(SA) BLASLOV FISHING PTY LTD v BAKER, Neill Thomas JURISDICTION

14 Pages·2006·0.11 MB·English

Blaslov Fishing Pty Ltd v Baker [2006] SAIRC 88

INDUSTRIAL RELATIONS COURT (SA)

BLASLOV FISHING PTY LTD

v

BAKER, Neill Thomas

JURISDICTION: Appeal to Single Judge

FILE NO/S: 5996 of 2005 (AMC 05-10522)

HEARING DATES: 3 October 2006

JUDGMENT OF: His Honour Judge P D Hannon

DELIVERED ON: 7 December 2006

CATCHWORDS:

Appeal - Prosecution of operator of prawn trawler after a crew member fell
overboard and drowned - Crew member not wearing a personal flotation
device - Early guilty plea - First offence - Fine of $60,000 imposed after
reduction for guilty plea from notional fine of $70,000 - Whether Industrial
Magistrate erred in his understanding of the relevant facts or took into account
irrelevant matters - Whether fine manifestly excessive - Whether reduction of
fine on account of guilty plea was manifestly inadequate - Held that the
Industrial Magistrate erred in having regard to a perceived failure to supply
suitable personal flotation devices - Appellate court entitled to intervene -
Appeal allowed - Fine of $60,000 set aside and substituted by fine of $48,000 -
S 19(1) Occupational Health, Safety and Welfare Act 1986 - S 53 Criminal Law
(Sentencing) Act 1988

REPRESENTATION:

Counsel:
Appellant: Mr T Stanley
Respondent: Mr K Soetratma
Solicitors:
Appellant: Wallmans Lawyers
Respondent: Crown Solicitors’ Office
Blaslov Fishing Pty Ltd v Baker 2 Hannon J
[2006] SAIRC 88

Introduction
1 On 21 December 2003 Mr Asim Abdic was working as a deckhand on a
vessel named the Grozdana B. The vessel was owned and operated by
Blaslov Fishing Pty Ltd in the prawn fishing division of its business.
Mr Abdic fell overboard whilst releasing a fishing net into the sea. He
was not wearing a personal flotation device (“PFD” or “life jacket”) at the
time. He drowned before his fellow workers could rescue him.
2 Blaslov was charged with a breach of s 19(1) of the Occupational Health,
Safety and Welfare Act 1986 (“the Act”). It was alleged that Blaslov
failed to provide and maintain, so far as was reasonably practicable, a safe
system of work by failing to ensure that a life jacket was worn by
Mr Abdic whilst he was retrieving or releasing fishing nets from the stern
of the vessel. It was also alleged that Blaslov provided inadequate
instruction, training and supervision of Mr Abdic in relation to the need
for wearing a life jacket whilst retrieving or releasing nets.
3 Blaslov pleaded guilty to the charge. An Industrial Magistrate imposed a
fine of $60,000. He also ordered that Blaslov pay a sum of $4,000 each to
five members of Mr Abdic’s family (a total of $20,000) pursuant to s 53
of the Criminal Law (Sentencing) Act 1988 (“the Sentencing Act”).
4 Blaslov now appeals against the penalty. Blaslov contends that the
Magistrate:-
• took into account irrelevant matters and made erroneous
assumptions or inferences in determining the facts upon the
basis of which he imposed penalty;
• before considering the discount to be given for a guilty plea,
selected a notional fine which was manifestly excessive;
• failed to adequately discount the fine on account of the plea of
guilty and other relevant matters.
Principles on appeal
5 An appellate court can only interfere with a sentence imposed if an error
has been made. The sentence can only be interfered with on the basis that
it is manifestly excessive or inadequate, or if it is outside the permissible
range: R v Nemer.1
6 A decision on sentencing involves the exercise of a judicial discretion.
Accordingly, the exercise of that discretion may only be interfered with if
the decision maker misapprehended the principles to be applied, had

