly straps had broken before the accident.

Preventative Measures in Place before the Accident

37. Before the accident Mr Clive Brett, the Work Health and Safety and Training Coordinator employed by Newcastle Stevedores had prepared a document entitled Hazard ID and Risk Assessment Form for the purpose of safely loading Gauchi Packs. He identified the following risk:

Ingot pack falls unexpectedly due to stability issues-crush injury

The recommended control measures he devised to control this risk were:

Pack correctly stabilised before crane leaves.

Edge of pack not sitting on airbag.

Hold personnel do not stand in potential pinch point.

38. The working stevedores understood that the reference to pinch point was a reference to the area in front of the landed Gauchi Pack into which it may fall if it was unstable.

39. On 2 July 2010 after an incident where a Gauchi Pack had fallen in the hold of the ship Kite Arrow, Newcastle Stevedores issued a Safety Alert to its employees that provided:

Things we must do:

Always be aware of the potential for a pack to topple even if initially it looks secure.

Do not stand in a position where you could be crushed by a toppling pack especially with your back to it.

Do not unhooked the pack until you are confident that the lift is stable.

40. If Mr Fitzgibbon had complied with these directions he would not have been put at risk.

Preventative Measures after the Accident

41. After the accident Mr Brett created a revised Hazard ID and Risk Assessment Form. This included the following precautions to be observed by stevedores when loading Gauchi Packs, or placing dunnage, in order to to obviate the risk caused by an ingot pack toppling unexpectedly:

Pack correctly stabilised before crane leaves

Edge of pack not sitting on air-bag

Hold personnel clear of exclusion zone

If pack close to airbag ratchet it back to third pack (minimum) while pack still attached to spreader

If stow left with an exposed face of stow e.g. leaving port side and starting on starboard side, ratchet pack back to third pack (minimum) while pack still attached to spreader

Identify safe path before proceeding

Observe exclusion zones

Move cautiously

Use ladder correctly angled with one person bracing ladder

No air bagging by ship’s crew if activity likely to distract hold personnel

Ensure that pack is ratcheted back and that pack to be dunnaged remains attached to spreader until worker leaves workspace

42. Pursuant to the revised system, a nylon strap was passed around the exposed face of the Gauchi Pack and tensioned by a ratchet attached to a lifting strap on a Gauchi Pack three rows back.

43. This system was adequate to obviate any risk posed by any instability, notwithstanding the lack of additional strapping on the Gauchi Pack.

44. On 24 September 2012, the morning after the accident, Mr Simpson, a WorkCover Inspector, issued a Prohibition Notice to Newcastle Stevedores requiring that it cease work and review its Safe Work Method Statement for loading the Gauchi Packs.

45. The following day Mr Brett attended upon Inspector Simpson with his revised Hazard ID and Risk Assessment Form. Inspector Simpson indicated to Mr Brett that the proposed remedial actions appeared satisfactory. He then consulted Mr Grant Croese, a member of Newcastle Stevedores Occupational Health and Safety Committee and a representative of the MUA. Mr Croese advised Inspector Simpson that the workers were satisfied with the proposed preventative measures.

46. Not one of these men required the further preventative measure of additional strapping by Eastern Basin.

47. Mr Simpson then revoked his Prohibition Notice so that loading could recommence.

48. Newcastle Stevedores then sought to recommence loading operations but were stopped by the managers of Eastern Basin who were then unaware that the prohibition notice had been lifted.

49. On 28 September 2012 when loading recommenced, Eastern Basin placed additional strapping around the Gauchi Packs.

Onus of Proof

50. The duty imposed by section 19(2) is a duty conditioned by the words “so far as is reasonably practicable”. The reasonable practicality of the measures proposed by the prosecutor is an element relevant to proof of the offence.

51. The High Court in Kirk v Industrial Relations Commission [2010] HCA 1 held that because Section 53 of the former Occupational Health & Safety Act 1983 provided that a person charged with failing to ensure the health, safety and welfare at work of his employees in contravention of section 15 of the Act, may defend that charge upon proof by him that it was not reasonably practicable for him to comply with the provisions of the Act. It was not the prosecutor but the defendant who bore the onus of proving that the measures for which the prosecution contended were not reasonably practicable. The plurality said at [16]:

The scheme of this legislation stood apart from other legislation of this type in Australia. In other States the employer’s obligation, to take measures for the health and safety of employees and others, was limited to the taking of such measures as were practicable. This Court has held that such a provision places the onus upon the prosecution to show that the means which should have been employed to remove or mitigate risk were practicable.

