South Port to pay $185,000 in relation to death
South Port has been ordered to pay $185,000 in relation to the death of a man who drowned after his truck slid off a berth at the Bluff port.
Morrell McKenzie died on December 3, 2015, when the truck he was driving slid off the wharf at Berth 8 at South Port.
He had been contracted by a boat captain to move cray fish pots from his boat at the berth.
WorkSafe NZ charged South Port with failing to take all practicable steps to ensure that no action or inaction of any of its employees, while at work, harmed another person.
The company was sentenced by Judge Mark Callaghan in the Invercargill District Court on Thursday.
DeAnne Brabant, representing WorkSafe NZ, told the court super phosphate, known as SSP, was present on berth 8 days before McKenzie went there.
There had been unsuccessful attempts to clean the phosphate from the berth and after rain it had become slippery.
The general cargo manager of the port discovered this when he drove over it at about 10kmh and slid.
He then emailed managers of the port to alert them to the issue, she said.
But no barricade was put up, and nothing was done to stop people from entering the berth.
Brabant said an assumption was made by the port that because there was no scheduled work for berth 8, no other users would go there.
However, South Port allowed other people to use or visit the port after an induction, and they were issued with an access card, which McKenzie had.
Reports from police after the incident noted that the super phosphate spill was not clear to the naked eye, and estimated McKenzie would have been driving at a speed of between 48kmh and 68kmh.
McKenzie’s truck slid across the super phosphate, and entered the water. He was trapped in the driver’s seat and drowned.
A police officer who arrived at the scene reported having difficulty applying his brakes on the surface, and said he slid about 10m.
Brabant said the hazard was recognised by the port, but was not addressed in relation to other port users.
The port’s assumption that because there was not work scheduled at the berth, no one would be there, failed to recognise that someone could inadvertently go onto the berth, she said.
“[There was] no attempt to barricade … to signpost it.”
No one who had received the email from the general cargo manager recognised the danger and no one did anything about it, Brabant told the court.
“This is not blaming the port’s employees at all … responsibility lies with the port.”
Brabant said while speed was identified as a factor in McKenzie’s death, it only became an issue because of the failure of the port to address the slippery surface.
“[The] slippery surface combined with speed resulted in the death of Mr McKenzie,” she said.
“His death could have been avoided.”
Brabant told the court the company failed to isolate the area, to notify workers and visitors that the area was slippery, to ensure it had a health and safety policy relating to slippery surfaces, and to ensure employees were trained in hazard and risk management relating to slippery surfaces.
South Port’s lawyer Garth Gallaway formally apologised to the McKenzie family in his first statements in court.
South Port paid $25,000 to the family a week after the incident, and a further $50,000 when it entered a guilty plea to the charge, he said.
He also asked how the captain of the boat which McKenzie was to unload cray fish pots from could have been warned about the spill, when the captain had not notified South Port of his intention to work at berth 8, as per the company’s policy.
He acknowledged there were two factors in the incident, McKenzie’s speed, and the slipperiness of the surface.
Gallaway acknowledged that no amount of reparation paid to the family could ever make up for their loss.
He said there had been multiple attempts to clean up the spill prior to the incident, but that unfortunately the area had not been coned off.
No work was scheduled in the area, and the port was not notified of any other users intending to use the berth, as it should have been, Gallaway said.
While no victim impact statements were read in court, Judge Callaghan said they indicated the “extreme turmoil” the family went through.
McKenzie’s wife had suffered her own personal illness, which was ongoing, and was now the sole carer for their disabled son.
Callaghan quoted from McKenzie’s wife’s statement: “Morrell was my life and my soul. Now I merely exist,” and Callaghan said the quote “sums up the tenor of the victim impact statements”.
The judge noted that, in submissions, South Port pointed out that McKenzie was not an employee of the company, that the captain of the boat from which McKenzie was contracted to unload the crayfish pots should have notified South Port of the intention to undertake work at the berth, and that the crayfish pot transfers usually happened at a different location.
Judge Callaghan also said of South Port’s submissions: “they say if the truck had not been speeding, the crash report indicates the truck may not have left the wharf.”
He ordered the company to pay McKenzie’s wife $110,000 emotional harm reparation, $5799 for funeral expenses, and $20,000 in loss of income, which included consideration for their son.
He also ordered it pay $7500 emotional harm reparation and $606 travel reimbursement to each of McKenzie’s two daughters.
He also fined the company $32,989.
The maximum penalty for the charge is a fine of $250,000.
Speaking after the hearing, South Port chief executive Mark O’Connor said by pleading guilty, South Port acknowledged its role in the “tragic event”, and that the business could have prevented the “fatal accident”.
“The learnings from the accident have been applied within our operation,” he said.
“Our sincere apologies and condolences have been expressed to the McKenzie family for their significant loss.”
Summary of Causes:
- The slippery berth surface had been identified days before the incident
- This hazard had been reported to management – but no one followed up
- No barricades were erected to stop people entering the area
- Although no one was scheduled to work on the berth, other people were allowed to use the port after an induction and were issued an access card with access to that berth
- No one with access cards were alerted to the new hazard
- The port had no policy or procedure for controlling slippery surfaces
- No workers were trained on hazard/risk management in regards to slippery surfaces
- The captain working on that berth was not authorised to be there and had not notified the port of his intended work or that of his contractor
Think about how you are identifying hazards and then controlling them.
- Are you ensuring that hazards are controlled immediately (even if it is a temporary measure)?
- Would your workers report new hazards to you?
- Would you get onto controlling them straightaway?
- Have you trained your workers on how to manage the various hazards in your workplace?
- Do you ensure that everyone else with access to your site is aware of new hazards?
- Do your contractors follow your procedures?