Health and safety special report trapped in confined space

Iakopo Sagote and James Oliver

Worker: “I thought I was going to die”

“I thought I was going to die in toxic ship’s hold, Napier port worker tells court.” Hawkes Bay Today ran this banner headline on 17 January 2022. If it wasn’t for the reporting from Ric Stevens, funded by the Public Interest Journalism Fund, the public wouldn’t have known about this case.

I decided to go up to Napier District Court to sit in on day one of the hearing brought by Maritime New Zealand who was prosecuting the company under the Health and Safety at Work Act. I had to ask permission to attend because of COVID restrictions. But I did manage to talk with some of the workers while I was there. We heard evidence from Kopo Sagote and James Oliver. I managed to obtain the caption summary from the court, which was very helpful.

Iakopo Sagote was overcome by fumes in the hold of a ship berthed at Napier Port on 30 April 2018. He is called Kopo by his work mates. The ship’s hold had become oxygen depleted because of fumes from the logs in the ship’s hold. Kopo’s job was to work a digger in the hold to stack the logs once they are lowered into the hold from the wharf cranes. The company uses diggers to pack the logs tightly into the hold. Once the holds are full, the holds are closed with hatch covers, and logs continue to be stacked on the deck above the hold.

Confined space

Logs were already in the hold when the ship arrived in Napier. They had been loaded in Gisborne. The hatches had been closed, making the hold an air tight container. Logs decompose in the hold, sucking up oxygen, producing carbon monoxide. Let’s call it a confined space, and we all know that working in confined spaces carries risk, especially from toxic fumes and oxygen insufficiency.

There was an informal arrangement that ship’s crew would open the hatches, as they come into port, and before the vessel comes into the berth, in order to air out the hold for 30 minutes before workers enter the hold to load and stack the logs. But there was no formal system of communication between the ship’s crew and the port workers about when the hatches were opened (if they had been at all). Unfortunately, according to Maritime New Zealand (the regulator for port safety) this 30 minute “rule” was not widely known. In any event, the hatch covers was not opened by the crew 30 minutes prior.

The Maritime New Zealand investigation found out that the hatch covers were opened about 15 minutes before Kopo climbed into the hold. The company did not have any equipment to monitor oxygen levels in the hold, before a worker enters the hold. The company policy was for the workers to smell the air and look into the hold and use their common sense. They were expected to carry out this sensory check from the deck above the hold. I thought, this is a rough and ready way to check for toxic fumes.

The digger had been lowered into the hold by a crane, Kopo had climbed down the ladder into the hold, but immediately felt dizzy and weak because of the fumes and oxygen depletion in the hold. Kopo knew he couldn’t climb back up the 12 metre ladder out of the hold. He managed to crawl to the digger over the logs and climb inside the cab of the digger, he closed the door. He tried to start the digger but he fumbled. The radio only works when the digger’s engine is on. He could not get the digger started, and therefore could not access the radio channel to call for help. I asked him over lunch, he had no personal alarm to signal his distress. He fell unconscious in the digger.

‘He thought of his family’

He told me that as he passed out he thought of his family, and how they would manage without him. He thought he would die. He has three children. His partner sat with him in the court as he gave evidence. His attempts to get the digger started repeatedly caused smoke to fill the hold.

The young foreman, James, all of 19 years old, saw smoke coming out the hold, he ran up the ship’s gangway, and looked into the hold, and saw it was full of smoke. He couldn’t see the digger or Kopo so he called out, but got no response. He climbed down into the hold. He managed to get to the digger, but couldn’t open the door to rescue Kopo, and then he too passed out.

A third port worker Luke, was sent into the hold in a paint cage, lifted down by crane. He too was temporarily overcome but just managed to signal to the crane driver to pull him out of the hold. Then, two other port workers, Jordan and Christian, were lowered into the hold in the paint cage. This time they successfully rescued James by putting him into the paint cage which was raised and he was laid on the deck of the ship.

They (along with Luke) then attempted the rescue of Kopo. Their plan was to lift Kopo out of the hold while he remained inside the digger. Luke succeeded in hooking the digger to the crane hook, but before the lift was done, Jordan was overcome and fell unconscious on top of the digger. The digger was lifted out (with Jordan on top of the digger and Kopo inside the digger) and it was placed on the wharf.

Once out of the hold, the three unconscious port workers – Kopo, Jordan, James – regained consciousness. Hawkes Bay Today reported that James said that once he was out of the hold and found out that Kopo was alive, “the first thing I wanted to do was hug Kopo because he was alive.” Cole, was on deck at the time, although he didn’t lose consciousness he felt unwell. Six workers were affected by the fumes.

