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Safeguard OSH Solutions - Thomson Reuters

Safeguard OSH Solutions - Thomson Reuters

From the courts


EXPLANATORY NOTE: this edition contains a number of cases dating back to WorkSafe NZ’s formation in December 2013 which have not previously come to our attention. They are included here because we aim to report all successful prosecutions.

SOUTH CANTERBURY BY-PRODUCTS (2009) LTD was fined $30,000 under the HSE Act with $10,000 reparation after an employee opened a hatch on a meal exit conveyor to take a sample and came into contact with rotating blades when the hatch would not stay open, losing the tips of two fingers. The exit conveyor should have been fitted with a chute or guard (Timaru DC, 19 December 2013).

GMP PHARMACEUTICALS LTD was fined $26,250 with reparation of $25,000 after an employee lost three fingers, and had the other two degloved, when his glove became stuck to hot gelatine and his hand was drawn into the unguarded nipping point between die rollers (Manukau DC, 7 March 2014).

OCEANAGOLD (NEW ZEALAND) LTD was fined $40,000 with reparation of $20,000 after an employee was struck by a falling pipe while he and two others were engaged in pipe replacement work at Frasers Underground gold mine, causing a tibial plateau fracture just below his knee. A correctly implemented SOP would have not seen the three men working below a suspended pipe (Dunedin DC, 11 March 2014).

MURRAY J MCLAUCHLAN & CO LTD was fined $18,750 with reparation of $6250 after one of two employees working on a roof stepped forward onto a skylight and fell through it 6m into a workshop, breaking a clavicle. The company could have provided them with a safe working method for doing the job (Hutt Valley DC, 9 April 2014).

DEVAN PLASTICS LTD was fined $33,000 with $5000 reparation after an employee’s finger was crushed in the unguarded nipping point between a pipe and a roller on a pipe bending machine (Tauranga DC, 16 April 2014).

DUCO ENGINEERING LTD was fined $2000 for failing to notify the regulator of a serious harm incident when an employee doing a roof welding job fell from an uncertified and unsecured cage held by a forklift, crushing two of his fingers. His choice of access method was not related to the company (Napier DC, 16 April 2014).

M.J.H. ENGINEERING LTD was fined $45,000 with reparation of $8500 after an employee’s thumb was degloved when it was caught in the trapping point of an inadequately guarded machine (Wellington DC, 9 May 2014).

PANKHURST SAWMILLING COMPANY LTD was fined $47,000 with reparation of $22,000 after an employee required reconstructive surgery when his hand came into contact with a swing pendulum saw. The company should have enclosed the area with a fixed guard and provided a way to remove docked pieces of timber (Invercargill DC, 30 May 2014).

ABBAS LTD was fined $20,000 with reparation of $40,000 after a two metre tall gate weighing 700-900kg became unsupported during installation and fell on an employee, fracturing his spine and doubly fracturing his pelvis. The company could have provided a standard operating procedure for gate installation (Auckland DC, 18 June 2014).

AUCKLAND DRUM SUSTAINABILITY SERVICES LTD was fined $25,375 and ordered to pay reparation of $10,000, plus reinstatement of leave entitlements, after an incident in which a person was cleaning a roller on a lock seamer machine which seals the tops or bottoms onto steel drums. The company’s standard procedure was to clean these rollers by hand while they were rotating (Waitakere DC, 4 July 2014).

JULIAN’S ELECTRICAL AND ENERGY CONSERVATION LTD was fined $10,000 under the HSNO Act for having 36 tonnes of PCBs in storage, and failing to provide a management plan to the Environmental Protection Authority which adequately provided for their ultimate disposal, as required by a compliance notice (New Plymouth DC, 4 July 2014).

CORONA ELECTRICAL LTD was fined $11,250 with reparation of $2939 after a passenger arriving at Auckland International Airport fell when the travelator onto which she stepped began moving in the opposite direction. The company had been appointed to inspect lifts, escalators and travelators at the airport (Manukau DC, 18 August 2014).

CANTERBURY DRIED FOODS LTD was fined $42,000 with reparation of $15,000 after an employee lost a finger when a rotary screening machine being jacked up toppled off the trolley jack and fell onto his hand (Ashburton DC, 25 August 2014).

FOREST AND FARM SERVICES LTD was fined $30,000 with reparation of $15,000 after an employee lost a finger when it was caught between the blade of a firewood log splitter and a block of wood. A year earlier the control lever connecting the two hand controls broke. The company’s owner modified the machine so the blade could be both raised and lowered using the leg control only (Tokoroa DC, 6 November 2014).

ELECTRIX LTD was fined $26,250 with reparation of $82,663 after an employee died and another was seriously injured when the telescopic telehandler they were working from rolled over on a hillside at Makara. The company could have done more to identify training and operating requirements for the telehandler. NEW ZEALAND CRANE GROUP was fined $6750 over the same incident (Wellington DC, 11 November 2014).

PULTRON COMPOSITES LTD was fined $25,000 with $6000 reparation after an employee’s hand was dragged into an unguarded nip point between the v-belt and pulley of a mat cutting machine, resulting in loss of one finger and damage to two others (Gisborne DC, 16 December 2014).

