Court acquits three companies over workplace death

Fadley Faisal

The Magistrate’s Court recently acquitted three companies after a trial on the charges of alleged failure to maintain a safe workplace that contributed to the death of an employee.

The case against private limited companies Kenyalang Marine Offshore (KMO), QESS Energy Support Services and QESS USV was the very first prosecution of its kind under the Workplace Safety and Health Order 2009, and the Merchant Shipping Order 2002.

A lengthy, 35-page written copy of judgement handed down by Magistrate Pengiran Shahyzul Khairuddien bin Pengiran Abdul Rahman last July 14 stated that the prosecution had failed to prove the case against the companies on the charges of causing the employee’s death on December 3, 2016.

The judgement also bore the uncontested facts of the case where the employee was on board a vessel known as QESS USV 1, as an employee of Emas Laut.

KMO had been appointed by QESS USV as the operator of the vessel, pursuant to a Shipman 2009 agreement. QESS USV was the owner of USV 1.

KMO then appointed Ashber Offshore as a sub-contractor, while Ashber in turn appointed Emas Laut as its own sub-contractor.

The employee was a member of the marine crew onboard. Apart from that, there were also passengers on board the vessel, who were QESS crews under the employ of QESS ESS.

The QESS crew was brought to offshore platforms for painting works, as part of a contract between QESS ESS and Brunei Shell Petroleum Company Sdn Bhd, using the USV 1 daily.

On board the vessel were also scaffolding materials, including wooden planks of two kinds – one to be used as part of the scaffolding, and the other to be used as boards on which bundles of scaffolding materials were to be placed on top on the vessel.

The bundles were placed on wooden planks to enable easy loading and unloading, whereby ropes could be passed under the bundles that would then secure the bundles to a crane.

On the evening of December 3, 2016, the USV 1 had berthed at Rasau Jetty located along the Belait River, as the second-banked vessel. The first-banked vessel was the QESS USV 2.

Despite there being a gangway supplied by the manufacturers of the vessel, which was meant to be used for the transfer of persons in accordance with the safety management system, the employee picked up one of the wooden planks on board the USV 1 and placed it between the USV 1 and the USV 2. He stepped on the plank, presumably to cross over to the USV 2, but the plank broke and the employee fell into the Belait River. He died from drowning and his body later found on a nearby riverbank.

The prosecution, comprising Deputy Public Prosecutors Aminuddin Zaki DP Abdul Rahman, Dr Hussin Ali Idris and Atiyyah Abas, produced investigators and experts from the Royal Brunei Police Force (RBPF), Maritime and Port Authority of Brunei Darussalam and the Safety, Health and Environment National Authority (SHENA), to give their evidence along with that from the crew on board, the management of the three companies and another from QESS ESS as prosecution witnesses.

The court found that planks were used instead of the provided gangway, as employees were too lazy to install the gangway, even though they knew that safety procedures required them to do so; and that the instances of using planks were not known to the three companies.

There were no reports of infringement of health and safety procedures found in evidence by the court, which also found that the prosecution had been unable to prove the three companies had failed in their duty to ensure that safe practices were followed on the vessel at all times.

Defence counsel Ahmad Basuni Abas represented KMO while defence counsels Eric Siow and Jonathan Cheok represented both QESS companies.