Skip to Content, Skip to Navigation
Advertisement

Safeguard OSH Solutions - Thomson Reuters

Safeguard OSH Solutions - Thomson Reuters



OSH Tracker

Department of Labour v Asian New Zealand Meat Company Ltd (DC, 28/04/95)

OSH Tracker

Defendant:
Asian New Zealand Meat Company
After a man cut his fingers while cleaning a skinner in a meat works, both the meat company and the cleaning contractor employing the man were convicted of offences against the HSE Act. Asian New Zealand Meat Company Limited (ANZCO) was fined $3000 for failing as a principal to ensure the employee of a contractor was not harmed. The injured man was awarded $500 of the fine (Dunedin DC, 28 April). See also Command Pacific (NZ) 
Industry:
Manufacturing
Sub-Industry:
Food, Beverage and Tobacco
Risk:
Machinery (trapped, crushed, cuts)
Harm:
Injury
Penalty Amount:
$3000.00
Reparation Amount:
$500.00
Appeared in Safeguard issue 32
Defendant:
Command Pacific (NZ)
Cleaning contractor Command Pacific (NZ) Ltd was fined $4000 for failing to ensure adequate supervision (s13) after an employee cut his fingers while cleaning a skinner in a meat works. The company was convicted and discharged for failing to ensure employee safety and failing to adequately train. The injured man was awarded $1500 of the fine (Dunedin DC, 28 April). See also Asian New Zealand Meat Company. 
Industry:
Property and Business Services
Sub-Industry:
Business Services
Risk:
Machinery (trapped, crushed, cuts)
Harm:
Injury
Penalty Amount:
$4000.00
Reparation Amount:
$1500.00
Appeared in Safeguard issue 32