[See for example Slivak v Lurgi Pty Ltd [2001] 205 CLR 304 and Chugg v Pacific Dunlop Ltd [1990] 170 CLR 249].

52. After this decision the Occupational Health & Safety Act 1983 was replaced by the Occupational Health & Safety Act 2000 which was in turn replaced by the Work Health and Safety Act 2011.

53. When enacting the Work Health and Safety Act 2011 the legislature deliberately refrained from repeating the substance of section 53.

54. In his second reading speech the Minister said:

The Work Health and Safety Bill 2011 illustrates the commitment of the New South Wales government to participate fully in a nationally harmonised system of occupational health and safety.

…

The Occupational Health and Safety Amendment Bill 2011 implements … key reforms in the Work Health and Safety Bill 2011: it removes the reverse onus of proof in Work Health and Safety prosecutions by requiring the prosecution to prove what “reasonably practicable” steps a defendant could have taken to avoid breaching the general duties to maintain a safe and healthy workplace…

55. Because the decision in Kirk v Industrial Relations Commission was based on repealed legislation its conclusions as to onus are no longer relevant.

56. Section 141 of the Evidence Act 1995 provides:

Criminal proceedings: standard of proof

In a criminal proceeding, the court is not to find the case of the prosecution proved unless it is satisfied that it has been proved beyond reasonable doubt.

57. The prosecutor must prove that the measures particularised in this charge are reasonably practicable.

The Content of the words Reasonably Practicable

58. Section 18 of the Act provides:

In this Act "reasonably practicable" in relation to a duty to ensure health and safety, means that which is, or was at a particular time, reasonably able to be done in relation to ensuring health and safety, taking into account and weighing up all relevant matters including:

(a) the likelihood of the hazard or the risk concerned occurring, and

(b) the degree of harm that might result from the hazard or the risk, and

(c) what the person concerned knows, or ought reasonably to know, about:

(i) the hazard or the risk, and

(ii) ways of eliminating or minimising the risk, and

(d) the availability and suitability of ways to eliminate or minimise the risk, and

(e) after assessing the extent of the risk and the available ways of eliminating or minimising the risk, the cost associated with available ways of eliminating or minimising the risk, including whether the cost is grossly disproportionate to the risk.

59. In Slivak v Lurgi the High Court considered the meaning of the words “reasonably practicable” in the operation of section 24(2)(a) of the Occupational Health Safety and Welfare Act 1986 (SA).

60. That section provided that where any structure was to be erected in the course of any work: The person who designs the structure must ensure so far as reasonably practicable that the structure is designed so that the persons who are required to erect it are, in doing so, safe from injury and risks to health.

The words “reasonably practicable” were not otherwise defined.

61. Gleeson CJ, Gummow and Hayne JJ held that because the design was capable of being safely erected, the designer did not breach the terms of the Act in failing to incorporate in his design additional bracing to obviate a foreseeable risk that the persons erecting the structure may depart from the specified dimensions and tolerances.

62. They said at [37]:

The appellants stressed the presence of the term "must ensure". However, the requirement is one of ensuring safety "so far as is reasonably practicable". The requirement applies to matters which are within the power of the designer to perform or check, such as ascertaining what use the structure will be put to, what loads it will experience when being built and the nature of the location in which it is to be erected. This is in contrast to the matters that would be forced within the ambit of this requirement were the submissions for the appellants accepted; for then a designer would be required to take account of factors outside the power of the designer to control, supervise or manage, such as the procedures to be adopted during construction.

63. Gaudron J, although dissenting on the facts, said at [53]:

The words "reasonably practicable" have, somewhat surprisingly, been the subject of much judicial consideration. It is surprising because the words "reasonably practicable" are ordinary words bearing their ordinary meaning. And the question whether a measure is or is not reasonably practicable is one which requires no more than the making of a value judgment in the light of all the facts. Nevertheless, three general propositions are to be discerned from the decided cases:

the phrase "reasonably practicable" means something narrower than "physically possible" or "feasible".

what is "reasonably practicable" is to be judged on the basis of what was known at the relevant time.

to determine what is "reasonably practicable" it is necessary to balance the likelihood of the risk occurring against the cost, time and trouble necessary to avert that risk.

