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Safeguard OSH Solutions - Thomson Reuters

Safeguard OSH Solutions - Thomson Reuters



Safeguard Magazine

FROM THE COURTS—RECENT NZ HEALTH AND SAFETY PROSECUTIONS

BRIEFS

CHEMPRO LTD was fined $23,000 under s18(1)(a) of the HSE Act and ordered to pay $4500 in reparations to an onhire worker who suffered chemical burns when cleaning product from a ribbon blender. He had been using the blender to mix and package chlorinated alkali powder. When the supply of chemical ran low, he entered the blender tank to manually push the remaining product through the filler valve. As he did so, the blender blade tore his chemical-resistant overalls. When he left the tank he realised his foot had come into contact with the chemical. He immediately removed his footwear and rinsed the area, but was later hospitalised for a skin graft. The tank had originally been cleaned from outside, but the company had allowed the practice of cleaning it from the inside to develop (Lower Hutt DC, August 19 2008).

PERRY METAL PROTECTION LTD was fined $22,000 under s6 and ordered to pay $10,000 in reparations to a worker who suffered serious groin injuries when he slipped and fell onto the rim of a tank. He was standing on the lip of the tank, which contained dilute acid, attempting to reattach a jig to metal components that had been placed in the acid bath. He fell heavily, with one leg slipping into the acid bath and his testicles being crushed against the side of the tank. Thorough rinsing of his skin prevented acid burns, but his groin injury was so severe that one testicle had to be surgically removed. Metal placed in the acid bath often came away from the jig, which was used as a lifting point for the crane, but the hazard of walking on the tank edge had not been identified. After the accident the acid tanks were shifted so there was room to walk between them and workers no longer had to climb on the rim (Lower Hutt DC, August 26).

Metal fabricator MULLAN & NOY LTD was fined $8000 under s6 and ordered to pay $6000 in reparations to a worker who partially amputated the top of his thumb in a poorly guarded guillotine. There were no guards on the sides of the machine, allowing the worker to reach past the front guard to adjust a piece of metal he was about to cut. As he did so the blade descended, hitting his thumb. The work he had been asked to do was not suitable for the machine because the metal pieces were too small to be properly aligned beneath the blade. The judge allowed a significant penalty discount in recognition of the company’s good record, early guilty plea, and immediate efforts to eliminate the hazard (Hamilton DC, September 29).

YARROWS (THE BAKERS) LTD was fined $45,000 under s6 and ordered to pay $17,146 in reparations to a teenage employee whose hand was severely crushed in a pastry roller. He was cleaning the machine in accordance with accepted, but undocumented, practice. As he restarted the machine he dropped the scraper he was holding and reached out instinctively to retrieve it. His hand was caught and drawn into the rollers. It took almost two hours to free him. He lost all muscle and tendons, and some blood vessels, from the palm of his right hand. There was no guard on the rollers, even though they had been in use for many years, and had to be cleaned two or three times during every work shift. The company had previously been convicted for another incident involving unguarded equipment, but the judge discounted the penalty starting point by 35% to acknowledge its ongoing support of the injured man, its cooperation with the investigation, and the remedial steps it had taken (Hawera DC, September 29).

HAMPDEN FENCE LTD was fined $30,000 under s15 – for failing to ensure that no one was harmed by the actions of its employees – and ordered to pay $30,000 in reparations to a woman who was injured when struck by a heavy metal gate. Two employees were to replace a damaged post on a 6m-long sliding gate which secured a commercial site. They removed the old post, but before they could complete the task they were summoned to another job. This task took longer than expected and they did not return to the original site that day. They had not told anyone at the site that they were working on the gate, and when a cleaner tried to shut it some hours later, it came off its track and fell on her, causing multiple fractures, collapsed lungs and internal bleeding (Manukau DC, October 3).

Cover-up by “rogue employee”

A company’s failure to notify the Department of Labour following a serious harm accident was the wrong decision of one “rogue employee”, the High Court has ruled.

The Supply Chain Ltd was appealing three HSE Act fines relating to a serious hand laceration suffered by a labourer at its Otahuhu meat processing plant.

After hearing new evidence, Justice Lyn Stevens reduced the penalty for the s25(3)(a) and (b) offences of failing to report serious harm from a total of $70,000 to $16,000, but dismissed an appeal against the $15,000 s13(b) fine for failing to ensure the injured man was properly trained. There was no appeal against the $1000 reparations (High Court Auckland, September 2).