ECOWIZE NEW ZEALAND LIMITED PARTNERSHIP was fined $16,000 with reparation of $21,180 after a worker’s hand was drawn into a conveyor while she was cleaning it. She suffered a fractured left forearm and muscle and tendon damage. The machine was not locked out (Morrinsville DC, 16 March 2015).

THE PALLET COMPANY (HAWKES BAY) LTD was fined $36,000 with reparation of $8000 after an employee lost part of a thumb when it was caught in an unguarded pinch point between the exposed chain and sprocket drive of a conveyor (Napier DC, 19 May 2015).

BLASTACARS HAMILTON LTD was fined $35,000 with reparation of $25,000 for failing to notify a serious harm incident to the regulator. An employee was refuelling a kart in the pit lane when she was struck by a kart driven by a customer, fracturing her left heel and right ankle. The scene was not held and CCTV footage was not preserved (Hamilton DC, 11 June 2015).

RAVENSDOWN AEROWORK LTD was fined $31,500 with reparation of $65,000 after a man was fatally crushed between a reversing loader truck and another loader truck at an aerial topdressing airstrip. The reversing truck was not fitted with a reversing camera, convex side mirrors or reversing alarm, and there was no spotter or traffic management plan (Timaru DC, 12 June 2015).

L&L MARRIOTT HOLDINGS was fined $15,000 for three times breaching a prohibition notice ordering it to cease spray painting until a compliant spray booth was installed (Nelson DC, 2 July 2015).

THE MIGHTY BAKERY LTD was fined $42,000 with reparation of $10,000 after an employee lost parts of two fingers to an insufficiently guarded guillotine while trying to clear jammed pastry dough at a conveyor outfeed (Tokoroa DC, 4 August 2015).


A civil contracting company has successfully defended a charge arising from a trench collapse after the court rejected the regulator’s arguments that its contractor pre-qualification process, and its JSA and other documentation, were inadequate.

Dempsey Wood Civil Ltd, the main contractor at a site being developed by Auckland International Airport Ltd, had been charged under s18(a) of the HSE Act after an employee of one of its subcontractors was injured in a trench collapse. The charge was dismissed (Papakura DC, 22 May 2015).

The July 2013 incident involved two employees of subcontractor company Draeinail Construction Ltd (which pleaded guilty to a separate charge). One of them was in the bottom of a trench ensuring a stormwater pipe was correctly aligned. The other operated an excavator positioned close to the edge of the trench, with its arm extended over the other man. Clay came loose from the front face of the trench, striking the man at the bottom and causing crush injuries to his pelvis.

The front face of the trench was benched with two steps cut to a vertical face of 1.8m each, and a 1.2m wide slot had been cut into the top edge to give the excavator driver better visibility. However the front face had not been battered to a safe slope.

In court, WorkSafe argued there were five practicable steps Dempsey’s could have taken to prevent the incident. They can be grouped into three alleged failings, the first of which was failure to effectively pre-qualify Draeinail to ensure it had a recorded OHS policy and a safe system of work, including method statements and hazard register/controls and a documented system for reviewing these. Assumptions based on previous experience with Draeinail would be insufficient, it was argued.

The Court rejected this argument, noting that Dempsey’s had worked with Draeinail since 2008, viewed the people involved as high quality, and had received positive feedback about the subcontractor from 20 project managers.

An expert witness for the defence said that documented systems could be helpful, but for a small “hands-on” contractor it is usually more valuable to know of their track record from direct experience than to rely purely on system documents.

The court found it was reasonable for Dempsey’s to rely on its prior knowledge of Draeinail’s health and safety practices.

The second group of alleged failings related to documentation: that Dempsey’s could have ensured a documented safe work method system for the trenching work was developed and communicated to contractors; and that an adequate JSA relating to the specific work had been developed and discussed daily with all workers.

While both parties agreed Dempsey’s project management plan was acceptable, WorkSafe noted that only one JSA had been completed, in April, three months after work had begun and three months before the incident; and that it had been prepared as a response to an incident in February when a Draeinail employee had been observed working outside the trench shield. WorkSafe said this should have alerted Dempsey’s to the need to monitor Draeinail more closely; nor was Draeinail required to attend daily pre-start meetings.

WorkSafe argued a JSA should be reviewed daily before work starts. The expert witness took the view that the prepared JSA was a comprehensive and generic document for all excavations deeper than 1.5m, and that it was unnecessary for each excavation to have its own JSA. He said documented systems of work are important at project level and provide a standard against which to audit, but the work on the ground was carried out by experienced people who communicated verbally.

The court also noted that the excavator driver had started on site only two days earlier and had not yet taken part in the weekly site induction for new workers.

The third step allegedly not taken was to monitor Draenail’s performance against Dempsey’s overall project management plan, especially after the February incident. Evidence was given that Dempsey’s conducted monthly audits and daily site inspections, and had visited the site twice already on the day in question. The court accepted this monitoring as adequate.

The Court accepted the JSA could have been more specific and the tailgate meetings better documented, but noted there was an agreed approach regarding dealing safely with the front face of a trench, and that Draeinail were the drainlaying experts.

The Court found the cause of the accident was due to decisions made by various Draeinail staff over a brief period of time, and that the decision by an experienced excavator driver to proceed very close to the face and then scoop out part of it, while a man was directly below, was difficult to comprehend and an “elementary error of judgement” which could not have been anticipated by Dempsey’s.

Thomson Reuters

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