64. Callinan J at [91] said:

In my opinion, by designing a structure and the procedure for its erection, with tolerances within reasonable bounds, and which the expert accepted, if constructed in accordance with the designs would work satisfactorily, and could be constructed safely, Lurgi did comply with the Act. By so doing, the designer, as opposed to the erector did ensure, so far as was reasonably practicable, the safety of Mr Slivak. Reasonable practicability does not contemplate or require infallibility. A designer is entitled to expect, and indeed assume, that its specifications will be adhered to closely, indeed even minutely, when tolerances descending to millimetres and the safety and welfare of workers are involved. In short, not only matters of time, expense and trouble, but also what may reasonably be expected of others are relevant matters. How the erector may reasonably be expected to act is simply one of the circumstances to be taken into account in determining whether in all of the circumstances, the designer has ensured the safety of workers undertaking the erection, so far as is reasonably practicable.

65. In Baiada Poultry Pty Ltd v The Queen [2012] HCA 14 the High Court considered sections 20 and 21 of the Occupational Health and Safety Act 2004 (Vic) that imposed a duty upon an employer to ensure, so far as is reasonably practicable the health and safety of his employees.

66. The plurality said at [15]:

All elements of the statutory description of the duty were important. The words "so far as is reasonably practicable" direct attention to the extent of the duty. The words "reasonably practicable" indicate that the duty does not require an employer to take every possible step that could be taken. The steps that are to be taken in performance of the duty are those that are reasonably practicable for the employer to take to achieve the identified end of providing and maintaining a safe working environment. Bare demonstration that a step could have been taken and that, if taken, it might have had some effect on the safety of a working environment does not, without more, demonstrate that an employer has broken the duty imposed by s 21(1). The question remains whether the employer has so far as is reasonably practicable provided and maintained a safe working environment.

The Prosecutor’s Burden

67. In a prosecution for breach of section 19(2) of the Work Health and Safety Act 2011 the prosecutor must prove beyond reasonable doubt that:

1. A risk arose from work carried out as part of the business or undertaking.

2. The measure particularised in the summons would cause that risk to be eliminated or minimised.

3. In all the circumstances, including, but not limited to, the the matters listed in section 18, it was reasonably practicable for the defendant to adopt that measure.

The Risk

68. The risk is identified in the summons in these terms:

The risk was the risk of being struck and/or crushed by packs of aluminium ingots while undertaking stevedores’ duties including the loading of cargo into the holds of vessels at the premises.

69. In his opening Mr Lee SC for the prosecutor said that this pleading encompasses two risks. The first was that Mr Fitzgibbon may be injured by the entire Gauchi Pack toppling over upon him, the second was that he may be injured by the Gauchi Pack becoming deunitised and either one or other ingots falling on him.

Causation

The First Risk (The Entire Gauchi Pack falling ) and The First Proposed Preventative Measure (Reconfiguration)

70. The first preventative measure pleaded by the prosecutor in paragraph 6 (b) of the summons, is that the defendant failed to eliminate the risk of the entire Gauchi Pack falling by failing to configure the Gauchi Packs so as to ensure that they had a low height to width ratio so as to ensure the ingot lifts were stable.

71. This pleading does not satisfy the requirements of a valid charge as explained in Kirk v Industrial Relations Commission of New South Wales (2010) 239 CLR 531. The charge does not specify the standard that Eastern Basin failed to meet. It does not stipulate the reasonably practicable height to width ratio necessary to reduce or eliminate the risk.

72. I understand from Mr Lee’s opening that this pleading is merely contextual to the substantive allegations of failures to adequately strap the Gauchi Packs contained in paragraph 6 (c) of the summons.

The First Risk (The Entire Gauchi Pack Falling) and the Second Preventative Measure (Additional Strapping)

73. The second preventative measure pleaded in paragraph 6 (c) of the summons is the provision of additional straps …to reduce the risk that aluminium ingot packs could be displaced or unstable and fall during the process of loading in the hold.

74. This measure could not eliminate or reduce the first risk identified by Mr Lee.

The evidence establishes that the Gauchi Pack fell because it was not placed upon the Gauchi Packs in the lower tier in such a manner as to lean backwards against the preceding pack. This circumstance created the risk that the whole of the Gauchi Pack, even if it was bound tightly with additional straps, may fall upon a worker standing adjacent to the pack on the lower tier.

75. On 22 June 2010 a Gauchi Pack loaded onto the second tier in the ship Kite Arrow toppled into the void although the belly straps were in place.