Maritime New Zealand said Kopo was in the hold for 25 minutes. They told the court that Kopo could not get the incident out of his head, and that he was hurt physically and emotionally.

Kopo who was unconscious the longest, told me he had a week off on paid leave, but on his second week he had to take annual leave. Kopo still is affected with headaches and fatigue 4 years later. I enquired, and he said to me that he was never told that he might be eligible for ACC cover. Although he told me he was in a union, it was neither of the two waterfront unions MUNZ or RMTU, that I am familiar with.

Prosecution

Maritime New Zealand is prosecuting the company under the Health and Safety at Work Act for exposing the workers to the risk of death or serious injury. The company pleaded not guilty.

The company had no procedures in place if a port worker is overcome in the hold of a ship, or for extraction of a person in the hold of a ship, and no procedure if someone is incapacitated in the hold. The company policy said: “anyone who feels they are being affected by fumes are to move to fresh air ASAP and report the incident to their supervisor.” There was no training, said Maritime New Zealand, about ventilation of the hold, monitoring of the hold, becoming trapped in the hold, or procedures to respond when workers are affected by fumes.

This incident could have killed several workers, had they not taken action to save their colleagues lives, at risk to themselves. The evidence in the caption summary filed with the court, appears to show a company that relied on informal systems, and common sense. Even basic atmospheric monitoring was not being carried out. Nor was there even a system for evacuation from the hold. Yet this same company had provided an assurance to the regulator (Maritime New Zealand) that it does have Quality Management Systems; that it runs an internal audit program that includes verification of site compliance with its Standard Operating Procedures and policy documents. It has achieved ACC Accredited Employers Programme (AEP) status for the previous three years, gaining Tertiary status. It said that it is committed to health and safety, hazard management, incident reporting and investigation systems, and employee engagement.

These assurances are on the record and came to light because in December 2017 a few months before Kopo and the crew were injured, there had been another seriously injured port worker who was on deck stacking and arranging logs, up to 4.5 metres high. When he climbed down he fell 8 metres onto the berth.

Another fatality

Six months after Kopo and his colleagues were injured, Shannon Rangihuna was fatally injured in the Eastland Port while she was tallying logs. She died from crush injuries after she was hit by a log that fell from a trailer load she was about to scan in a “tally lane” just before 9am on October 8, 2018. The same company was convicted and ordered to undertake significant health and safety improvements.

A WorkSafe investigation found numerous routine hazards in the tallying process and the company already knew about the hazard of logs potentially falling from trailers, but had failed to take steps to alleviate risks and protect its workers.

These are recent cases, involving a large company specialising in log logistics at a number of New Zealand ports. I haven’t named the company as at the time of writing the verdict was not available. The cases illustrate that hazards known for decades about oxygen depletion, falling from heights, and being hit by insecure logs, are still bedevilling us.

We are fortunate that the regulators are looking past the company slogans: “Safety comes first and is our number one priority” and are prosecuting companies. We are also fortunate that there are some fantastically good and thorough journalists who are willing to investigate and cover health and safety at work, such as Rebecca Macfie and Thomas Mead, 1 News reporter.

Thomas decided to air workers grievances about health and safety at Talley’s. Thomas Mead tweeted: “This long-read shows just how far Talley’s went to try and shut down our investigation into their safety practices, detailing leaked internal emails, a legal threat and an extraordinary showdown in their boardroom.”

He quoted from a letter to him: “Dear Mr Mead,” he wrote: “The photographs do not concern an issue of public importance or safety. […] My client seeks confirmation by TV ONE News by 2pm today that the misappropriated photographs will not be published or screened. Failing such confirmation my client intends to seek immediate injunctive relief to prohibit TV News disclosing that material.” We responded shortly afterwards, saying the photos were clearly in the public interest. A few hours later, the story went to air on the 6pm news.

Regulators may come under pressure

As the regulators become more effective and clear eyed in their prosecutorial role, they may come under pressure from the companies they chase. In their sights will be National and Act Party policy, designed to reign in the regulators by throttling their funding, change the regulators priorities away from prosecution back to education and even amending the Health and Safety at Work Act to discourage (or prevent) prosecutions of directors.

Kopo’s case, tells us, such reversals would be a mistake. Our health and safety is still so poor in New Zealand, if we can’t even get the basics right for confined space work, working at heights, and falling objects. Kopo survived but has residual symptoms (and no ACC cover), Shannon died, and the worker who fell 8 metres on the berth is still seriously unwell years after the fall.

Hazel Armstrong specialises in ACC, health and safety, employment law and professional ethics. She sits on the boards of KiwiRail and Ports of Auckland Limited.

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