Skip to Content, Skip to Navigation
Advertisement

Safeguard OSH Solutions - Thomson Reuters

Safeguard OSH Solutions - Thomson Reuters



OSH Tracker

Department of Labour v Wallace Investments Ltd (DC, 28/05/08)

OSH Tracker

Defendant:
Wallace Investments Ltd
An employer can only be expected to do so much to ensure that staff follow the safety advice they are given, a district court judge has ruled. 
Dismissing a s6 charge against stevedoring company Wallace Investments Ltd, Judge Fred McElrea said the company could not be held liable for a worker’s fall from a shipping container because it was neither reasonable nor possible to ensure employees followed the safety procedures they had been taught ( Auckland DC, May 28). 
The prosecution arose out of an incident at Auckland’s Freyberg Wharf in July 2007, when a container tipped as a worker walked across its upper surface, throwing him 2.6m to the ground. He suffered a broken ankle and sprained leg. 
One of the container’s base-mounted twist locks – a mechanism that locks stacked containers together to prevent movement – was stuck, raising one corner 100mm from the ground. As the worker crossed the top of the container to remove lifting wires, it tilted and he fell. 
The judge said the company’s director had developed posters and held an all-staff briefing to warn about unstable containers and explain how to deal with them. 
“Putting all the evidence together, my finding is that the risk or hazard was appreciated and clear steps were taken to deal with it. 
“It is clear to me that all practicable steps were in fact taken … and this charge must be dismissed.” 
Industry:
Transport and Storage
Sub-Industry:
Services to Transport
Risk:
Fall from height
Harm:
Injury
Penalty Amount:
$0.00
Reparation Amount:
$0.00
Appeared in Safeguard issue 113

Judgment Text

ORAL JUDGMENT OF JUDGE FWM McELREA 
Judge FWM McElrea
The charge and brief facts 
[1]
The issue in this case is whether the defendant company, Wallace Investments Limited, took all reasonable practical steps to ensure the safety of an employee while at work. The defendant faces one charge of failing to do that. 
[2]
The particulars of the charge are that, being an employer, the defendant failed on 28 July 2007 to take all practicable steps at the Freyberg Wharf, Ports of Auckland, to ensure the safety of an employee, namely Richard Tairua, while at work, in that it failed to take all practicable steps to ensure that he was not exposed to the risk of a fall while removing hooks from the top of a container. 
[3]
I am indebted to Mrs Carr for opening submissions which set out the brief facts in a clear way and I propose to read from those, with minor modifications: 
“The charge arises out of an incident that occurred on the day in question when Mr Tairua suffered a fractured right leg and sprained left leg when he fell 2.6 metres from the top of a shipping container at Freyberg Wharf in Auckland. 
The defendant operates a company that carries out stevedoring operations at the Ports of Auckland. It employs Mr Tairua as a stevedore and at the time he was working with another stevedore on containers which had been discharged from the container ship, Southern Moana. [It had, I gather, recently returned from the Pacific Islands and had a load of empty containers]. 
Mr Tairua and another stevedore, Paul Warren, and a crane operator and stevedore, Jason Slade, were working together to undo hooks and twist locks or cones from containers, sometimes called boxes, being discharged from the ship. One of the twist locks could not be removed from the base of the container. The container was landed and one twist lock was in a bottom corner of the container. 
Mr Tairua was then lifted up to the top of the container in a safety cage and stepped on to the container. He did this in order to remove the four hooks and wires from the top corners of the container. He had removed three of them and was attempting to remove the last hook, when the container tilted, due to being unstable because of the cone still being in the base. Mr Tairua lost his balance and fell. ”
The hazard in this case 
[4]
I have read that as if it were a summary of facts but I need to explain a little bit more about the procedures that are involved. Basically there are two ways of lifting a container off a ship on to the wharf. One is to use a metal frame, called a spreader, which grips the top of the container and enables it to be lifted and lowered on to the dock. The other is to attach wires or chains to the four corners of the container by means of hooks and to then lift the container in that way. That is the method used on this occasion. 
[5]
The company uses both methods, I gather, at different times and, although there was initially a suggestion that using spreaders would have been a practicable step to take, the case proceeded on the basis that spreaders, and chains or wire with hooks, are alternative methods and there are appropriate procedures to be taken for each method. I therefore do not have to make any findings as to the possible use of spreaders. 