76. Mr Daryl Madden, the Cargo Superintendent of Newcastle Stevedores investigated that incident. He said that the photographs taken after the fall demonstrate that the Gauchi Pack fell in its entirety rather than in separate parts. He gave this evidence:

Q. So that even if following this incident the packs were given multiple straps and made homogenous and tight they were still capable of toppling if the ship lists?

A. Most likely, although we haven't, we haven't had one - a full pack topple over, I believe there's been single packs topple over since that time.

77. I am unpersuaded that the provision of additional strapping to bind the Gauchi Pack more tightly would eliminate or minimise the first risk identified in the summons.

The Second Risk (Parts of the Gauchi Pack Falling) and the Second Preventative Measure (Additional Strapping)

78. The pleaded preventative measure to eliminate the second risk is the same, that is, the provision of additional straps on the Gauchi Packs.

79. The necessity for this measure is predicated upon an assumption that the additional straps were needed because belly straps applied by Eastern Basin to the collapsed Gauchi Pack were either absent or inadequate to prevent the risk that Mr Fitzgibbon may be struck by either an ingot pack displaced from a lifting pair, or an individual ingot falling from within a damaged ingot pack.

80. Although on infrequent occasions the nylon straps containing the ingot packs were being damaged by the crane driver striking a suspended Gauchi Pack against the whole of the ship or another Gauchi Pack, causing individual ingots to fall, there is no evidence to suggest that the individual ingot packs were not tightly bound on this occasion. It follows that failure to provide additional straps was not a cause of a risk that Mr Fitzgibbon may be struck by a displaced ingot.

81. There is also no evidence, nor is it pleaded, that the belly straps applied by Eastern Basin were inadequate in strength to bind the ingot packs together.

82. There is no evidence that the belly straps were incorrectly applied by employees of Eastern Basin when assembling the Gauchi Pack or that the belly straps were damaged or incorrectly positioned when the Newcastle Stevedores wharf hands accepted delivery of the Gauchi Pack.

83. There is no evidence that the belly straps were broken when the Gauchi Pack was released by the crane.

84. Other than Mr Adamthwaite’s belief that this may have been the case, there is no evidence that the belly straps were damaged or broken by the hitting up process. I have already noted that Mr Adamthwaite said that he did not know if the belly straps had broken before the accident.

85. It is statistically improbable that the belly straps were broken. All witnesses agreed that this occurred rarely. The stevedore Mr John Milne who had been employed by Newcastle Stevedores for 15 years, said that in all this time he had seen ingot pack straps or belly straps broken maybe half a dozen times.

86. Photographs of the collapsed pack in the holds of the Kite Arrow revealed that the belly bands had been broken by the fall. When asked if it was possible that the belly bands of the pack that crushed Mr Fitzgibbon may have broken during the course of the fall Mr Brett said:

I can’t be definitely sure that it had broken before, no.

87. Mr Brett attended upon the site after the fall and made the following observation:

From the position of the dunnage post accident it was noted that it was sitting too far back on the end of the row that fell in. In this position it would have been kicking the outside row out rather than keeping it in to stabilise the pack.

88. He thought that the subsequent fall was caused by the weight of Mr Fitzgibbon upon the outside of the pack, possibly in combination with movement of the gantry cranes creating a listing moment in the ship, and deflation of an airbag incorrectly placed by the ship’s crew standing proud of the lower tier.

89. The prosecutor relies upon the opinion expressed by Mr Brett in evidence that in the absence of other forces the placement of the Gauchi Pack on the dunnage created a knife edge fulcrum upon which either the whole pack may pivot and fall, or, if the pack was not bound together, (my emphasis) upon which a single row of lifting pairs may pivot and fall independently of the other row.

90. Significantly, in relation to this issue Mr Brett conceded that he did not know exactly where the dunnage was before the accident. He gave this evidence:

Q. The proposition is this, if the dunnage is sitting underneath the middle or towards the back of the Gautschi pack and something else happens to make the Gautschi pack move towards the void, if the belly strap was in place, it's possible that the whole pack falls because of the knife edge, isn't it?

A. It's, it's possible.

91. No expert evidence is called that would permit conclusions as to the differential forces upon the Gauchi Pack, or its component parts, with or without the additional strapping, given various placements of a fulcrum created by the dunnage.

92. I am unpersuaded that the absence of additional straps caused the risks to which Mr Fitzgibbon was exposed.

Reasonable Practicality

Inherent Instability

93. Mr Lee asserts that because the defendant knew that the Gauchi Packs were “inherently unstable”, its failure to conceive and adopt the additional strapping before the accident was unreasonable.

