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Safeguard OSH Solutions - Thomson Reuters

Safeguard OSH Solutions - Thomson Reuters

Accident Compensation Cases

Work Safe New Zealand v Kingstown Blue Spring Resort Ltd (DC, 25/09/15)

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Kingstown Blue Spring Resort Ltd
Kingstown Blue Spring Resort Ltd was fined $42,525 and ordered to pay reparation of $5000 after an Argentian worker was nearly crushed by a tractor with faulty brakes. He jumped off and the tractor rolled over an embankment, missing him by 10cm (Auckland DC, 25 September 2015). 
Accommodation, Cafes and Restaurants
Accommodation, Cafes and Restaurants
Vehicle - offroad (eg ATV, tractor)
Penalty Amount:
Reparation Amount:
Appeared in Safeguard issue 154

Judgment Text

Judge G A Fraser
Kingstown Blue Spring Resort Limited has pleaded guilty to a charge under the Health and Safety Act of failing to take all practical steps to ensure the safety of Mr Rivelli while at work in that it did fail to take all practical steps to ensure that he was not exposed to hazards arising from the operation of the Massey Ferguson 35 tractor. 
The summary sets out that the company had been operating as a tourist resort since the late 1880s and that in August 2014, the resort was purchased by the defendant company whose directors are overseas-based investors. As part of the business, the defendant became the owner of the Massey Ferguson tractor which was a tractor that weighed over three tonnes. It was not fitted with rollover protection or a seatbelt. 
As at 5 March 2015, the defendant employed 16 workers, approximately five of the workers were foreign backpackers. Mr Rivelli was in New Zealand on a working visa. He was employed on 29 September as a grounds man and part-time bartender. His duties included rubbish collection, lawn mowing and grounds maintenance. 
At 1.30 on 5 March he was cleaning up branches and twigs from some recently fell trees on the grounds of the resort and was using the Massey Ferguson tractor. He parked the tractor adjacent to a two metre high bank of the edge of the worksite where he had lowered the carryall fitted to the back of the tractor's three-point linkage hitch to the ground for the ease of loading. The carryall was full of branches and other debris. He mounted the tractor, placed it in neutral and started the machine. 
He was aware that the tractor had faulty brakes but believed that placing the carryall on the ground would prevent the tractor from rolling forward or backwards. However, the tractor began to roll towards the bank and due to the faulty brakes the victim was unable to stop the tractor. 
At the last moment he jumped clear and fell two metres, landing on his back on the gravel path below the embankment. The tractor also rolled over the embankment, narrowly missing crushing him by approximately 10 centimetres. The victim sustained bruising abrasions and an injured shoulder from the fall. He received medical attention but was discharged a short time later. 
The tractor was in a poor state of repair and the claim for that is set out in paragraph 11 of the summary. The poor condition of the tractor presented a significant hazard and was the primary cause of the accident. The victim had been driving the tractor for almost six months. He did not have any tractor experience prior to commencing employment and was not provided with adequate training and supervision by the defendant. 
The summary points to the service manual for maintenance, The Good Practice Guidelines for Safe Use of Tractors on Farms published by Work Safe and the ACC publication tractor safety. The summary alleges and it is accepted through the plea that the defendant failed to take all practical steps to ensure that its employees were safe at work. They were: to ensure the tractor was maintained so that it was safe for use by employees; to have ensured that the tractor was regularly serviced; to ensure that the brakes, tyres and other components were fit for purpose; to have ensured that employees were trained to safely operate the tractor and supervised until competent; and to have identified the hazard of working with the tractor and putting in place systems to eliminate or minimise those hazards. 
It is accepted that the company has no previous convictions or any appearances before the Court. The Court is assisted by the leading authority in Health and Safety prosecutions. That is in Department of Labour v Hanham & Philp Contractors Ltd & Ors (2008) 9 NZELC 93,095, (2008) 6 NZELR 79Has partially negative history or cases citing, but has not been reversed or overruled[Yellow] . In that case it sets out a three-step process for the purposes of sentencing. The first part of the process being assessing the amount of reparation, then fixing the amount of the fine and then making an overall assessment of the proportionality and appropriateness of the total imposition of reparation and the fine. 
In the Work Safe submissions, they submit recognising the maximum penalty is a fine not exceeding $250,000, that reparation in the region of five to $10,000 should be made, and an appropriate starting point for the fine in the region of $90,000 with a reduction for starting point mitigating factors and a discount of 25 percent for the guilty plea entered at an early stage. 
The basis of reparation is set out and an authority is referred to in support of that. In regards to the fine, the informant has worked through some relevant authorities that will assist in setting a start point for the fine and then it has referred to the mitigating factors that justify a discount of some significance from the start point. 
The defence have also filed submissions and they acknowledge likewise a start point in the range that had been indicated by the informant and also an acknowledgement that the start point fine of around $90,000 appears to be recognised by the case law that has been submitted. 
What is also submitted for the employer is that at no point did the employee raise the safety of the tractor with management, nor did he refuse to use the machine. It submits that the company did not have a copy of the manual that is referenced and also an indication from the defendant's point of view that there was no general requirement to fit rollover protection to a tractor manufactured prior to 1 September 1970 and that seatbelts were a requirement on agricultural tractors after 31 August 2001. In saying that, the employer acknowledges it did not fit either seatbelt or the rollover protection system. 