1 (2003) 87 SASR 168 at 171 per Doyle CJ
Blaslov Fishing Pty Ltd v Baker 3 Hannon J
[2006] SAIRC 88

regard to some irrelevant matter, or misunderstood or failed to take into
account some relevant matter: House v The King.2
Factual Background
7 Mr Abdic was an experienced deckhand. He was 56 years of age at the
time of his death having worked with Blaslov for 25 of his 30 years in the
prawn fishing industry. Blaslov is a family owned fishing enterprise based
in Port Lincoln. Its operations include the fishing and farming of tuna and
prawn trawling. It had much experience in the fishing industry.
8 Mr Abdic fell overboard at 4.00 am on the morning of 21 December
2003. He was engaged in one of his usual tasks involving the release of a
fishing net into the sea. In accordance with standard practice, he was
wearing full wet weather gear including a jacket, overalls, and knee high
boots, but was not wearing a life jacket.
9 Mr Abdic was feeding a rope attached to the net into the water as the rope
unwound from a large winch. During this process the rope jammed and
became taut. It pushed against Mr Abdic, causing him to overbalance and
fall over the relatively low bulwark of the vessel into the sea.
10 Mr Abdic was not a good swimmer. It took some time for the skipper of
the Grozdana B to bring the vessel around. A crew member swam to
assist Mr Abdic but by the time he arrived Mr Abdic was face down in the
water. He was hauled onto the vessel but could not be revived.
11 At the time of the incident there were two types of life jackets on the
vessel, both supplied by Blaslov. One was described as a SOLAS
standard. It was required to be on the vessel by law in accordance with
survey procedures relating to general safety. It was a jacket of bulky
design in order to facilitate keeping one’s head out of the water. The
intended use was in the event of emergencies, such as when the vessel
was sinking. It was not suitable for wear whilst working.
12 The other type was a self-inflatable jacket style PFD which was less bulky
in design. It was not required for survey purposes. The skipper of the
Grozdana B said he bought and supplied these jackets for the safety of the
crew. He did not consider them to restrict movement, although they
became a “bit hot and sweaty in summer”.3
13 One of each type of life jacket had been allocated to Mr Abdic. They were
subsequently located in his sleeping quarters. The jacket style PFD
appeared never to have been used. Blaslov had not put in place any

2 (1936) 55 CLR 499 – see also the remarks of Parsons DPJ in Moore v Michell Australia Pty Ltd
[2005] SAIRC 59 at pars 9 and 10
3 Complainant’s submissions Appeal Book page 10
Blaslov Fishing Pty Ltd v Baker 4 Hannon J
[2006] SAIRC 88

procedures which required crew members to wear life jackets during the
activity in which Mr Abdic was engaged at the time of his fall overboard.
14 When interviewed after the event the skipper of the Grozdana B stated
that the crew on board were experienced. It appears that he left it to the
judgment of the crew as whether or not they would wear a life jacket. In
turn it appears the crew assumed they need not wear life jackets unless
told to.
15 After the accident, Blaslov supplied another type of PFD, being a “yoke
style” device, which inflated automatically on contact with water, and was
more suitable for wear whilst working than the jacket style PFD. Blaslov
directed crew members that the yoke style PFD had to be worn during the
release and retrieval of nets, and in certain other circumstances.
16 Mrs Rita Abdic, the widow of Mr Abdic, provided a victim impact
statement on behalf of herself and her four children. At the time of the
incident the youngest of the children were twin daughters both about to
commence Year 12 of their education. Mrs Abdic described the
significant anger, shock, devastation, grief and financial difficulty
suffered by her and her family as a result of the death, and the adverse
health effects which caused her to be hospitalised due to depression on
two occasions.
17 Mrs Abdic said that she experienced continuing feelings of
disappointment and betrayal for a number of reasons. These included that
following the incident Blaslov successfully resisted a claim for spousal
compensation under the Workers Rehabilitation and Compensation Act
1986 (“the Compensation Act”) due to Mr Abdic’s status as a crew
member of a fishing boat remunerated by profit share.4 Also there had
been disputation over a long service leave entitlement which Blaslov
eventually agreed to pay. In addition, Mrs Abdic was disappointed that a
life insurance policy taken out and paid for by Blaslov with respect to
Mr Abdic only resulted in payment of a sum of $50,000. It was asserted
that for many years Mr Abdic had paid for a much more substantial
policy, which he had relinquished on Blaslov offering to take out a policy
on his behalf, wrongly thought to provide the same cover.
18 Payments made to Mrs Abdic following the death of Mr Abdic included
the life insurance payment of $50,000, a sum of $30,462 for the accrued
long service leave, and an additional sum of $49,538. Blaslov paid this
further amount voluntarily, apparently because it accepted that the life
insurance proceeds were lower than anticipated.

