Industrial Relations Commission of New South Wales in Court Session CITATION : WorkCover Authority of NSW (Inspector Buggy) v Newcastle Port Corporation [2001] NSWIRComm 251 PROSECUTOR WorkCover Authority of New South Wales (Inspector Neil Buggy) PARTIES : DEFENDANT Newcastle Port Corporation FILE NUMBER: IRC4523 of 1999 CORAM: Peterson J CATCHWORDS : Occupational health and safety - s17(1)(a) - plea of guilty - defendant leasing common user wharf - sub-lessee stacking half containers by forklift - truck driver crushed between containers - assessment of penalty - consistency - gravity of offence - fine imposed. LEGISLATION CITED : Occupational Health and Safety Act 1983 R v Morgan (1993) 70 A Crim R 368 at 371 CASES CITED : Capral Aluminium Limited v WorkCover Authority of New South Wales (2000) 99 IR 29 at 56-7 Mainbrace Constructions Pty Ltd v WorkCover Authority of New South Wales (2000) 102 IR 84 at 104-6 R v Thompson, R v Houlton (1999-2000) 49 NSWLR 383 at 417 HEARING DATES: 06/14/2001 DATE OF JUDGMENT: 10/12/2001 PROSECUTOR Mr P M Skinner of counsel SOLICITOR Legal Services Branch, WorkCover Authority of NSW SYDNEY. LEGAL REPRESENTATIVES: DEFENDANT Mr R S Warren of counsel SOLICITOR Rankin & Nathan Solicitors NEWCASTLE. JUDGMENT: - 1 - INDUSTRIAL RELATIONS COMMISSION OF NEW SOUTH WALES IN COURT SESSION CORAM: PETERSON J DATE: 12 OCTOBER 2001 Matter No.IRC4523 of 1999 WORKCOVER AUTHORITY OF NSW (INSPECTOR BUGGY) v NEWCASTLE PORT CORPORATION. Prosecution under s17(1)(a) of the Occupational Health & Safety Act 1983. JUDGMENT 1 The Newcastle Port Corporation ('the Corporation'), is the defendant to a prosecution brought by Inspector Buggy on behalf of the WorkCover Authority of New South Wales in respect of a breach of s.17(1)(a) of the Occupational Health and Safety Act 1983 ('the Act'). 2 The Corporation has entered an early plea of guilty. It has had no prior convictions. 3 The charge relates to a wharf in Newcastle Harbour, known as No. 1 Throsby Basin, which in 1996 the Corporation leased from its owner. The wharf was then operating as a container facility, a "common user wharf", with a number of stevedoring companies licensed by the Corporation operating thereon from time to time. On 3 October 1996, an accident occurred when a forklift vehicle carrying two bolsters (half height shipping containers) caused a truck driver to be crushed between other bolsters sitting on the ground. The essential agreed facts will be recited shortly. 4 The truck driver, Robert Giles, was an employee of a company contracting to a stevedore, Strang International Pty Ltd., to transport bolsters away from the wharf. He had parked his vehicle, in company with another vehicle and driver, Kieth Marler and, while waiting to load, had climbed into a bolster to obtain some twist locks to lock containers together during transportation. It was as he climbed out that he was struck. He later died of his injuries. 5 The forklift driver was an employee of Conaust Ltd., trading as P&O Ports. P&O Ports was prosecuted for a breach of s16(1) of the Act and was the subject of a judgment of Schmidt J given on 7 December 2000 (Unreported [2000] NSWIRComm 249). The charge was to the effect that it failed to ensure persons not in its employment, particularly the deceased truck driver, were not exposed to risks while they were at its place of work, whilst forklift trucks transported shipping containers. The particulars of the charge were: (a) The defendant failed to put in place measures necessary to ensure that restricted access existed to the area in where forklifts were operating to move and load containers at the said wharf site. (b) As a result of the said failures, Robert Giles suffered fatal crush injuries. 6 That matter has some significance in this matter by virtue, as Mr Warren would have me accept, of its points of difference to the present case. The charge in the present case against the Corporation is that, at the wharf storage area of No. 1 Throsby Wharf in respect of which it had to any extent control, it did fail to ensure the premises were safe and without risk to health "whilst forklift trucks transported shipping containers". The particulars provided were: (a) Failing to provide designated pedestrian and vehicle travel corridors that were safe and without risk to health. (b) Failing to control access of vehicles and pedestrians to the Wharf area. 7 This difference of approach to the particulars has caused the prosecutor to argue that the words "control access" in the second particular embrace the giving of instructions to truck drivers, working in relation to a stevedore's activities, to remain in or by the vehicles. On the other hand, the Corporation submits its plea of guilty is to the charge as particularised, and that no failure by it caused the death of the truck driver. 8 Section 17(1) of the Act provides relevantly: 17(1) Each person who has, to any extent, control of - (a) non-domestic premises which have been made available to persons (not being the person's employees) as a place of work, or the means of access thereto or egress therefrom; or (b) ………………… shall ensure that the premises, the means of access thereto or egress therefrom ………………………are or is safe and without risks to health. 