There is genuine remorse being expressed. Then there is reference to, what I describe as, significant changes that have been undertaken by the employer which to me demonstrate that the employer is now engaging as responsibly as one could expect, in part, in recognition of what has happened on this occasion. The recognition of the systems that the company has in place will be acknowledged by way of discount from the fine to a significant level. 
In terms of compensation or reparation, various factors are required to be considered including the loss of or damage to property, the emotional harm or the loss or damage consequential on any emotional physical harm or loss of damage to property. I am also required to take into account the Injury Prevention, Rehabilitation, and Compensation Act 2001 and any offer or agreement to make amends. The financial capacity of the defendant is also a factor. 
What is clear in this case, looking at the victim impact report, is that there were some physical injuries but nothing was permanent and the injuries were transitory. That is fortunate because had the tractor been 10 centimetres closer to the victim and one suspects we would be dealing here with a fatality. 
I note there is some material reparation set out in his report amounting to $200. There is clearly emotional harm that has been sustained and Ms Moffitt has referred to that in that the victim has indicated that he will never be able to drive a tractor again. 
I have had the opportunity to consider the authorities and the cases cited. I am of the view we are not at the level of M B I E v Lean Meats, Oamaru where crushing injuries were sustained and there was a laceration of fingers and shoulder strain, and we are not at the level of The Department of Labour v Fonterra DC Hawera CRI-2009-021-958, 20 January 2010 where the reparation in that case was $12,500 involving an actual amputation. The M B I E v Lean Meats Oamaru ordered reparation in the sum of $10,500. In this case, recognising those authorities and also the injuries and emotional harm, I determine reparation in the sum of $5000. 
Assessing the quantum of the fine, again the various factors for assessing the quantum of fine are set out in Hamlin. Determining the blameworthiness for the offending and recognising the culpability factors, in this case, looking at those and there are a number of practicable steps that could have been taken. The realised risk was fortunately minimum injury but as I have referred to and I repeat, there was a serious risk associated with this event. There was no roll over protection. There was a lack of a maintenance plan or instructions to employees about use and all of that represents a significant departure from industry standards. 
There were standards available to mitigate the risk but none of those were taken although in saying that again I repeat that the present employer is a responsible employer in terms of where they presently sit and whilst they had the same obligations as any employer, I accept that they had only been in operation of this company for a limited period of time when the offending occurred. 
The obviousness of the hazard goes without saying. The event was serious as to both the brake failure hazard and the rollover and seatbelt protection. The availability, cost and effectiveness of a means to avoid the hazard, they were all available and were inexpensive. There was no reason not to have taken practicable steps and looking at the authority, in my view, it fits within the middle band. Recognising the authorities, in my view, I agree both with the informant and defence at the start point fine of $90,000 is where this matter sits. 
This is a more serious case than The Department of Labour v Taranaki Civil Construction Ltd DC New Plymouth CRI-2011-043-3018, 25 November 2011 where in that case a start point of $70,000 was the fine. But in that case, the company had hired the equipment but was seen by the Court to still have a substantial liability. In this case, I step back from the maximum fine for medium culpability recognising, as I have said, the fact that the present owner had only been operating the company for a short period of time. 
The aggravating factors relating to the offender are none. Recognising that, the mitigating factors are the fact that the employer was prepared to go to restorative justice and wanted to do that but there was an inability to make contact by the restorative justice providers with the victim and no restorative justice process took place. There is clear remorse expressed by the company and that is accepted. There are no prior convictions, no previous appearances. 
I acknowledge the serious efforts now being made by the company to address the highlighted short comings in the hotels documentation and health and safety policies throughout. The tractor has been disposed of and replaced with a new tractor. An external contractor has been engaged to carry out an external and independent onsite inspection assessment and the hazard report. 
The company now does not employ itinerant labour which the company sees as lessening the likelihood of any unauthorised use of plant and machinery by untrained staff. Staff meetings are conducted in order to create an early recognition of issues and the company was fully co-operative with the informant and the investigations that took place. 
Acknowledging that, we have a start point of $90,000 as a fine. I discount that by 30 percent for the mitigating factors which is $27,000. Less a 10 percent discount for reparation and less a full R v Hessell [2009] NZCA 450, [2010] 2 NZLR 298, (2009) 24 CRNZ 612Has partially negative history or cases citing, but has not been reversed or overruled[Yellow]  credit which leaves an endpoint fine of $42,525 and a reparation sum of $5000. 
In my view, the overall assessment of reparation and fine is proportionate to the circumstances of the offending and it recognises the statutory purposes and sentencing principles. 

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