[6]
I need to explain further that a twist lock is a mechanism that fits between the bottom corner of a container and the top corner of a container beneath it, locking them together so that as the ship rolls at sea the containers remain stable. These locks appear to operate by snapping into an aperture at the relevant corners of the two containers and being able to be undone by moving a lever sideways, that being the “twist” part of the lock. The desirable course is to remove the twist locks from the containers as they separated on the ship and prior to being lowered on to the dock. 
[7]
If one or more twist locks remain in the bottom of a container it will protrude approximately 100mm below the relevant corner of the container and therefore means that the container is not able to sit flat on the ground. When either one or three corners have twist locks in them, this creates a potentially unstable situation. It can be imagined as a heavy book of a rectangular shape sitting on a flat surface, and a matchbox or other small object is placed under one corner lifting that corner off the ground. The evidence tends to suggest that what happens is that both corners at that end of the container are then off the ground, but one of them is held up by the snap lock and the other is approximately 10 centimetres in the air. 
[8]
The risk or hazard involved is that the weight of a stevedore standing on the unsupported corner can be enough to tip the container in the direction of that corner. If that occurs, the worker is then in an unstable situation and that is exactly what happened on this occasion. Mr Tairua succeeded in removing three of the four hooks; he then moved to the fourth corner of the container, which I infer is the one which was unsupported. When standing in that corner he was taken by surprise when the container tipped forward, what could only have been 10 centimetres or so, and he must have lost his balance and fallen to the ground. 
Another possible cause of the accident 
[9]
There is another issue here which is, in my view, relevant, and that is that he was not following the directions of the employer in terms of his body stance. He should have, as he approached the corner, knelt on one knee with the other foot on the ground, in order to position himself to remove the hook. It may well be that if he had been in that position at the time the container tilted that he would not have lost his balance. 
[10]
That, however, is a matter of speculation. I simply say that if that precaution had been taken this accident might have been avoided. It would not, however, have avoided the risk to an employee and does not provide a defence to the charge if the employer has failed to take all reasonable steps to ensure the safety of its employees. It does not require an accident for this offence to be committed. 
The Law 
[11]
The legal position is also set out very helpfully in Mrs Carr's submissions, and I am indebted to her for the way in which that has been done. I now quote from those submissions verbatim: 
“6
The Act came into force on 1 April 1993 and reformed the law relating to the health and safety of employers and other people at work or affected by the work of other people. In relation to the proper approach to the Act, the Court of Appeal in Central Cranes Ltd v Department of Labour [1997] ERNZ 520Has Cases Citing which are not known to be negative[Green]  said at page 527: 
‘It is clear that the Act adopts a preventative approach to maintaining and promoting health and safety in the workplace. Its principal object is to provide for the prevention of harm. To achieve this object employers are required to promote safety in the workplace and both employers and others associated with the workplace are subject to the duty to take all practicable steps to ensure such safety or ensure that employees and others are not harmed …  
… The Act does not then adopt a prescriptive approach to the duties of those made responsible for safety in the workplace. It provides a comprehensive set of guidelines but leaves detail of acceptance practices to be worked out and implemented by regulations and codes of practice within the various industries. ’”
7
The Act was subject to substantial amendment by the Health and Safety in Employment Amendment Act in 2002. As this incident occurred post May 2003, the law as amended applies. Section 6 of the Act remains unchanged. 
8
In Department of Labour v de Spa and Co Ltd [1994] 1 ERNZ 339,341 to 342Has Cases Citing which are not known to be negative[Green]  the High Court stated: 
‘It is obvious from this legislative scheme that Parliament has deliberately placed on employers a positive duty to seek out hazards in order to determine whether they are significant and if they are, to eliminate them, isolate them or minimise them as the case may be. What is important is that the Act casts on employers these positive duties. ’”
9
In the words of Ellis J in the High Court decision of Tranz Rail Ltd v Department of Labour [1997] ERNZ 316Has Litigation History which is not known to be negative[Blue]  at page 320: 
‘The obligations on an employer are uncompromising and onerous. An employer must be proactive and anticipate harm and take all practicable steps to minimise it. ’”
10
In respect of a prosecution under section 6 it is not necessary to show that the failure caused actual harm (see observations of Cartwright J in Department of Labour v Andy Kay, High Court at Auckland, 18/12/97). 