94. He first relies upon the fact that although each individual lifting pair had an overall height to width ratio of 2.3m x 73cm, approximately 3:1, the lowest ingot was placed with its longest flat surface of 73 cm uppermost and the shorter flat surface of 43 cm at the bottom. This increases the height to width ratio of the lifting pairs to 2.3 m x 43 cm,approximately 1:5.

95. That is not however the height to width ratio of the completed Gauchi Pack. When the lifting pairs were bound together by the belly strap the completed Gauchi Pack stood not on one but on two shorter surfaces 30 cm apart. It is apparent from the schematic drawing of an individual aluminium ingot at page 721 of exhibit PX 2 that the width of a Gauchi Pack in contact with the ground is 1.160 m. This gives a height to width ratio of 2:1. To my mind this does not connote “inherent instability”. Many every day household items, such as garbage cans, have a greater height to width ratio.

96. Mr Lee submits that “the uncontested evidence is that the height compared to the narrow width of the packs made the Gauchi Packs inherently unstable” and “it was not seriously contested that due to the height to width ratio of the individual stacks were susceptible to topple over if tilted”.

97. There is evidence that when placed upon a flat surface, for instance the bottom or “skin” of the hold, the Gauchi Packs were stable. Both Mr Madden and Mr Brett said that the ingots would sit straight on the steel floor of the hold and there was no need to place dunnage on that surface to create stability. (Transcript 46.30, 138.35).

98. Without evidence as to the angle of tilt at which the centre of gravity of a Gauchi Pack moves to a point beyond the perimeter of the base, or the force required to induce that angle of tilt, the description “inherently unstable” is unhelpful.

Notice

99. Mr Lee next relies upon an incident where a Gauchi Packs collapsed from the bed of a truck because an Eastern Basin driver failed to apply chains, and other incidents where the incorrect placement of lifting straps caused displacement of the ingot packs. The first incident was obviously caused by the driver’s failure on one occasion only.

100. The problems caused by incorrect placement of the lifting straps were satisfactorily resolved by Eastern Basin locating the lifting straps more securely using cable ties, and Newcastle Stevedores directing its employees not to accept Gauchi Packs when the lifting straps or belly straps were seen to be broken, damaged or not positioned correctly, or the ingot packs splayed on the initial lift.

101. The circumstances to which Mr Lee refers were well known to the expert management of Newcastle Stevedores yet did not lead those managers to believe that the Gauchi Packs as they were configured could not be safely loaded.

102. Mr Lee further relies upon certain communications by Mr James Griffiths, the General Manager of Newcastle Stevedores, Mr Brett the Occupational Health and Safety manager and Mr Madden, the Cargo Superintendent to Eastern Basin to establish, beyond reasonable doubt, that because of these communications Eastern Basin knew or ought to have known that additional strapping would be a reasonably prudent measure to make the work of loading Gauchi Packs safer.

103. It is plain that each of these men, personally subject to a similar statutory duty to ensure the safety of Mr Fitzgibbon, and possessed of greater expertise in cargo handling, believed at the time of these communications, and even after the death of Mr Fitzgibbon, that the Gauchi Packs could be safely loaded without additional strapping.

104. Newcastle Stevedores devised and instituted safe working methods which Mr Brett said were constantly under review. Mr Griffiths said that the most recent review before the accident was conducted in May 2012.

Mr Griffiths

105. Mr Griffiths said that he had raised with Eastern Basin occurrences where belly bands had been loose, where a lifting strap was incorrectly positioned and where packs “in the yard” had been identified as being on a slight lean.

106. He said that his perceptions as to the height to width ratio of the pack, and the incidence of loose or broken belly straps led him to be concerned about the stability of the Gauchi Packs.

107. Mr Griffiths did not say that he communicated this concern to Eastern Basin. His concern was not translated into any perceived need to further review the preventative measures in place to guard against Gauchi Packs toppling.

Mr Madden

108. Mr Lee relies upon this evidence of Mr Madden:

Q. In your discussions with Eastern prior to the incident, had this issue of splaying and the role of the bellyband been the subject of discussion?

A. Yes. We had spoken about that. We always wondered why there was only one bellyband, why it wasn’t put top and bottom.

Q. Why did you wonder that?

A. Well the, the size of the steel strap that’s used as a bellyband is not, it’s only a small gauge.

Q. Mr Madden, you have spoken about the possibility of having an extra belly strap?

A. Yes.

Q. Did you communicate that to anybody at Eastern Basin?

A. Yes.

Q. When?

A. Prior to the incident.

Q. How long before?

A. Probably several years before.

Q. And what was the name of the person you told?

A. Probably would’ve been Darren Pozniak.

Q. Did you write it down or just speak to him?

A. No, no, just - most of my communication with Eastern Basin was verbal.

Q. Yes, but the purpose was to stop the splaying out in the course of the lift?

A. That’s one purpose, yes. And the other purpose is to stop it falling over, stop individual units falling over.

109. There are several problems with this evidence. If it is accepted it proves no more than that Mr Madden may have spoken to Mr Pozniak upon the subject of belly bands. Although Mr Madden said that one of his purposes was to stop individual units falling over he does not say that he communicated this purpose to the person to whom he spoke. Upon the evidence no individual unit had ever fallen prior to the time of the conversation. There is no evidence that Mr Madden communicated to his interlocutor any concern for safety.

110. This evidence is insufficiently exact and definite to compel satisfaction beyond reasonable doubt that Mr Madden placed the defendant on notice that the Gauchi Packs were so unstable that additional strapping should reasonably be provided to eliminate risks to the stevedores engaged in the work of loading.

109. Mr Lee also relies upon this further evidence by Mr Madden:

Q. On the basis of that experience in observing and supervising that process, did you form any overall views as to the stability of the Gauchi Packs?

A. My basic view was that when you move them or place them after they’ve been moved, they can be very unstable. They can fall over and have fallen over. Toppled over.

112. This evidence must be seen in context. To Mr Madden’s knowledge, before the incident occasioning this charge, a Gauchi Pack had toppled over on one occasion only.

113. Newcastle Stevedores commenced loading Gauchi Packs in 2000. Mr Madden said that between 300 and 400 Gauchi Packs were loaded each month. At an average of 350 Gauchi Packs each month approximately 42,000 Gauchi Packs had been loaded without mishap before the incident on the Kite Arrow on 22 June 2010.

114. In his Incident Report concerning that event, the stevedore involved, Mr Sabo, wrote:

As we have done this type of work for many years and have followed this stowing procedures of keeping loads straight and stable I’ve never seen one fall over.

Mr Brett

115. The Kite Arrow incident was the subject of a report by Mr Brett which he completed as follows:

Identify Causes

Clause 1. Stowage method. The practice of landing a packet directly on top of another will at some point invariably lead to an uneven surface which has to be countered by using dunnage to initially “kickback” packs and then perhaps use additional dunnage to stabilise further.

Cause 2. Possible incorrect assessment of the initial stability of the pack by hold personnel.

Clause 3. Possible listing of the ship

Corrective Action

Taken to task by several employees on basis that pack was clearly not stable to start. Had to have been on airbag which was why it started to lean slowly.

Felt that existing process OK.

116. Significantly Mr Brett did not identify as a cause of the incident the height to width ratio of the Gauchi Packs, or the composition or strapping of the Gauchi Packs, further, he believed that the risk identified was adequately controlled by control measures in place.

117. Mr Brett gave this evidence:

A. Well maybe it hadn't been dunnaged correctly, maybe the lift underneath may itself have not been level or I suppose there could've been several reasons.

Q. At any stage during the course of your activities in investigating incidents such as the type I've just taken you to, have you had any reason to consider the issue of bellybands?

A. No, the, the, the, the issue of bellybands, my recollection - the significance of those wasn't apparent till after, after the fatality, to me.

118. The death of Mr Fitzgibbon was investigated by Mr Brett who then prepared an Accident/Incident Near Miss Report Form. He did not in this document express any opinion that the belly straps were a cause of Mr Fitzgibbon’s death. He wrote:

Patrick’s [Eastern Basin] trialled additional vertical belly bands on the remaining packs loaded on the Weaver Arrow following Greg’s death these bands resulted in packs that were more solid/unified and required less hitting up.

…

Whilst one witness advises that they noted the belly straps were broken on the pack that toppled after the bumping up process it did not lead to identifying that the pack could potentially be less stable. Broken belly straps were noted infrequently and did not occur regularly during the bumping up process.