The District Court had regarded the failure to notify the DoL as a deliberate cover-up (Manukau DC, February 29). On appeal, however, the manager of the boning room said it was his decision not to report the injury, even though it was contrary to company policy, and he had been disciplined as a result.

While companies are liable for managers’ actions, the judge noted that this was not a senior member of staff. He put culpability between medium and low, and set the penalty starting point for the s25(3)(a) offence at $20,000, with a further $4000 for the second s25 charge. These were discounted to $13,300 and $2700 respectively.

Eleven poisonings, one charge

The fine imposed on a company where 11 people suffered carbon monoxide poisoning after an LPG forklift was used in an enclosed area has been reduced by more than half in the High Court.

Talleys Frozen Foods Ltd also successfully challenged its 11 separate s6 convictions in relation to the incident. Justice Jillian Mallon accepted the appellant’s claim that the case represented a single failure and quashed ten of the convictions, amending the remaining one to include all injured parties. She reduced the original $110,000 fine – $10,000 for each conviction – to $52,500, and amended the reparations order to a single sum of $33,000 divided 11 ways, rather than 11 orders of $3000 each (High Court Blenheim, November 19).

While not asked to reduce the reparations, she was asked to consider whether the awards were excessive, given that the workers suffered no financial losses or lasting ill effects. Judge Mallon accepted that they were “generous” in the circumstances, and considered this when determining the total penalty.

The district court decision did not give a penalty starting point, but Justice Mallon determined that $60,000 to $65,000 was an appropriate figure, increased to $70,000 in light of the company’s failure to deal appropriately with a known hazard. She reduced this figure by 25% in recognition of the generous reparations and preventive steps that had subsequently been taken.

High Court: fines must go up

Fines must rise significantly if they are to achieve the objects of the HSE Act and the Sentencing Act, a full bench of the High Court has ruled.

After considering Department of Labour appeals against the sentences imposed in three recent prosecutions, Justices Anthony Randerson and Graham Panckhurst not only increased the fines in every case, but also ruled that HSE Act penalties across the board have been too low to provide the deterrence and denunciation that the legislation intends.

They increased the fines for all three offenders by multiples of between two and ten, and more than doubled the only reparations payment they were asked to consider.

The judges were hearing Department of Labour appeals against the sentences imposed on Black Reef Mine Ltd, Cookie Time Ltd, and Hanham and Philp Contractors Ltd (High Court Christchurch, December 18).

In January 2008 Black Reef pleaded guilty to charges under s6 and s 18(1)(a) of the HSE Act after a miner died in an inrush of water when blasting operations breached a flooded shaft. It was fined $10,000 and ordered to pay reparations of $20,000 to the man’s widow. The High Court increased these to $20,000 and $55,000 respectively, saying that the district court decision did not reflect the degree of transparency and the methodical approach that they considered necessary. The judge, they said, had not explained how he fixed the starting point for the fine, and had not sought to clarify the company’s financial situation.

The judges placed the company’s culpability at the middle of the high band, which they said justified a starting point of $140,000. This was halved in recognition of the company’s early guilty plea and the award of reparations, and further reduced in light of the company’s financial situation.

In relation to Cookie Time, where a worker’s arm was crushed in an unguarded conveyor, the judges increased the $15,000 s6 fine to $40,000, also noting that the $5000 reparations, which the DoL had not appealed, were “barely adequate”.

They said the unguarded conveyor was an obvious, well known and preventable hazard, and put culpability for the incident at the cusp of the medium and high bands.

They adopted a starting point of $100,000, discounted by 50% in recognition of the early guilty plea, previous clean record, and compensation paid, then reduced that by a further $10,000 because penalty increases on appeal should be conservative.

Commercial construction company Hanham and Philp was originally fined $5000 under s18(1)(a) and ordered to pay $12,000 reparation to a contractor who fell down a stairwell when a makeshift scaffold collapsed. On appeal the judges increased the fine to $50,000 but the reparation award, reached by agreement between the parties, was unchallenged.

The judges said the district court had erred in discounting the $23,000 starting point by the full value of the reparations award while also allowing for other mitigating factors. Culpability was at the lower end of the high category as the temporary scaffold was obviously inadequate, a safe alternative was readily available, and the victim could have been killed. The penalty starting point of $125,000 was discounted by 55% to acknowledge the company’s early guilty plea, previous safety record and good response to the event.

Thomson Reuters

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