11
The issue in this case is whether the Defendant took all practicable steps in respect of the charge. ‘All practicable steps’: is defined in section 2A of the Act as: 
‘(1)
… in relation to achieving any result in any circumstances, means all steps to achieve the result that it is reasonably practicable to take in the circumstances, having regard to — 
(a)
The nature and severity of the harm that may be suffered if the result is not achieved; and 
(b)
The current state of knowledge about the likelihood that harm of that nature and severity will be suffered if the result is not achieved; and 
(c)
The current state of knowledge about harm of that nature; and 
(d)
The current state of knowledge about the means available to achieve the result, and about the likely efficacy of each; and 
(e)
The availability and cost of each of those means. ’”
12
The Act does not require an employer to provide complete protection but rather to take all reasonably practicable steps to guard against potential hazards. As to what ‘practicable’ means Baragwanath J in Department of Labour v Solid Timber Building Systems Limited (unreported, High Court, Rotorua, 7 November 2003, Baragwanath J) quoted a House of Lords decision, Marshall v Gotham K Ltd [1954] All ER 937, Lord Reid said at 942, between lines f and g: 
‘I think it is enough to say that, if a precaution is practicable it must be taken unless on the whole circumstances that would be unreasonable. And as men's lives may be at stake it should not lightly be held that to take a practicable precaution is unreasonable. ’”
13.
If the informant proves that one practicable step was not taken by the defendant, the offence has been proved as there is a requirement for the defendant to take all practical steps and failure to take one step that was reasonably practical means the defendant has breached the Act. 
14.
The Act does not require an employer to provide complete protection, but rather to take all reasonable steps to guard against potential hazards. The question of what is practicable is a matter of fact and degree in each particular case but is not a counsel of hindsight of perfection. (Buchanan's Foundry Ltd v Department of Labour [1996] 1 ERNZ 333 (HC)Has partially negative history or cases citing, but has not been reversed or overruled[Yellow] , at page 337, line 3). The question of what is practicable is a matter of fact and degree in each particular case (Central Cranes Limited v Department of Labour [1997] ERNZ 520 (CA)Has Cases Citing which are not known to be negative[Green] , at page 528) but it is not a counsel of hindsight of perfection (Buchanan's Foundry supra at page 342). 
15.
Pursuant to section 53 of the Act the offence is one of strict liability. The onus is on the Informant to prove the charge beyond reasonable doubt. The Informant is not required to prove intention on the part of the Defendant. However, if the Defendant decides to call evidence the defence of total absence of fault is available to it. (Civil Aviation Department v MacKenzie [1983] NZLR 78 (CA)Has partially negative history or cases citing, but has not been reversed or overruled[Yellow] ). ”
[12]
The submissions then go on to refer to the issue of a defence of total absence of fault in the MacKenzie sense, and an alternative approach which is to consider that defence in the assessment of the practicability of a suggested step. Hansen J in Buchanans Foundry Ltd referred to this approach at page 342 lines 17-20: 
“The requirement to take all reasonably practicable steps is not a counsel of hindsight perfection. It involves, as noted earlier, considerations of ‘due diligence’, a ‘total of absence of fault’, of doing what a ‘reasonable man’ would have done under the circumstances, or acting with ‘all reasonable care.’ ”
[13]
I agree with the submission then made by Mrs Carr that whichever approach is taken, the result is the same because the focus for the Court is on the practicability of the step. Mr David took no issue with any of the legal submissions advanced by Mrs Carr. 
[14]
The submissions then go on to deal with the fact that more than one person can have a duty under the Act and the fact that another person has a responsibility does not take away or diminish the responsibility of the second person. That is clear enough on the authorities. 
[15]
In the decision of the Court of Appeal in Linework Ltd v Department of Labour [2001] 2 NZLR 639 (CA)Has Litigation History which is not known to be negative[Blue]  the Court rejected the submission that a defendant company was not responsible for the act or omissions of a foreman. The Court of Appeal said that the foreman's acts or omissions were properly attributed to the company and it is the submission of Mrs Carr that, in this instance, the acts and omissions of any foreman or supervisor are properly attributable to the defendant company. 
