South Port Fatality – Sentencing

Following a fatal accident that occurred at South Port’s facilities at the Port of Bluff, South Port New Zealand Limited has had a penalty imposed on it by the District Court totaling $175,000. This follows it pleading guilty to one charge under the previous Health and Safety in Employment Act.

Penalty Imposed

The penalty imposed by the District Court was based on an assessment by the District Court of the culpability of South Port being at the upper end of culpability in the medium band. As usual, the Court firstly dealt with the issue of reparation.

In that regard it made the following orders:

  • Reparation payable to the widow of the deceased – $110,000.00
  • Loss of Income to the Widow of the deceased – $20,000.00
  • Funeral expenses – $5,799.00
  • Reparation for emotional harm sustained by the two adult children of the deceased – $7,500.00

, 3D rendering, rough street sign collection

Fine

With the Court taking the view that the total overall financial penalty that should be imposed upon South Port was $175,000, the fine imposed on South Port was $22,989.00 thus leading to the total financial penalty of $175,000.

Facts

South Port New Zealand Limited operates at the Port of Bluff. Regular Port users undergo induction into the Port and once they are approved they receive a security card which enables them to access the Port. One of the authorised persons was a Mr McKenzie, whose company was engaged to hoist and lift a crayfish pot (coff).

Prior to the accident, fertiliser had spilt on Berth 8 of the Port whilst a vessel was unloading and loading superphosphate.

An initial sweep was carried out but there was residual fertiliser left. Further sweeping was to be undertaken but this was postponed for various reasons.

Two days before the accident on 1 December 2015, the General Manager of South Port drove onto Berth 8 to inspect it. His vehicle slid on residual fertiliser. He sent an email to the 10 Managers of the Port warning of the dangers of driving on Berth 8. The email advised that the area of the residual fertiliser was very slippery. A request was made to pass this information onto staff going into the area so that they could take care.

Between 1 December 2015 and 3 December 2015, no remedial action was taken and no warning signs were erected to identify the area as slippery or to warn that it should not be accessed.

On 3 December 2015, Mr McKenzie drove his truck onto Berth 8 to pick up a crayfish coff. In driving onto Berth 8 Mr McKenzie lost control of his truck and it slid over the edge of the wharf and entered into the water. It was estimated that the speed of the truck at the time was between 48 and 68 kmph an hour. Unfortunately Mr McKenzie was trapped in the driver’s side of the truck and died of drowning.

Traffic Management Plan

The Port’s Traffic Management Plan did not identify the hazard of slippery surfaces at the Port. South Port had no policy dealing with slippery surfaces at the Port.

Despite the warning given by Mr Cade no steps were taken to isolate the area affected nor were there any warnings given to visitors to the Port about the dangers of driving onto Berth 8.

Guilty Plea

South Port, after initially pleading not guilty, plead guilty to the one charge it faced. The charge against South Port was that it failed to take all practical steps to ensure that no action or inaction of any of its employees whilst at work in relation to the spill of superphosphate on Berth 8 harmed another person, namely, Mr McKenzie.

Factors of Failures by South Port that were Considered by the Court:

  1. Failure to identify and isolate the slippery surface and prevent access to the area.
  2. Failure to notify people of the hazard on Berth 8.
  3. Failure to have a Health and Safety Policy in place which required the isolation of spills prior to remediation and the diversion of traffic if necessary.
  4. Failure to train employees in hazard and risk assessment that would have enabled them to identify a hazard and implement the appropriate controls when they arose.

The Court took into account the fact that the spillage was not visible to the naked eye. The Court rejected an argument however that this hazard could not reasonably have been anticipated by South Port because its General Manager Cargo, Mr Cade had two days earlier experienced the hazard itself. The Court held that the slippery surface was obvious once Mr Cade became aware of it. It said that South Port should have cordoned off the area which would have prevented access. It held that the failure to have an appropriate policy in response to the warning that South Port received was a seriously aggravating feature.

Aggravating and Mitigating Factors

The Court held the following matters were mitigating factors:

(a) South Port’s co-operation with the investigation.

(b) Steps taken by South Port since the accident to establish a dedicated area for all inshore fishing activities.

(c) Modifications to the berth inspection process when work is undertaken on the berth which included a sign off by two senior personnel.

(d) Genuine remorse.

(e) The voluntary reparation already made.

(f) Attendance at restorative justice.

(g) A change in policies and procedures to prevent similar accidents.

(h) The offer to compensate the family travelling to the restorative justice meeting.

The discount awarded in relation to the mitigating factors was held to 30%.

Lesson

Don’t ever ignore a significant hazard once it has been drawn to your attention. Do something to address it. Do it promptly and don’t take too long. The case is also notable in that it was decided under the now repealed Health and Safety in Employment Act 1992. The recently enacted Health and Safety at Work Act 2015 places much higher duties of care for workplace safety. If the case had been decided under the new Act, it could have resulted in an even more severe outcome for South Port.

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