4 S 3(3) Workers Rehabilitation and Compensation Act
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Penalty
19 Having set out the various matters he took into account, the Magistrate
stated that he regarded the offence as very serious given the foreseeable
consequence of death resulting from a crew member falling overboard
whilst not wearing a life jacket, and given his view that Blaslov had
shown a disregard for the safety of its crew members. He observed that
the seriousness of the offence and the need for general deterrence
outweighed various subjective factors in favour of Blaslov.
20 After having regard to the maximum fine for a first offence of $100,000,
he indicated that a fine of $70,000 he would otherwise have imposed
would be reduced to an amount of $60,000. He made this reduction after
giving favourable consideration to the voluntary payment made by
Blaslov to Mrs Abdic, to its guilty plea and to its expression of remorse
and contrition.
Consideration
21 The complaint made by Blaslov with respect to irrelevant considerations
and erroneous factual assumptions focused on whether the Magistrate:-
• erred in having regard to a failure by Blaslov to provide
“suitable” life jackets;
• wrongly took into account that Blaslov was aware of and
influenced by two previous incidents in formulating a written
safety policy in 2002;
• gave insufficient credit to Blaslov for the voluntary payment
by having regard to irrelevant matters involving the amount of
and circumstances of the payment.
The reference to a failure to provide “suitable” life jackets
22 The Magistrate prefaced his sentencing remarks by observing that
Mr Abdic’s death was “entirely foreseeable and easily preventable”, and
was caused by “an unacceptable complacency and disregard of the risk of
drowning”.5
23 Blaslov contended that these observations emanated in part at least from
the Magistrate’s conclusion that suitable life jackets were not provided to
the crew. It was contended that such a conclusion was contrary to the
evidence that one of the types of life jacket supplied by Blaslov before the
incident was suitable for wearing whilst working on the boat.

5 Pars 4 and 6 of the decision
Blaslov Fishing Pty Ltd v Baker 6 Hannon J
[2006] SAIRC 88

24 As observed above, Blaslov supplied a new yoke style PFD after the
incident and directed that it be worn by crew when releasing or retrieving
nets, and in other circumstances. Blaslov contended that this direction did
not suggest that the jacket style PFD it previously supplied was not
suitable for wear in the same circumstances, even though the yoke style
PFD subsequently provided was more suitable.
25 The charge against Blaslov was confined to the failure to provide a
system of work which ensured that a life jacket was worn in certain
circumstances. The Magistrate correctly reminded himself of the terms of
the charge.6 Notwithstanding his having done so, Blaslov contended that
the Magistrate took into account matters beyond the terms of the charge
by forming the view that Blaslov also did not supply suitable life jackets.
26 I consider there to be force in this submission. A perusal of the
Magistrate’s reasons shows that he came back to the issue of the provision
of suitable life jackets on more than one occasion after reminding himself
of the terms of the complaint.
27 The Magistrate correctly understood that Blaslov supplied two types of
life jackets to the crew of the Grozdana B, and that one of each had been
allocated to Mr Abdic. After adverting to the provision by Blaslov of the
“yoke type” life jacket after the incident, the Magistrate observed that
Blaslov’s “…explanation as to why suitable PFD’s were not provided
before then is wholly inadequate and unconvincing.”7
28 When discussing his understanding as to the type of equipment now
available, the Magistrate said:-
“…close fitting self-inflating PFD’s with water activated
emergency beacon and water activated EPIRB are readily available
at a modest price and ought to be standard equipment on all
commercial fishing boats. This is strongly recommended in
addition to the SOLA PFD, as they have a different purpose.”8
29 There was no evidence as to the availability of such equipment, and there
was dispute as to whether the Magistrate was referring to one piece of
equipment or two, although the transcript of submissions clearly indicates
it was the former.9 However, even accepting that such equipment was
available at the relevant time, either as one item with all features
incorporated or as two items, the plain inference of the Magistrate’s
comment is that he had regard, in part at least, to what he considered was
a failure by Blaslov to provide a suitable life jacket to Mr Abdic.