The question of supervision 
[16]
I pause at that point to deal with that issue because, although that submission was made, the question of supervision did not feature in the evidence. 
[17]
The evidence establishes that the company is administered by its sole director, Mr Van Aalst, who seems to be an incredibly hard-working man. He is on the job at most times, working 70 or 80 hours a week - sometimes more - and taking a personal responsibility for the way matters are conducted. His approach is that all employees need to be responsible for themselves and for each other, and that each should be taking that approach. In other words he does not apply a hierarchical structure, but rather encourages all to be involved in making decisions about how matters will be done. He encourages his staff to raise concerns about safety matters and the evidence demonstrated to me that he does that in a way that makes them feel that they are free to raise concerns and make suggestions. 
[18]
There was a foreman working with this particular gang at the time. There was no person beneath him with authority, such as a leading hand, which is perhaps not surprising given that there were only a few men working on the container. At the time that Mr Tairua fell, the foreman was walking away from this particular container to another nearby where the stevedores were having trouble with breaking wires. He therefore was not aware that the container had been lowered on to the ground with a snap lock still in position,and he did not see Mr Tairua fall from the container. 
[19]
There is no suggestion in the way the informant has conducted the case that there was some failure of supervision. The evidence relates solely to the question of the steps taken to make sure that employees understood and followed directions. 
The informant's case 
[20]
This leads me to the informant's case and the statement of Mrs Carr in her opening submissions that the department's position is that the defendant failed to take all practicable steps to ensure Mr Tairua's safety. She particularises that by submitting that to address the risk of a fall from the top of an unstable container when using lifting wires and hooks, the defendant should have taken the following practicable steps: 
(a)
To ensure that all employees in the task were instructed not to get on top of unstable containers. 
(b)
(i)
To ensure that all twist locks were removed prior to the landing of containers; or 
(ii)
To ensure that all twist locks were removed prior to the landing of containers; or 
(iii)
To level the container using chocks or gluts to make it stable. 
(c)
Ensure its employees were aware of, and followed, these procedures. 
That defines the issues the Court has to decide. 
Defence position 
[21]
The defence position is that all reasonable steps were taken in this case and the informant has failed to prove to the contrary. Evidence was called for the defence, but even on the prosecution evidence Mr David was able to submit that there was much of assistance to the defence. 
Steps taken by defendant 
[22]
I propose to state briefly the steps that the company claims to have taken and then refer to the evidence about that. I need to mention that there had been another fall of a stevedore employed by the defendant from a container on 9 January 2007, approximately six month's prior to this incident. That employee was Mr Warbrick. As a result of that fall Mr Van Aalst realised that there was a significant hazard that he had not identified and taken steps to deal with. He reached that conclusion, I imagine, himself but certainly would have reached it as a result of discussions with a safety inspector from the Department of Labour. Those discussions occurred in mid-March 2007 and as a result of that, Mr Van Aalst said that he prepared certain materials to show to his employees and he arranged certain briefings for them. 
[23]
The exhibits produced include, first of all, exhibit 2, which is a document headed up in red type on a yellow background, NOTICE TO ALL STAFF. There is then underneath that heading a photograph of one or two containers being lowered by hooks and wires, with red circles around the position of the cones. Under the photograph in bold type are the words “Remove all cones prior to landing on the wharf”. Beneath that is a box containing the following information. 
“Please ensure that when placing containers on wharf that — 
1.
Remove all twist lock cones prior to landing containers on wharf. 
2.
If twist locks are still present when containers are landed, instruct Deckman / Foreman to take a light float [meaning that the crane driver holds the container about a metre or so in the air] & remove. 
3.
If containers are not level, rectify prior to placing personnel on top of containers to remove / place bolster hook. 
4.
If unsure please consult Deckman / Foreman/supervisor. 
5.
Use extreme caution at all times when working on top of containers. ”
[24]
Also produced was exhibit B which is a document with a heading in large capitals — FALL HAZARD. Underneath that are two photographs of a stevedore atop a container, about to remove a hook from the corner of the container. The first photograph shows him leaning over, but with both feet on the container and there is a big “X” marked in the corner of that photograph and the word “wrong” underneath it. 
[25]
The next photograph shows the worker kneeling on his right knee with his left foot out of sight (but presumably on the top of the container) and there is a big tick against that, and the word “right” underneath. 