Judgment Text

SENTENCING BEFORE DISTRICT COURT JUDGE T H EVERITT 
Judge T H Everitt
Asian New Zealand Meat Company Limited faces one charge under the Health and Safety in Employment Act 1992 under S 18, being a principal it failed to take all practicable steps to ensure that the employer/contractor namely, Douglas John Harris was not harmed whilst doing work, namely cleaning of a Townsend skinning machine which the contractor was engaged to do. 
Associated with that is another company known as Command Pacific (NZ) Limited otherwise called, or having control of a company called Crothalls, which is a large international named outfit and operating in New Zealand in the cleaning field, but under the company Command Pacific. 
Command Pacific is represented by Mr Barton and Asian New Zealand Meat Company by Mrs Barker and the prosecution represented by Mr Bates. Command Pacific face three charges under S 13 and S 6 and another S 13 charge relating to this incident on the 1st of July, being an employer it failed to take all practical steps to ensure an employee namely, Douglas John Harris, was carrying out cleaning work in the place of work, was adequately trained in the safe use of plant which the employer was required to use or handle namely, the Townsend skinning machine at the premises of Asian New Zealand Meat Company, Green Island, Dunedin. 
Failure to take all practical steps to ensure the safety of an employee namely, Douglas John Harris while at work and being an employer, it failed to take all practical steps to ensure that the employee namely, Douglas John Harris was carrying out the cleaning work in a place of work namely, the cleaning of a Townsend skinning machine at the premises of Asian New Zealand Meat Company Limited Green Island, Dunedin, had such knowledge and experience of such plant, or was supervised by a person who had such knowledge and experience of such plant, as to ensure that his doing the work was not likely to cause harm to himself. 
It is accepted by the prosecution that in the case of Command Pacific, it does not invite the Court to impose three penalties for the three separate offences which pleas of guilty have been entered. I will deal with the company mainly I think, on information 4003 laid under S 13, the last one I read out. 
The Health and Safety in Employment Act 1992 has been now in force for some considerable period of time and the Court is somewhat disturbed to have a regular procession of companies coming before it on these types of charges. I note today, someone on the National radio programme was complaining about on average 2 workers get killed, I think it's each month or something in New Zealand, and large numbers injured and the spokesperson was critical of that situation. 
The sentencing aspect of these prosecutions has been addressed in any event, in the High Court in Christchurch by Justices Tipping and Fraser in the case of Despar Western Funeral Services v Gordons Wools and Skins and the Court there set out a number of relevant criteria which I'm familiar and have reminded myself when addressing the appropriate penalties in this case. For example, the degree of culpability must be carefully assessed. The pros and circumstances in which the breach took place, degree of harm resulting, financial circumstances of the offender, the attitude of the offender both in regard to remorse, co-operation with the authorities and taking remedial action. The plea of guilty, the need for deterrence both particular and general. The weighty of this factor will differ according to the circumstances. S 28 of the Criminal Justice Act, consideration of the award of something to the injured party. The safety record of the company or offender, both specific and general and any other matters which I consider to be relevant. It is not an exhaustive list. 
The facts are relatively straightforward in this case, contained in the summary and the unfortunate Mr Harris was employed by Command Pacific, Crothalls, to clean in the plant of Asian New Zealand Meat Company in Green Island and on the day in question, the 1st of July, he was engaged in cleaning a Townsend skinning machine, photographs of which Mr Bates has kindly allowed me to see, which seems to be a machine which removes membranes from meat and has for that purpose, rollers or a roller with teeth on it which runs up against a fixed blade, meat being fed over this no doubt and the membrane removed. 
The input and output parts of the machine or infeed, both have guards so that the machine was originally designed, I am told, to ensure that whilst it was operating there could not be access by a person's hands for example, to these dangerous areas of the machine and both guards had to be lifted to access the roller area and that would activate an electrical device, which would switch the machine off. 
Mr Harris found some way of carrying out his job of cleaning this roller while the machine was operating and it's now apparent from investigations, that one of the guards had been shortened in length, where they overlapped, to enable one guard to be lifted without the other. Consequently a guard could be lifted, access to the roller area obtained while the machine was still running and that's what happened on this day. Mr Harris using a small scrubbing brush type device being described to me by Mr Barton without a long handle on it and the inevitable happened, his hand became caught in a roller and he lost the tip of a finger and grooving of the nail. To be more specific he suffered tip amputation, of the middle finger of the right hand and grooving of the nail of the forefinger of the right hand and of course, he's lost the touch sensation and suffered pain and so forth and will have ongoing difficulties. 
The matter is not quite so straightforward as might appear because an element of criticism can be directed against Mr Harris for being so unwise as to clean this machine while it was operating, and of course in the benefit of hindsight and sitting remotely from these factory floors, one could say well a person must be quite silly to attempt to do anything on a machine when it's going. Surely people would switch the thing off to make sure that nothing untoward happened. But it's my experience and no doubt the experience of Health and Safety in Employment in New Zealand, that employees' do not think like that. On a number of occasions I've had noted employees and workers taking short cuts. Wanting to get jobs done more quickly or whatever. Human ingenuity being what it is, someone somewhere will find a way of doing something dangerous. Not intentionally so, but as a result of human nature, danger is created. 
It seems to me that, and I've said this before, the Health and Safety in Employment Act has so many wide ranging provisions designed to eliminate that possibility as far as is humanly and practically possible to do that, so that people like Mr Harris will not be able, under any circumstances, to put their hand anywhere near a tooth roller on this machine while it's going and he did, so there has been a failure in my view, of the very high levels of responsibility placed on factory owners and employers. 
The fines that have been imposed for this type of thing of course must relate to those factors that I have outlined from Despar and what happens in other cases, where people lose the tip of a finger and so forth, can only be a very very general guide. What I think has emerged so far in my reading of the cases, and those that have come before me, is that the Courts have been prepared to allow a settling in period and the fines have been modest. $3,000, $4,000, $5,000 is a modest fine. Extremely modest when the maximum in this particular case is $50,000 and it may well be at the point in time, when the Courts are now going to ratchet up the level of fines again to ensure that factory owners and employers have had the benefit of a honeymoon period with the Act and that is no longer seen to be the case. That will force employers and factory owners and people of the like, works and all sorts of dangerous activities to re-double efforts to protect workers and particularly, workers against themselves so that there can be no possibility of people being injured through failure to do something and in my view, that time is fast approaching and Mr Bates would be well advised to consider that in future. 
I attach little weight to Mr Harris' actions in this matter for the reasons I have endeavoured to express. From time in memorial, workers have done this sort of thing and the obligation clearly in my view, is on the persons who can prevent that happening, namely the employer and the owner of the premises, the work premises. 
So I see it here, the culpability of the meat company, Asian New Zealand was to fail to have something in place which discovered that their machine had been altered in a dangerous fashion and again, with benefit of hindsight, one could say well every piece of machinery in the place should have been checked and double checked and something of that nature. 
Mrs Barber tells me now that, that more or less what I have indicated has been done, along with many other things to ensure the safety of people who work in the place, be they employees or contractors. Training courses have been put in place, the machine has been checked, the guard extended so that it, the two guards now mesh and cannot be lifted independently with the machine still running without it being switched off by the automatic device. 
I am impressed with the attitude of the company. It's plea of guilty and of course, it's co-operation and acknowledgement that things need to be done as described to me. 
I think that the days now of suggesting that employees were really culpable in this have gone. The obligation is, as far as this prosecution is concerned, is on the employer. It is tempting of course to say well the man did it himself, it's his fault not ours. That's not the thrust of the Act. The Act is there to protect people like Mr Harris and in those circumstances, I think that I can accept that a modest penalty is still appropriate for Asian New Zealand Meat Company Limited. Without wishing to hammer the point, it must be foreseeable that these things can arise and therefore a check should be carried out. Every possible hazard of any kind whatsoever has to be sought out, before it happens. 
The company will be convicted and fined $3,000 with Court costs $95 and solicitors fee of $500. $500 of that fine is to be paid to Mr Harris. 
As far as the other defendant is concerned, my remarks of course are equally applicable in a sense to Command Pacific and I approach sentencing on the basis, basically whilst the two companies are separate and have separate obligations, there is an inter-meshing of responsibility and culpability but I believe the primary responsibility lies with Command Pacific in failing to have it's employee, Mr Harris, properly supervised. 
One however has to ask the question, when does it become a time who supervises the supervisor of the supervisors and that must be a matter of degree. However this was, although a case where Mr Harris was called a leading hand, he was in fact an active person as leading hand and not high up in the hierarchy of the command structure as it were, of the defendant company. 
Having primary responsibility in my view, for what took place, there should be some distinction between the two companies that have been in Court today, but it will be relatively insignificant in view of the maximum penalty and again, whilst I think it's now time for these fines to be increased and due warning given, on this occasion the fine will be at the lower end of the scale. 
On information 4003 the company will be convicted and fined $4,000, Court costs $95 and the solicitors fee of $500. I order that, of that fine $1,500 is to be paid to the complainant, Mr Harris. 
On the other two charges, Command Pacific (NZ) will be convicted and discharged. Mr Bates may have back his photographs. 

From OSH Tracker

Table of Contents