6 Par 16 of the decision
7 Par 23 of the decision – my emphasis
8 Par 35 of the decision
9 Tr 13 line 29-30
Blaslov Fishing Pty Ltd v Baker 7 Hannon J
[2006] SAIRC 88

30 The Magistrate made a further reference to the matter when summarising
his reasons for concluding that the offence was “very serious”. He said
“the fact that Mr Abdic could have decided to wear an uncomfortable or
restrictive company supplied PFD, or that he could have bought his own
preferred PFD is not a mitigating factor”. After noting that Blaslov should
have been aware of the risk of a crew member drowning if a life jacket
was not worn, the Magistrate observed that Blaslov “…therefore had the
responsibility to devise and implement a safe system of work to ensure a
suitable PFD was worn while performing hazardous work”.10
31 Blaslov also complained of a further comment. The Magistrate noted the
concession by Blaslov that the safety policy it had in place before the
incident was inadequate. Although he accepted that the policy
demonstrated some awareness by Blaslov of its obligations, the
Magistrate then said “the tragedy for Mr Abdic and his family is that the
response to identified severe dangers was so inadequate”.11 This comment
was said to echo the earlier comment that Blaslov’s explanation as to why
suitable life jackets were not provided was “wholly inadequate and
unconvincing”.
32 There is no doubt that the offence to which Blaslov pleaded guilty was
very serious. The accident had tragic consequences for Mr Abdic and his
family. The Magistrate was entitled to observe in his introductory remarks
that Blaslov had shown complacency and disregard for safety of crew
members given Blaslov’s negligence and its admissions as to
complacency and the inadequacy of the occupational health and safety
review undertaken in 2002.
33 There was material before the Magistrate which suggested that crew
members tended not to wear the jacket style PFD provided because it was
considered that such jackets were hot and uncomfortable in the summer
months. It appears that the yoke style jackets purchased after the accident
were lighter and more suitable for wear whilst working. However, that is
not to the point. There was no evidence to suggest that in the absence of
an instruction to do so, the yoke style jackets provided after the incident
would have been worn any more than the jacket style PFD provided
before the incident. The charge did not allege a failure to provide suitable
life jackets, and Blaslov did not admit to any such failure. There was
nothing before the Magistrate which suggested the jacket style PFD was
not suitable for wear by Mr Abdic at 4.00 am on the morning he fell
overboard.
34 The reasoning of the Magistrate leads me to the conclusion that in
determining the seriousness of the offence, and hence the appropriate

10 Par 41 – my emphasis
11 Par 31 of the decision
Blaslov Fishing Pty Ltd v Baker 8 Hannon J
[2006] SAIRC 88

penalty, one of the matters he took into account and in relation to which
he was critical of Blaslov, was his view that Blaslov failed to provide a
suitable life jacket to Mr Abdic. Given the terms of the charge to which
Blaslov pleaded and the nature of the material before him, I consider that
he erred in so doing and made an erroneous factual assumption.
The reference to Blaslov’s awareness of two prior incidents
35 Blaslov tendered a written safety policy dated 27 September 2002, which
had been prepared with the assistance of an external consultant and
incorporated a detailed safety hazard analysis. Thus the policy was in
place some 15 months before the incident in question. The policy was
developed because Blaslov had decided in about June/July 2002 to look
seriously at its occupational health and safety systems. The Magistrate
was told that the motivation for doing so “may” have been partly due to
Blaslov’s awareness of a prosecution of Dinko Tuna Farmers Pty Ltd over
an incident in June 2002 (“the Dinko incident”). This related to an
incident when a crew member fell overboard whilst not wearing a life
jacket. The Magistrate then observed that Blaslov “was also aware of and
influenced by” the drowning of a crew member employed by A. Lukin
Nominees Pty Ltd in 1992 (“the Lukin incident”). The crew member fell
from a dinghy whilst working with a net. He was not wearing a life jacket.
36 Immediately after referring to the incidents, the Magistrate commented
that “regrettably neither of the prior incidents nor the policy raised the
defendant’s awareness as to the need for crew members to wear a PFD
whilst engaged in hazardous operations on the working decks of boats.”12
In summarising his reasons for concluding the offence was “very
serious”, he observed that the appellant “was aware of a near miss in 2002
and of a drowning in 1999”.13
37 Blaslov did not complain about the Magistrate taking into account its
knowledge of the Dinko incident. However, it submitted that there was no
basis upon which the Magistrate was entitled to find that Blaslov was
aware of and influenced by the Lukin incident.
38 The Lukin incident came to the Magistrate’s attention when he was
seeking comments from Blaslov’s counsel, Mr Maitland, with respect to
certain hazards identified in the 2002 safety policy. One hazard was
described as the activity “tinnies over the side”, being a reference to the
launching of a small aluminium boat from the main vessel. The analysis
bore the notation “life jackets”. When explaining that item counsel for
Blaslov said “in fact there was an incident several years ago of a person