[26]
Beneath those two photographs is a box containing advice when placing or removing bolster hooks from the top of a container. This covers the issue of grease or water on the top of the container. It requires that containers on the wharf are level and stable and if not level (which I take to mean not on a flat surface) then one person only is allowed on the top of the container. There is then advice given about kneeling on the container and it finishes up with advice to use extreme caution. 
[27]
Exhibit 2 was one of two documents attached to an email to a departmental officer stating that if he had any comments on that document and another, then the company would be concerned to know about that. No comments were received back. 
[28]
Mr Van Aalst's evidence is that he put both of those notices with pictures on them on a safety notice board. Indeed, if I understand the evidence correctly, they may have been on more than one board but I am not sure about that. The other document that had been sent by email was not, I gather, put up for staff to read but was used as part of a briefing session. 
[29]
The defendant's position is that not only were those notices provided but the men were briefed as to what to do. In particular, they were briefed about the dangers of working on unstable containers which included containers where a twist lock had not been removed. They were advised as to ways in which this could be handled. In particular they were advised that the container should be wedged or blocked so that, I gather, the corner that was in the air was not able to drop down. 
[30]
If this was not practicable for any reason such as the containers being closely positioned one beside another, then the hooks were to be removed not by a worker getting on top of the container but by him being in a personnel cage on a forkhoist and lifted up to do the job from the forkhoist, one corner at a time. 
[31]
That is the general position and the argument is that, having fully briefed workers to that effect, the company had taken all reasonable steps. 
[32]
The evidence, as it developed, involved the testing of the proposition that all workers had been briefed to that effect and at this point I propose to say that the sub-issues there are, first of all, whether the briefings were held and whether Mr Tairua was present at any of them; secondly, whether all staff were intended to be present; and thirdly, the content of the briefings. 
[33]
I accept that there is some conflict of evidence even from the prosecution witnesses in this regard and I refer now briefly to what each said. 
Mr Tairua's evidence 
[34]
Mr Tairua, the injured worker, has worked with the defendant since September 2006. He said he did not remember getting instructions not to get on to unstable containers. That he was not told to block them or wedge them to make them stable. He claimed that he had received no instructions on the safest way to remove the hooks and was not told what to do if the twist locks would not come out. But in cross-examination he accepted that he saw exhibit 2, the notice to all staff on the noticeboard, although he said he did not read it. He says he was present on the two days when Mr Van Aalst said there were briefings to staff, namely 23 and 25 March 2007, but he does not recollect the briefings. I stress that word “recollect” because it did not seem to me that he was saying categorically that they had not occurred. 
[35]
He said that he had seen the exhibit B, the one about the fall hazard and the need to kneel. He realised that the photographs were showing a right way and a wrong way of doing that job. He did not read the text below but in my view the pictures were clear enough and he did not follow them. 
Mr Slade's evidence 
[36]
The next witness was John Slade who had been with the defendant company for two years. He was a crane operator on the day. In evidence-in-chief he said that there was no instruction on what you do if you cannot get twist locks out but he qualified that by saying he had been told by the employer that the crane operator must leave the container hanging until you get it out. He agreed that he seen and read exhibit 2 before this incident. 
[37]
In cross-examination he said he could remember Mr Van Aalst giving a briefing after the Warbrick incident and going through this notice, exhibit 2. He explained that Mr Van Aalst had said that they should use what he called “dunnage”, which refers to pieces of wood used to support cargo and equipment, much of which lies around or is available when ships are being unloaded. He could only recall one briefing but he added that Mr Van Aalst comes around reminding staff of this sort of this thing “all the time”
Mr Ahomiro's evidence 
[38]
The third witness was Frederick Ahomiro. He was foreman on the day. He has been a stevedore for 20 years and he is the man who was walking in another direction at the time this accident occurred. He could recall the briefings but not what was said. He was asked what would usually be done if you could not free a twist lock and he said you would use wedges to keep it stable. He had seen exhibit 2, the notice to all staff. He had also seen the fall hazard notice, probably before the incident. 
[39]
He agreed in cross-examination that Mr Van Aalst probably gave a briefing as a result of the Warbrick incident, although he cannot remember it himself. He says he was told, probably a couple of times while working at this company, that if this problem occurs you “do not hop on top”, that you “chock it up” or you go around the edges in a cage. He said that he remembers the question of chocks being brought up at a car boat briefing, which could well be the one that occurred on 25 March. 
