In October 2016, in SafeWork NSW v Newcastle Stevedores Pty Ltd  NSWDC 294, a stevedoring company, was convicted and fined $150,000 by the District Court of NSW in relation to an incident in September 2012 when a team leader was fatally injured after 20-tonne stacks of aluminium ingot fell and crushed him while in the process of being loaded onto a ship.
Newcastle Stevedores pleaded guilty for failing to comply with its primary duty of care to ensure, so far as is reasonably practicable, the health and safety of its workers under the Work Health and Safety Act 2011 (NSW) (WHS Act) – in particular, sections 19 and 32.
The deceased worker led a team of five other stevedores in loading aluminium ingot stacks into the cargo holds of a tanker in port. Midway through the loading process, some timber planks which the team had laid to prevent cargo from shifting during sea passage moved out of position. The deceased directed his crane operator to move the suspended load to allow him to readjust the timber planks. To do so, the deceased climbed down the open face of previously loaded aluminium ingot stacks in the cargo hold, rather than using the portable ladders provided by Newcastle Stevedores. While climbing down, some ingot stacks started toppling causing some adjacent ingot stacks to fall directly onto him, crushing his legs, torso, chest and head.
The company's safety systems
Newcastle Stevedores operated in a high risk work environment, providing stevedoring services for the loading and unloading of bulk cargo onto ships and had extensive safety systems in place developed by persons experienced in safety matters. Among other things, Newcastle Stevedores:
- regularly reviewed the written safety procedures it had developed for six different vessel types and 16 different cargo types
- provided ongoing training for workers in these procedures as well as additional specialised training in relation to specific work tasks
- had a process for identifying and addressing risks and hazards in place, relevantly identified the risk of a crushing injury while loading aluminium ingot stacks and implemented controls
- monitored and updated its safety systems on an ongoing basis
- had a work health and safety committee (which met approximately every two months) and a consultative committee.
The Court's findings
The Court acknowledged Newcastle Stevedores' extensive safety systems, noting that its approach to safety both before and after the incident was 'conscientious and diligent'. There was evidence before the Court that this was the first incident involving an injury in approximately 50,000 loads.
However, the Court was critical of two deficiencies in respect of Newcastle Stevedoves' system for loading aluminium ingots. In particular:
- the safety system did not require the use of the portable ladders Newcastle Stevedores made available for climbing down aluminium ingot stacks, it was not mandatory to use the ladders
- exclusion zones were not implemented or enforced with a prerequisite for zone entry being to secure ingot lifts with sling straps and ratchets to prevent ingots toppling over (despite the company's argument that this did not reflect industry practice).
The Court held that measures were readily available to eliminate or minimise risk of injury caused by aluminium ingot stacks falling. In fact, Newcastle Stevedores acknowledged these deficiencies by rectifying them through updated safety procedures following the incident.
In all of the circumstances, Justice Kearns assessed Newcastle Stevedores' breach as being towards the upper end of the low range (without giving any guidance about what low range means). In making this finding, Justice Kearns considered the fact that Newcastle Stevedores:
- had no prior convictions
- had shown contrition and remorse
- was a good corporate citizen
- was unlikely to reoffend
- cooperated with authorities.
What does this mean for your organisation?
Even if your organisation takes safety seriously, has extensive safety systems in place and continually monitors and updates those systems, and has had no major incidents, there is still a risk that deficiencies exist which could lead to non-compliance with work health and safety law. The Court's decision highlights the importance of focusing on continuous WHS improvement, including:
- not only taking steps to identify and address a risk, but to ensure that the measures implemented effectively eliminate or minimise the risk, even if they are not industry practice. Newcastle Stevedores had measures in place but they were not effective enough
- enforcing the controls and safety systems in place. Newcastle Stevedores implemented the ladder control but did not mandate its use. In this regard, the Court stated: 'There is little point putting in place safety systems unless there is a process to ensure that the systems are enforced' (see para 38).