9 The agreed facts include the following: According to Keith Marler, on the day of the accident there had been a hold-up to the work because the keys to the forklift had been lost. Further, the containers had to be inspected by the Quarantine Inspectors before being loaded onto the trucks driven by Marler and by Giles. Just prior to the accident, Giles was some 15 to 20 metres distant from Marler. Giles was looking for twist locks which are used to lock containers on top of one another during transportation. Giles had climbed into the single half-height container and threw out two single twist locks onto the ground. He then climbed out of the container with his back towards the forklift. The forklift operator bumped the containers together to position them and this caused the container from which Giles had jumped to move towards him, pinning him against it and the previously stacked two containers on the workshop side. When Marler saw the forklift approaching the area, he called out to Giles but believes he did not hear him. It appeared to Marler that Giles did not hear or see the forklift approaching. At the time of the incident, the forklift operator did not have forward vision. 10 The agreed facts also show that at 3 October 1996 the wharf area was unfenced, yet had a gatehouse at the vehicle entry/exit point which was unmanned. There was, save for a sign which warned of "no unauthorised access", no control on entry of persons to the wharf. Officers of the Corporation at that time made only occasional visits to the wharf. 11 The wharf then had some marked pedestrian footways, but these were later recognised as inadequate and upgraded. Although this was a particular of the charge, I do not find this a significant factor in the exposure to risk of the deceased employee. If one is to refer to the features of the accident in support of the charge, it seems to me the second particular, concerning failure to control vehicles and pedestrians, bears the only relevance. It was Mr. Giles' activities as a person undertaking work in the area which were uncontrolled in the relevant sense and which constitute the basis of the offence. The provision of upgraded walkways does not, to my mind, provide an answer to the opportunity for the type of accident here to occur. 12 While the Corporation subsequently relinquished the lease of Throsby Wharf, prior to doing so, it made a number of alterations to wharf usage practices in response to this accident. The Corporation: 1. Provided access control at the gate by hiring a security firm to carry out this work. Truck drivers and pedestrians were informed of the safety procedures to be followed on the wharf and the correct clothing to be worn; 2. Provided painted walkways for pedestrians to follow; 3. Provided an induction process for regular users of the wharf to give instructions on safe working practices to be followed in the area; and 4. Installed safety signs indicating there was no public access and safety clothing required in the area. 13 Relevant changes, including the introduction of wharf rules, improved fencing and visitors passes for less regular visitors have also been implemented on other wharves operated by the Corporation at Newcastle. 14 In particular, a set of Wharf Rules has been adopted which include the following: 4. All motor vehicles must keep to the marked roadways and parking bays. If required to enter the operational areas (ie wharves and associated storage areas) to load, unload or for any other activity, permission shall be first obtained from the supervisor in charge of this area of operation. 5. Vehicle drivers must remain in their cab at all times whilst awaiting loading or unloading. Exceptions are - i To visit amenities by the designated walkway ii To secure the load. (The driver must remain within 2 meters of the truck for safety Under all circumstances the vehicle driver must wear personal protective equipment as in 1) above when leaving cab. (I have included only those rules which bear more directly upon the incident involved in this matter.) 15 Mr E.G. Melville, the Director, Tactical Projects of the Corporation, gave evidence in relation to these changes. He instanced some of the difficulties involved with a common user wharf. For example, cargo areas are delineated but it is only possible to do that in relation to the most common form of cargo. By inference, other cargos will not fit easily into those marked areas. Mr Melville made the point that the Corporation was very distressed and concerned that anybody could be killed or injured while using the Throsby Wharf and the Corporation worked very hard with WorkCover to ensure that this will not happen again. 16 There is no difficulty seeing that the incident involved in this matter related to the freedom which the absence of wharf rules extended to truck drivers and, in particular Mr Giles, to undertake the activity of searching for twist locks in the way that he did. Coupled with that freedom, was the inability of the forklift driver to maintain forward vision when transporting bolsters. It seems that the only perceived remedy to the latter problem is adopting work practices which are designed to ensure that individuals will not come into an area of danger while bolsters are being transported in work areas. 