Mr Warren's evidence 
[40]
Firstly, Mr Paul Warren has been in the industry 38 years. He was with the defendant from only February that year. He drove the forklift on this day but he did not often work with containers because he also worked for the company on cruise liners. He said that he had heard that procedures had been put in place after the Warbrick incident, although he claimed not to have been told about them himself. He said in evidence-in-chief that he had not been told what to do if this problem occurred. However, he also agreed that Mr Aalst was nearly always present and was “very good about giving warnings”
[41]
He confirmed what many others referred to about the holding of “tool box meetings” if there was a problem or some new procedure to be explained. Mr Warren said he did not see exhibit 2, the notice to all staff, but added that he usually did not look at that safety notice board. He confirmed that if there was no foreman present, then all of the team were responsible for safety. 
Mr Van Aalst's evidence 
[42]
The prosecution evidence is somewhat equivocal but the defence called evidence which, in my view, puts the factual position beyond a reasonable doubt. Mr Van Aalst gave evidence of his 20 year's experience in the stevedoring industry, including 10 years as sole director of this company of his. He said he has 63 employees and he prefers permanent employees, partly because of safety issues. He confirmed that the company has no convictions. He talked about tool box meetings and the way in which they were used to bring matters to the attention of staff, and he said that if there was any particular hazard then they tended to produce notices and put them up on a noticeboard, but he added that it is obviously not enough just to put up a notice and that there would be briefing given so that staff were told orally about what was required. He said there was only one person on his staff who could not read and he took special care in the way in which he placed that worker for particular jobs. 
[43]
Mr Van Aalst regarded the 9 January incident regarding Warbrick as their first serious accident and he understood that he had failed to identify a significant hazard, which was of particular concern to him. He said that steps were immediately put in place that were intended to isolate and remove that risk. After discussion with the inspector from the Department, exhibits B, 2 and 3 were produced and the two notices were put up on the boards. 
[44]
His evidence is that he arranged briefings for staff on the next occasion when they were going to be performing the same task, that is unloading containers using the hook and wire method. That, he said, was when a ship came in on 23 March, which he thought was a few days after, but may have been perhaps a week after, his meetings and the email exchange referred to. 
[45]
He arranged for a supervisor, a Mr Abraham, now living in Australia, to give a briefing to the shift commencing at midnight (or a minute after midnight) on 23 March. He, Mr Van Aalst, gave the briefing for the much larger body of people who started at 7.30 a.m. that day. The briefing was repeated on 25 March because Mr Van Aalst said there was a very large number of staff present on that day and he wanted the briefing to reach the maximum number of people. (That particular aspect was confirmed by another witness as I will mention in a moment). 
[46]
M Van Aast's evidence was that at the briefing he ran through the various procedures to be followed: first of all, ensuring, if possible, that the twist locks were taken off on the ship and did not come down with the container. Secondly, if there were any still on the container they should be removed on the wharf while the container was, I infer, still in the air, if that was safe to do. If not, and if the container had to be landed with a twist lock in it, then his instruction was to stabilise the box with chocks of wood, or wedges which were kept in gear boxes at the site - or, if none was immediately available, then using dunnage which was always available. Finally if stabilising the box was not possible in that way, then the employees should use the personnel cage to go around the corners and remove the hooks from the cage. I gather that that is an operation that is not done with the employee remaining in the cage because there is a risk of falling. The hoist is taken up and down at each corner. 
[47]
His evidence was that this briefing probably took about five minutes and he referred to the notices that had been put up on the board. He also said that he would have given reminders subsequently to his staff, as he often did - general reminders at different times, where he would say things like “Remember about how you stabilise the boxes (or the need to stabilise the boxes)”, and so on. 
Mr Bennett's evidence 
[48]
The second witness for the defence was Mr Nicholas Bennett. He has been a stevedore for eight years, of which about half has been spent working with the defendant company. He has a clear memory of a meeting with a large number of people present - he thought it would have been virtually all the staff - and therefore he is inclined to think it probably was on the day when a car boat was in because, I gather, that sort of boat takes a full turn out to deal with. 

From OSH Tracker

Table of Contents