119. Mr Lee further relies upon this email sent by Mr Brett to Eastern Basin on 2 July 2010:

James tells me that the packs we handle in Newcastle are taller (2.1 vs 2.3) than at Portland. Also Daryl tells me that the packs in Portland are put together using a vibrator type device? That packs them tightly so it becomes a solid “single unit”. Darryl also informs me that the Portland ingots are slightly different (flatter design).

This suggests to me that the Portland packs are more stable, have little if any flex and would continue to provide a more stable base as each tier is layered down.

Clearly we could go some way to eliminating the potential for packs to topple if we had packs like those loaded at Portland. Are you able to follow this up with your customer?

Again this email is to be seen in context.

120. The email does not suggest any alteration in the strapping of the Gauchi Packs. It makes two suggestions, first that a vibrator may be used to pack the ingots more tightly, and second, that the ingots may be cast in a flatter shape. In relation to the first, Eastern Basin already compressed the Gauchi Packs with the hydraulic arms of the front end loader. In relation to the second the shape of the ingots was beyond the control of Eastern Basin.

121. The obvious purpose of the email was Mr Brett’s request that Eastern Basin raise with Tomago the possibility of casting the ingots in the shape of the Portland ingots.

122. On the same day he sent this email Mr Brett, informed by the Kite Arrow incident, published a revised Hazard ID and Risk Assessment Form in relation to the method of loading Gauchi Packs. It may be assumed that he turned his mind to the Kite Arrow incident and the characteristics of the Gauchi Packs in the form that they were delivered by Eastern Basin to the wharf for loading.

123. In the revised document Mr Brett did not alter the control measures then addressing the potential hazard of the ingot pack toppling unexpectedly due to stability issues. Those measures are set out in paragraph 32 above.

124. Patently Mr Brett, the Occupational Health and Safety Controller of Newcastle Stevedores, did not then consider that the preventative measure for which the prosecution now contends was necessary to control the risk.

Control

125. As is apparent from the reasons of Gleeson CJ, Gummow and Hayne JJ and also Callinan J in Slivak v Lurgi the extent of control, and reasonable expectations as to the conduct of others are relevant to the issue of reasonable practicality.

126. Two documents are relevant to this issue.

License agreement

127. Clause 4.5 of this agreement provided that Newcastle Stevedores was exclusively responsible for managing and controlling all operations and work activities connected with stevedoring. Clause 4.5 (c) expressly provided that:

The Stevedore will be exclusively responsible for managing and controlling all of its Associates during Operations and the Stevedore will be exclusively responsible for managing and controlling all issues and risks associated with the work place health, safety and environment of its Associates while they are in operating areas while Operations are being carried out.

128. The effect of this provision is not diminished by Clause 5.4 that provided that Newcastle Stevedores should fully comply with all directions given by Eastern Basin in relation to matters of safety. This power was exercised when Eastern Basin refused to permit loading operations to recommence after WorkCover approved the modified Work Method Statement provided by Newcastle Stevedores.

129. Clause 5.5 of the agreement required that Newcastle Stevedores immediately inform Eastern Basin of any circumstances likely to cause injury or damage.

130. At no time before the accident did Newcastle Stevedores inform Eastern Basin that the composition of the Gauchi Packs constituted a circumstance likely to cause injury or damage.

Marine Order 32

131. Marine order 32 is a regulation promulgated pursuant to the Navigation Act 2012 (Cth). The regulation, comprising 74 pages including 11 Schedules imposes a detailed prescriptive regime to be observed in safely loading or unloading vessels.

132. Clause 17 of the regulation provides that “The terminal operator must not, other than in accordance with this Order… to any extent load or unload a vessel or… use or operate any material handling equipment in connection with loading or unloading a vessel”.

133. Eastern Basin as the consignor of the Gauchi Packs could not reasonably be expected to have a working knowledge of this document or expertise in stevedoring operations. Compliance with Marine order 32 was solely the responsibility of Newcastle Stevedores. Eastern Basin Newcastle Stevedores had expertise in the loading of goods and materials into ships. There is no evidence that Eastern Basin possessed the same measure of skill or experience.

134. Mr Brett said that Newcastle Stevedores undertook the loading and unloading of many different cargoes, including odd shaped cargo that may have stability issues. He said that it had devised an abundance of procedures to cope with this work, and that its Work Health and Safety Committee continually monitored these procedures.

Control Exercised by Eastern Basin

135. Eastern Basin was not indifferent to safety before the accident and was diligent in its attempts to ensure that employees of Newcastle Stevedores were not exposed to risks arising out of its activities.