12 Par 28 of the decision
13 Par 41 of the decision – the reference to the 1999 incident was agreed to be a reference to the Lukin
incident which probably occurred in 1992 as noted elsewhere in the decision.
Blaslov Fishing Pty Ltd v Baker 9 Hannon J
[2006] SAIRC 88

who drowned from a tinnie”, and that it involved an issue about not
wearing a life jacket.
39 Whilst counsel for Blaslov on this appeal, Mr Stanley, conceded that the
comment made to the Magistrate was a reference to the Lukin incident, he
submitted that nothing said by counsel at first instance permitted a finding
that Blaslov was even aware of the Lukin incident, let alone influenced by
it, in developing its safety policy.
40 Although it must be said that the issue is not free from doubt, I do not
accept this submission. One must have regard to the context in which
reference to the Lukin incident was made. A safety policy booklet had
been put before the Magistrate by Blaslov to support the plea in
mitigation that Blaslov had taken some action, albeit inadequate, to
address occupational health and safety issues before the incident. In this
context, counsel for Blaslov referred to the Dinko incident and the fact
that it may have played a part in prompting the policy review. A little
later when the Magistrate inquired as to the nature of the operation
described as “tinnies over the side”, counsel for Blaslov volunteered the
reference to the Lukin incident.
41 I find it hard to understand what the purpose of the reference to the Lukin
incident was other than to indicate to the Magistrate that in considering
the hazards of launching a tinnie over the side, Blaslov was mindful of the
need for the wearing of life jackets given the Lukin incident. The incident
resulted in the death by drowning of a crew member, and a prosecution to
which Lukin pleaded guilty, matters which no doubt were well known to
the Port Lincoln fishing industry, of which Blaslov was part at the
relevant time.
42 I conclude that given the circumstances in which the reference to the
Lukin incident was raised, the Magistrate cannot be criticised for
assuming that Blaslov was aware of and influenced by it in the
formulation of the 2002 safety policy.
The voluntary payment
43 The Industrial Magistrate made comments to the following effect when
considering the various payments made by Blaslov to Mrs Abdic as
detailed above:-
• That if Mrs Abdic was not excluded by Mr Abdic’s status as a
contractor from making a spousal claim under the
Compensation Act, she would have been entitled to a lump
sum of $200,665 in addition to ongoing weekly payments for
dependency.
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[2006] SAIRC 88

• That the voluntary payment of $49,538 was made in the
context of foreshadowed common law proceedings for
damages, and that if such proceedings were successful, the
payment was likely to be factored into the assessment of
damages.
• That the voluntary payment was made to Mrs Abdic in the
absence of any established legal obligation, and should be
acknowledged as an act of reparation and as a positive
consideration in Blaslov’s favour.
44 Blaslov contended that the first two comments show that the Magistrate
had regard to irrelevant considerations and made incorrect factual
assumptions.
45 The transcript of submissions before the Magistrate shows counsel for
Blaslov submitted that Blaslov, appreciating that a claim for
compensation was not available to Mrs Abdic, paid her an amount
equivalent to the balance of what she would have received if a claim for
spousal compensation had been available to her.14 That submission was
not correct. It may have been the result of some confusion at that time
over precisely what the amount of the voluntary payment was, a matter
that was clarified later in the submissions.
46 The fact of, and the amount of, any voluntary payment was clearly
relevant, but whether or not it resulted in Mrs Abdic being paid a total
sum equivalent to that she would have received if a compensation claim
was available is not relevant. I am of the view that the comment made by
the Magistrate was a response to the submission made to him. After
detailing the amounts paid to Mrs Abdic, he simply noted the correct
lump sum entitlement if a compensation claim had been available and the
fact that there would also have been a weekly payment entitlement for
dependency. In context, I do not consider that the Magistrate was drawing
an adverse inference against Blaslov in making that remark. I do not think
it would have been made but for the submission put on behalf of Blaslov.
47 Blaslov next contended that the Magistrate diminished the significance of
the voluntary payment by noting that it was made in the context of
foreshadowed common law proceedings for damages, and by then noting
that in the event of a successful claim, the payment was likely to be
factored into the assessment of damages. This, submitted Blaslov, implied
that the Magistrate wrongly considered that the only reason the payment
was made was because of a pending common law claim. It was contended
that there was no evidence for a finding that when Blaslov made the
voluntary payment it had any knowledge that it might be the intention of

14 AB/28