Citation: WorkCover Authority of NSW v Eastern Basin Pty Ltd [2015] NSWDC 92
Court: District Court of NSW
Date: 09 June 2015
Judge(s): Curtis J
Background
Eastern Basin Pty Ltd operated a cargo storage and assembly facility adjacent to No 1 East Basin Wharf at Carrington. It received smaller packs of aluminium ingots from a manufacturer and assembled them into large composite packs known as "Gauchi Packs," which were then delivered to the wharf for loading onto vessels by Newcastle Stevedores Pty Ltd.
On 23 September 2012, a stevedore employed by Newcastle Stevedores, Mr Gregory Fitzgibbon, was killed inside the hold of the vessel Weaver Arrow when a Gauchi Pack collapsed and crushed him. The pack fell after he descended its outer face to reposition dunnage (timber planking used to stabilise cargo), and the pack toppled toward him.
WorkCover Authority of NSW prosecuted Eastern Basin under section 19(2) of the Work Health and Safety Act 2011, alleging that Eastern Basin had failed to ensure, so far as was reasonably practicable, the health and safety of Mr Fitzgibbon. The prosecution contended Eastern Basin should have configured the Gauchi Packs with a lower height-to-width ratio and, critically, should have applied additional strapping to the packs before delivering them to the wharf.
Legal Issues
- Whether the Gauchi Packs were inherently unstable by reason of their height-to-width ratio
- Whether the strapping applied by Eastern Basin to the Gauchi Packs was adequate, or whether additional strapping was required
- Whether the absence of additional strapping caused or contributed to the risk that led to Mr Fitzgibbon's death
- Whether the measures particularised in the prosecution charge were "reasonably practicable" within the meaning of section 19(2) of the Work Health and Safety Act 2011
- Who bears the onus of proving reasonable practicability under the current legislation
- Whether the conduct and expertise of others, particularly Newcastle Stevedores, is relevant to the assessment of reasonable practicability
Decision
Issue 1: Onus of proof on reasonable practicability
Curtis J held that the prosecutor bears the onus of proving beyond reasonable doubt that the measures particularised in the charge were reasonably practicable. Unlike the predecessor legislation, the Work Health and Safety Act 2011 contains no provision shifting that onus to the defendant, a deliberate legislative choice reflected in the Minister's second reading speech (at [50]-[57]). The earlier High Court decision in Kirk v Industrial Relations Commission, which addressed onus under the repealed legislation, was therefore no longer relevant on this point (at [55]).
Issue 2: The height-to-width ratio allegation
The court found the pleading that Eastern Basin failed to configure the packs with a sufficiently low height-to-width ratio did not satisfy the requirements of a valid charge because it failed to specify what ratio Eastern Basin should have achieved (at [71]). In any event, the court found that a completed Gauchi Pack had a height-to-width ratio of approximately 2:1, which did not connote inherent instability and was comparable to everyday household objects (at [95]). When placed on a flat surface, the packs were stable without additional support (at [97]).
Issue 3: Whether additional strapping would have reduced the identified risks
The court identified two risks in the charge: the entire Gauchi Pack toppling, and the pack de-unitising so that individual ingots fell. On the first risk, the court found that additional strapping would not eliminate or reduce the danger of the whole pack toppling, noting that when a Gauchi Pack had previously fallen in the Kite Arrow incident, it fell in its entirety with belly bands intact (at [75]-[77]). On the second risk, the court found no evidence that the belly straps applied by Eastern Basin were absent, inadequate in strength, incorrectly applied, or damaged at the time of the accident (at [81]-[84]). It was statistically improbable that the belly straps had been broken, given witness evidence that this occurred only a handful of times in 15 years of operations (at [85]). The court concluded that the absence of additional strapping was not established as a cause of the risks to which Mr Fitzgibbon was exposed (at [92]).
Issue 4: Whether Eastern Basin knew or ought to have known additional strapping was required
The court rejected the submission that prior incidents or communications from Newcastle Stevedores placed Eastern Basin on notice that additional strapping was necessary. The communications relied upon by the prosecution were insufficiently precise to compel satisfaction beyond reasonable doubt that Eastern Basin had been warned of an inadequacy in the existing strapping arrangement (at [110]). Critically, Newcastle Stevedores, whose expertise in stevedoring and cargo handling far exceeded that of Eastern Basin, did not communicate any such concern to Eastern Basin and did not itself identify additional strapping as a necessary precaution, even after reviewing its procedures in May 2012 (at [103]-[107], [130]).
Issue 5: Reasonable practicability and reliance on the expertise of others
The court accepted that the conduct and reasonable expectations as to the conduct of others are relevant to the assessment of reasonable practicability, drawing on the reasoning in Slivak v Lurgi and Baiada Poultry (at [125]). Eastern Basin could not reasonably be expected to have working knowledge of Marine Order 32 or expertise in stevedoring operations; those obligations fell on Newcastle Stevedores (at [133]). The court was not persuaded that Eastern Basin was required to go beyond what Newcastle Stevedores, as the expert stevedore, regarded as sufficient (at [143]). The court noted it was fortified in this conclusion by the fact that, after the accident, a WorkCover inspector, Newcastle Stevedores' own safety coordinator, and a union representative all agreed that Gauchi Packs could be safely loaded without the additional strapping now contended for by the prosecution (at [144]).
Orders Made
- The summons against Eastern Basin Pty Ltd is dismissed.
Key Takeaways
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Under the Work Health and Safety Act 2011, the prosecutor bears the onus of proving beyond reasonable doubt that the measures particularised in a charge were reasonably practicable. The District Court confirmed that the legislature deliberately removed the reverse onus that existed under predecessor legislation, making the earlier High Court analysis in Kirk v Industrial Relations Commission irrelevant on this point (at [50]-[57]).
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A prosecution charge alleging failure to adopt a safer configuration must specify the standard that was not met. The pleading that Eastern Basin failed to achieve a sufficiently low height-to-width ratio was found invalid because it did not stipulate what ratio was required (at [71]).
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Where a defendant assembles and delivers goods to an expert operator who bears exclusive contractual and regulatory responsibility for loading operations, the court may take into account that operator's expertise and its failure to identify or communicate a safety concern when assessing whether additional measures were reasonably practicable (at [125], [130], [133], [143]).
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Post-accident assessments by a WorkCover inspector and the employer's own safety personnel, unanimously concluding that operations could safely resume without the measure the prosecution contended for, were found to be relevant and fortifying evidence against a finding of reasonable practicability (at [144]).
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Sufficient proof of causation is necessary; the District Court found that without evidence establishing that the existing strapping was absent, inadequate or damaged at the relevant time, the prosecution could not demonstrate that the absence of additional strapping caused or contributed to the identified risks (at [80]-[92]).
Legislation and Cases Referenced
Legislation
- 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
- 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