136. Steps taken by Eastern Basin included the following:

Requiring Newcastle Stevedores employees to undertake Eastern Basin induction requirements;

Requiring Newcastle Stevedores to submit hazard and risk assessments for review;

Conducting safety observations of Newcastle Stevedores working at the Eastern Basin Distribution Centre;

Consulting with Newcastle Stevedores when changes to equipment or procedures were required;

Requiring Newcastle Stevedores to report incidents and near misses;

Undertaking its own investigations of incidents and near misses.

137. Newcastle Stevedores were required by Eastern Basin to provide Safe Work Method Statements, Procedures, Job Safety Analysis, and Plant Operators current licence details before inductions could commence.

138. Eastern Basin prepared Safe Work Instructions for strapping and consolidating Gauchi Packs, including safe work instructions for the application of belly bands. It also retained the services of Mr David Brown from ITW Industrial Packing to review and test the strapping .

139. One document in evidence, a letter of 2 February 2012, written before the accident, demonstrates that Eastern Basin was quite conscious of its obligations under the legislation. In this letter Mr Ross Campbell speaking for Eastern Basin wrote to Mr Geoff Beesley of Newcastle Stevedores in these terms:

I am writing to express my concern in regards to the recent safety incidents that your stevedoring employees have been involved in while working at the Patrick East Basin Distribution Centre (EBDC).

As you know, Newcastle Stevedores (NSD) has, as a condition of his operation on the EBDC site, provided Patrick with an OHSE Plan. Patrick requires NSD to be fully compliant with that plan, and the EBDC Site Rules (in the site induction and posted around the SBDC site) at all times.

Quite clearly it is the responsibility of NSD to ensure that all tasks are performed in a safe manner while operating within the EBDC Site. In addition, in the event of any accident on site that is classified as a significant near miss, significant accident, medical treatment injury or lost time injury, NSD is obligated to inform an EBDC representative immediately. After the initial notification, EBDC is to be issued with a full incident/investigation report outlining the facts of the incident and the relevant corrective actions.

Due to the serious nature of the recent incidents, we are requesting that you provide firstly an immediate action list by COB Wednesday 16th of March. Secondly, a written detailed Action Plan by 31 March 2011, on how NSD plan to manage safely within the EBDC Site. I would request that the Plan is detailed outlining (as a minimum);

Actions to address On Site Safety Compliance and Performance.

Actions to address reporting of incidents in a timely manner.

Actions to address employee violation to any safety rules-including On Site Workplace Rules, NSD procedure compliance, Drug and Alcohol compliance.

Detailed timelines to address the above points with a regular progress updates.

Geoff I trust that you understand our request for addressing safety as I am sure that you strongly support our beliefs in ensuring the safety and well-being of all employees.

Conclusion

140. The prosecutor bears the onus of establishing reasonable practicability beyond reasonable doubt. The question of whether the additional strapping to the Gauchi Packs was a measure reasonably required of the defendant before the risk to Mr Fitzgibbon arose is a question which requires, in the words of Gaudron J, a value judgement in the light of all the facts… .

141. In considering whether the circumstances required that the defendant take that step I bear in mind the degree of persuasion required by the criminal law.

142. In Briginshaw v Briginshaw [1938] HCA 34; (1938) 60 CLR 336 Dixon J cited with approval this passage from Starkie’s Law of Evidence:

In all criminal cases whatsoever, it is essential to a verdict of condemnation that the guilt of the accused should be fully proved; neither a mere preponderance of evidence, nor any weight of preponderance of evidence, is sufficient for the purpose, unless it generate full belief of the fact to the exclusion of all reasonable doubt.

143. I am not persuaded that it was unreasonable for the defendant to rely upon the skill and expertise of Newcastle Stevedores to ensure that the Gauchi Packs as they were prepared by Eastern Basin and delivered to the wharf were safely loaded. I am not persuaded that the circumstances required Eastern Basin to provide the additional strapping on the Gauchi Packs at the time of the alleged offence.

144. I am fortified in this conclusion by the particular circumstance that after the accident, on 25 September 2012 Inspector Simpson, Mr Brett and Mr Croese were unanimously of the opinion that Gauchi Packs could be safely loaded without the further measure for which the prosecutor now contends.

145. In all the circumstances I am unpersuaded that the measure for which the prosecution contends was reasonably practicable.

Orders

146. The summons is dismissed.

I will hear the parties on costs.

Decision last updated: 17 June 2015