The crashed straddle crane which killed Laboom Dyer at Ports of Auckland container terminal in August 2018. Photo / Greg Bowker
The crashed straddle crane which killed Laboom Dyer at Ports of Auckland container terminal in August 2018. Photo / Greg Bowker
Ports of Auckland has been fined $540,000 after a "systemic failure" to maintain and monitor a culture of compliance, which included operating a bonus scheme to reward workers for productivity at the expense of safety.
The Auckland Council-owned organisation was prosecuted by WorkSafe after the death of one of its drivers in 2018.
It is one of three deaths connected to the port in as many years, which has led to Auckland Mayor Phil Goff announcing an independent review of health and safety at the company.
Today, in the Auckland District Court, Judge Evangelos Thomas sentenced Ports of Auckland for what he described as a "systemic failure".
During the early hours of August 27, 2018 a straddle truck - a huge freight-carrying vehicle capable of lifting and transporting shipping containers - tipped over.
Trapped and badly injured on Fergusson Wharf was young driver Laboom Midnight Dyer, who had worked for the ports since 2015 and been a straddle driver since 2016.
The 23-year-old was taken to Auckland Hospital in a critical condition and died from his injuries on September 2.
The port's container terminal was temporarily closed for an investigation and ultimately WorkSafe laid charges in 2019.
In August this year, the Herald reported the port pleaded guilty to one charge under the Health and Safety at Work Act 2015.
The charge relates to primary duty of care and failing to comply with duty that exposes an individual to risk of death or serious injury or serious illness. A charge of reckless conduct was dismissed by consent.
Laboom Dyer's family and friends were in court for today's sentencing. Photo / Supplied
At the start of today's hearing, Judge Thomas addressed Dyer's family and friends who included his brother and partner.
"I want to acknowledge how sorry we are for what you have lost, I also want to acknowledge how long it has taken to arrive at this day," the judge said.
"Two years is far too long for anyone to have to wait.
"We honour and remember Laboom Dyer today and we always will."
Judge Thomas awarded $136,000 in reparation to Dyer's family, including $80,000 to his son.
"Reparation is in some ways a very unfair word, it is a token really of what they have lost," Judge Thomas said.
WorkSafe's prosecutor Barbarella McCarthy said Ports of Auckland had failed in its training of straddle drivers, particularly when taking a turn at speed and the "tip alarm" was activated.
Some of the straddle drivers did not pay attention to the tip alarm, she told the court, and there was an inaccurate understanding of when the tip alarm sounded, the straddle would automatically apply its brakes.
There was also a productivity "bonus system" to reward straddle drivers for a high "box rate" when moving containers.
Dyer had a high tip alarm rate but consistently received his bonuses, the court heard.
Sitting in the straddle cab more than 10m above the ground on the night he died, Dyer had also been using a mobile phone and was not wearing his seatbelt when the crane crashed.
But McCarthy said the fact he was able to operate in such a way was "indicative of the failure of the ports to monitor safety requirements".
Judge Evangelos Thomas presided over the sentencing hearing today. Photo / Michael Craig
The port's lawyer, John Billington QC said the victim impact statements of Dyer's family were moving and dignified.
He said the port's lack of ongoing supervision and training were key factors in the incident.
"The port accepts full responsibility for this tragedy," Billington said.
Judge Thomas said Ports of Auckland's offending was aggravated by having previous knowledge of tipping, and concerns in the industry about the bonus scheme.
The port had sought to reduce tip alarm activations with a training program, however, despite success, this was ceased and on the night of Dyer's death tip alarms were back to earlier levels.
Judge Thomas ultimately reached a fine of $540,000 for the company.
In September, Goff announced an independent review of health and safety at Ports of Auckland after the death of another worker, father-of-seven Palaamo Kalati.
Auckland Council later appointed Construction Health and Safety New Zealand chair Roger McRae to lead the review.
"With three fatalities [linked to the] port in recent years, and a number of other serious injuries, as its shareholder, Auckland Council wants to ensure that Ports of Auckland's health and safety culture and the systems it operates better meet its goal of a zero harm workplace. A safe working environment is integral to the operation of a successful business," Goff said in October.
Auckland Mayor Phil Goff announced an independent review of health and safety at Ports of Auckland following another worker's death this year. Photo / Michael Craig
The scope of the review will examine factors including culture and engagement, resourcing, training methods, supervision, governance and leadership, and the adequacy of incident reporting, investigation, and implementation of suggested improvements.
An interim report was expected by Christmas and the final report would follow relatively early in the new year, Goff said.
The cost of the review will be met by Ports of Auckland.
In November, Ports of Auckland announced it was undertaking an organisational review, which includes an investigation into the incident which killed Kalati.
A company-wide employee engagement survey and a joint study with the Maritime Union of New Zealand on worker engagement and the effectiveness of health and safety committees is also part of the review.
The port also supported Auckland Council's independent review.
Ports of Auckland CEO Tony Gibson. Photo / File
The latest court proceeding also comes after Ports of Auckland was fined $424,000 in July for breaching harbour speed limits following a "tragic accident" involving one of its boats.
Leslie Gelberger, a Westlake Girls' High School teacher, died in April 2017 after being struck by a ports pilot boat while swimming off Narrow Neck Beach and Cheltenham Beach.
The speeding breaches were described in court as a "systemic failure" and involved continuous speeding breaches by Ports of Auckland-operated vessels on 99 per cent of voyages between April 2017 and January 2018.
Gelberger's wife Laura McLeod told the Herald of the relief she felt that the court process had finally ended but was disappointed it took years of legal battle before the company finally took responsibility for her husband's death.