17 One difficulty with the present matter is that the nature of the particulars extend more widely than the particular accident concerning Mr Giles. The proceedings before Schmidt J against P&O Ports were, as Mr Skinner for the prosecutor submitted, directly relevant to the failures of P&O Ports in the areas where forklifts were working. While the charge levelled against the Corporation involves an express reference to the date upon which the accident occurred and the risk "whilst forklift trucks transported shipping containers" the particulars of the charge against the Corporation do not really relate to Mr Giles' circumstances. It is necessary to record, however, that the agreed facts contain the following: The system in place at the time of the incident was such that there were no restrictions as to entry to the premises and in particular to the area where the bolsters were being moved and stored. On entering the site, neither Marler nor Giles were given any instruction or direction by the Defendant. No information was provided by the Defendant to the workers. 18 The Corporation submitted, through Mr Warren of counsel, that the death of Mr Giles was the result of no failure by the Corporation. He strongly disputed the submissions made in the proceedings against P&O Ports, recorded in the judgment of Schmidt J, to the effect that "in the circumstances of the offence the culpability of the Corporation was greater than that of" P&O Ports. 19 In my view, the position is somewhat between that described by both counsel. There seems to be no reason to think otherwise than that the direct responsibility for the accident to Mr Giles lay in the operations conducted by the particular stevedore utilising the port on the day and the truck drivers themselves. On the other hand, the imposition by the Corporation of wharf rules which imposed duties upon truck drivers to act in a manner which would have prevented the occurrence of this accident, illustrates the degree of control available to the Corporation and the way in which it could have affected the possibility of an accident of this kind. This position I note was recognised by Schmidt J in the judgment involving P&O Ports in the following way: I also accept that account must be taken of the responsibility which the Corporation had for access to the site, as the result of the way in which it operated the hire of the site to various users. Nevertheless, the accident highlighted that the way in which the work in question had been organised by the defendant was deficient in a number of obvious respects. The way in which the Corporation dealt with access to the wharf was a matter which the defendant should have taken into account in its own work organisation, given the onerous responsibility which the Act imposed upon it. The defendant's plea, of course, accepts its failure in that regard. 20 I consider that the penalty imposed by Schmidt J is relevant to ensure consistency of sentencing. While the charge in that matter arose under s16, compared with s17(1)(a) here, and involved some different considerations, nevertheless both charges arose out of the occurrence of the same incident. The defendants are not, however, co-offenders. In assessing penalty I consider myself bound to pay regard to the penalty imposed on P&O Ports and to ensure that there is consistency between them, but also to ensure the penalty assessed here is "within the range appropriate to the objective gravity of the particular offence and the subjective circumstances of the particular offender, and not whether it is more severe or more lenient than some other sentence (other than that of a co-offender) which merely forms part of that range" (per Hunt CJ at CL in R v Morgan (1993) 70 A Crim R 368 at 371). See generally Capral Aluminium Limited v WorkCover Authority of New South Wales (2000) 99 IR 29 at 56-7 and Mainbrace Constructions Pty Ltd v WorkCover Authority of New South Wales (2000) 102 IR 84 at 104-6. 21 Taking into account the objective gravity of this offence, which I assess towards the lower end of the range, the early plea, the lack of prior convictions and the reaction of the Corporation to the accident, which evidences a degree of corporate contrition, I would assess an appropriate penalty as being $70,000, which I would reduce by 25 per cent for the value of the early plea (R v Thompson; R v Houlton (1999-2000) 49 NSWLR 383 at 417). This seems to me to produce a result not inconsistent with that imposed on P&O Ports. 22 I convict the defendant of the offence charged and impose a penalty of $52,500 with a moiety to the WorkCover Authority. I direct the parties to consider between them the issue of a costs order in the prosecutor's favour. I will hear them on that matter if necessary. DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated.