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Safeguard OSH Solutions - Thomson Reuters

Safeguard OSH Solutions - Thomson Reuters



OSH Tracker

Department of Labour v Gisborne Stevedoring Services Ltd (DC, 22/06/99)

OSH Tracker

Defendant:
Matawhero Grain Company
MATAWHERO GRAIN COMPANY LTD was fined $6000 under s7 for failing to identify hazards, and another $5000 under s6 after a truck driver employee was injured while helping a forklift driver unload packets of beams from his truck. The man, whose leg was amputated below the knee, was awarded $5000. The forklift was positioned on the left of the truck while the driver was on the right. The forks extended past the left-hand set of packets and tipped over a middle packet, which fell onto the truck driver. (Gisborne DC, 22 June) See also Gisborne Stevedoring Services 
Industry:
Wholesale Trade
Sub-Industry:
Basic Material Wholesaling
Risk:
Vehicle - mobile plant (eg forklift, platform)
Harm:
Injury
Penalty Amount:
$11000.00
Reparation Amount:
$5000.00
Appeared in Safeguard issue 58
Defendant:
Gisborne Stevedoring Services
At the same hearing, GISBORNE STEVEDORING SERVICES LTD was fined $15,000 under s15 after the Matawhero Grain employee was injured by the actions of one of its staff, a forklift operator who lacked specific training in forkhoist operation. The company should have instructed its forklift operators to stop if the truck driver moved out of their line of sight, and had better-defined safe and unsafe areas marked.(Gisborne DC, 22 June) See also Matawhero Grain Company 
Industry:
Transport and Storage
Sub-Industry:
Services to Transport
Risk:
Vehicle - mobile plant (eg forklift, platform)
Harm:
Injury
Penalty Amount:
$15000.00
Reparation Amount:
$0.00
Appeared in Safeguard issue 58

Judgment Text

NOTES OF JUDGE A N MACLEAN ON SENTENCING 
Judge A N MacLean
Following the recording of guilty pleas in respect of charges against both Defendants brought under the Health & Safety in Employment Act 1992 and further following the receipt of written and oral submissions from Counsel for the Informant and Mr Dreifuss, Counsel for Gisborne Stevedoring Services Ltd and Mr Judd in person for Matawhero Grain Company Ltd which were all heard together, the Court is for convenience dealing with sentencing of both Defendants in the one document. 
The Charges 
Matawhero Grain Company. Ltd has pleaded guilty to offences under s 7(1)(a) and s 50(a) of the Act that “being an employer did fail to ensure there was in place effective methods for systematically identifying existing hazards to employees at work” and additionally under s 6 and s 50(a) that “being an employer did fail to take all practicable steps to ensure the safety of its employee namely Barry James Wilson while at work in that it did fail to take all practicable steps to ensure the said Barry James Wilson was not exposed to injury while unloading a truck.” 
The Defendant Gisborne Stevedoring Services Ltd was charged under s 15 and 50(a) of the Act that “being an employer did fail to take all practicable steps to ensure that Barry James Wilson was not harmed by the actions of its employee, namely Mahanga Huhu, while at work in respect of the unloading of a truck.” 
The Facts 
There is no material contest arising out of the summary of facts filed. Mr Wilson was an employee of Matawhero Grain Company Ltd who on 23 October 1998 suffered a severely crushed right leg requiring amputation below the knee when a packet of beams fell off the back of a truck on to his leg. The accident occurred when Mr Huhu, an employee of Gisborne Stevedoring Services Ltd was operating a forklift unloading the packets from the truck at the Nisshoe Iwai Dry Store. After Mr Wilson had opened the curtain-sided trailer, Mr Huhu commenced unloading on the driver's side and then switched to the left side. As he was doing this Mr Wilson pulled the curtain back towards the rear end of the trailer on the driver's side directly opposite the forklift being operated by Mr Huhu. As Mr Huhu picked up two packets of beams the forks of the forklift extended beyond these packets as he tilted and lifted them, causing the packet in the middle row to fail through the curtain striking Mr Wilson and knocking him to the ground. 
It was also common ground that the trailer had been loaded with three packets across the deck which were two packets high. A despatch note on Mr Wilson's person at the time of the accident had printed on the bottom that it was loaded this way but Mr Wilson had not noticed this and had therefore not told Mr Huhu. 
In so far as Gisborne Stevedoring Services Ltd was concerned, the thrust of the s 15 charge relating to failure to ensure there was no harm to Mr Wilson, the Informant submitted in the Summary of Facts that the steps necessary should have included: 
(a)
better communication of the make up of the load; 
(b)
a definition of safe and unsafe areas to work during loading and unloading and an instruction forbidding moving into or remaining in unsafe areas; 
(c)
an instruction that crane or forklift operators ensure they can see that other persons are in safe areas while loading or unloading is taking place. 
The informant pointed out that an “accident alert issued by the Occupational Safety & Health Service of the Department in January 1997 specifically highlighted the dangers of unloading and loading vehicles by forklift and the need to have a safe practice policy in place”. A copy of that alert in fact shows that the scenario outlined therein was virtually identical to what happened in this particular case. 
So far as the s 7 charge against Matawhero Grain Company Ltd was concerned, that was premised on the basis that the managing director of the Defendant company, Mr Denzil Judd admitted that he had not implemented a systematic identification system for hazards. 
The thrust of the s 6 charge was to repeat points made with respect to the s 15 charge against Gisborne Stevedoring Services Ltd although it was noted that Gisborne Stevedoring Services Ltd had identified forklift operations as a hazard although the operations manager of that company had confirmed that there were no procedures in place specifically for unloading cargo/product. 
Each of the charges brought against the two Defendant companies carries a potential fine of $50,000. 
The informant with respect to the charges against Matawhero Grain Company Ltd went through the by now well known factors with relation to penalty set out in Department of Labour v de Spa & Co. Ltd (1994) ERNZ 339 and submitted that the culpability of the company was high because Mr Judd had not implemented an effective or systematic identification of hazards with a view to then eliminating them and regularly assessing them although it was noted that he had said that he did discuss hazards with his drivers. Generally it was asserted the risk of an accident was high. Further that the Defendant had not considered any of the practicable steps suggested as remedial or preventative and if that had been done i.e. a safe practice policy implemented, the accident could have been prevented. As to the proposition that the circumstances were unusual and the load was one that was carried only a few times a year, the point was made that that did not alter the fact that the driver should remain in a safe area during unloading and that it was part of the employer's duty to consider that question as a primary consideration in a transport business. The Informant also suggested that speed perhaps was a factor in the accident because of the observation of the driver to the inspector that he was working opposite the forklift to speed up the process. 
So far as degree of harm is concerned, the Informant suggested that clearly what happened viz amputation of the right left and permanent disability amounted to a serious injury and clearly serious harm. The Informant had no information on the Defendant's financial circumstances. 
So far as remorse, co-operation and remedial action is concerned, it was noted by the Informant that Mr Judd has expressed remorse and that there has been full co-operation and remedial procedures now implemented coupled with practical assistance and rehabilitation by holding Mr Wilson's job open and allowing him to return to work part-time. 
The Informant accepted that the Defendant was entitled to a credit for an early guilty plea and with regard to deterrence saw no need for particular deterrence in the specific case generally accepts that there was not any “callous disregard for employee safety”. Generally the Informant noted that with regard to general deterrence the Act requires employers to be pro-active in identifying hazards and that in this case full consideration of the hazard only happened after the accident to Mr Wilson so that there was a need for “general deterrence in the transport industry to remind employers of their continuing responsibilities”
It was noted that the Defendant company had no previous convictions and that generally the remedying of the hazardous aspect did not require any elaborate construction of guarding or the like but “rested simply on a basic procedure that cost nothing to implement”
The Informant referred the Court to the cases of Tanner Sawmills Ltd involving similar charges where the Thames District Court on 1 7 December 1996 on guilty pleas fined that Defendant $10,000 on each charge and directed that it all be paid to the employee. Also to Ansett New Zealand Airfreight Ltd where the District Court at Otahuhu on 2 February 1996 again under similar charges with three guilty pleas awarded $20,000 on each charge and directed that of the total $60,000, $40,000 be paid to the victim. 
Mr Judd representing the company commented on a Victim Impact Report, both initial and updated, that had been received and noted that he had provided $500 cash to the employee's partner, arranged for Sky television channels and 5 years subscription in advance and pointed out that his employee should have been well aware of the type of load he was carrying and noted that he should be given credit for the fact that he had kept the job open. He noted further that his company was “under considerable financial pressure and any fines imposed could ultimately lead to the liquidation of the company and the loss of jobs for Barry Wilson and employees”
Whilst he conceded that he had nothing written down prior to this accident in terms of identifying hazards and specifically drawing them to his employee's attention, he had put his employees through safety courses and now has written procedures in place. He was critical of Occupational Safety & Health for what he described as being insufficiently “pro-active” in terms of the accident alert referred to earlier, making the point that for a small company such as his own, his view was that that information should have been specifically sent to him. 
Gisborne Stevedoring Services Ltd 
With relation to submissions on penalty for this Defendant, the Informant again submitted that the culpability was high and that the accident was foreseeable and that none of the simple practical steps that could have prevented the accident from happening had been taken. 
So far as the proposition that the circumstances were unusual, it was submitted that that was a substantially irrelevant consideration and whilst it might not have been common practice for the truck to be loaded the way it was, the company should not have commenced unloading without obtaining the necessary information from the driver. As the Informant put it “simple procedures on communication could have remedied this”. It noted also that Mr Huhu had no specific training as a forklift operator as opposed to training in the use of cranes and general port procedures and that generally the Defendant had a legal duty to seek out the hazards and deal with them. The Informant also submitted that in the circumstances of this accident, the harm was preventable and noted that in its view the company was allowing forklift drivers who had not completed safety training to operate and “simply left it to chance that operations would proceed without incidents in circumstances that were by their own admission highly unusual”. It noted further what it said was an aggravating feature of the case in that the business of loading or unloading was a “core function of a stevedoring company” so that “at the bare minimum safety procedures in this area of the company's operation should have been uncompromisingly in position”
The same comments with regard to the degree of harm as with the other charges were made and so far as remorse, co-operation and taking remedial action was concerned it was noted that Mr Huhu now holds the appropriate OHS Certificate for forklift driving and that on the day of the accident an immediate procedure was put in place after the ambulance had left to the following effect: 
1.
The truck driver had to be in position to be seen at all times by the forklift driver (preferably near the cab) and that: 
2.
If the forklift driver lost sight of the driver he was to stop until the driver was in sight again. 
It noted further that since the accident and the implementation of that simple remedial procedure two further complaints about work practices in respect of failures to adhere to those procedures had been made in February and March of this year. 
So far as credit for guilty plea was concerned, that was accepted and so far as deterrence was concerned, the Informant noted that for this Defendant there was a need for particular deterrence, particularly in light of the continuing alleged failure to adhere to simple, safety procedures. As the Informant put it “the Company had been put on notice about its unsafe work practices and they must be pro-active in ensuring that work continues safely.” 
The Informant noted also the need for general deterrence i.e. a message to the industry as a whole in relation to the need to manage risks associated with the use of forklifts with particular regard to loading and unloading goods. Also the need to ensure that competent trained operators are used. The Informant was unaware of any previous relevant convictions and generally noted that the steps required did not involve any cost to the Defendant. 
General Comments on Penalty Range 
Generally with respect to both Defendants, the Informant suggested that penalties in the region of $15,000 on each charge seemed to be appropriate. 
Mr Dreifuss on behalf of Gisborne Stevedoring Services Ltd filed written submissions and spoke to them. He made the following points in mitigation: 
1.
The company acknowledged it had not taken all practicable steps to eliminate the hazards but while the company may not have met the higher threshold required, it was suggested the accident occurred as a result of a number of unusual and combining factors; 
2.
That the loading of the trailer was unusual; 
3.
That it was Mr Wilson by his actions who put himself out of sight; 
4.
The despatch note had not been given to Gisborne Stevedoring and that the forklift driver was therefore not aware of the particular loading of the trailer. He noted that it was apparently common practice for the party loading the trailer (in this case another company altogether) to telephone representatives from Gisborne Stevedoring to advise them of unusual packing but no such warning was given; 
5.
Mr Dreifuss generally on behalf of his client accepted culpability and accepted that whilst it did not at the time have a written procedure in place it had taken a number of steps to safeguard against accidents including: 
(a)
The company's health and safety policy contained an extensive section on the use of forklifts which was developed with the assistance of a health and safety consultant engaged by the company; 
(b)
The company had since May 1996 sent a total of 20 forklift drivers to an OSH approved course in forklift operation and that employees had been instructed to wear high visibility clothing, informed of the speed limits and other potential dangers of operating a forklift; 
6.
Mr Dreifuss noted no particular financial concerns but made the general proposition that “merely because it offended as a reasonably large employer this should not be reason enough to impose a large fine when in the same circumstances a smaller fine would be imposed on a smaller concern”
7.
Mr Dreifuss further submitted that the company had shown concern and a genuine effort to improve and that subsequently the company had been passed by Standard New Zealand to become an accredited employee and that generally had “shown commitment to health and safety in its relationship with OSH in its efforts to seek professional advice and to obtain OSH achiever status”
8.
He made the general comment that following the accident the company has fully co-operated with OSH and strengthened its policy and procedures and with regard to the two follow-on incidents referred to in the Informant's submissions that those arose through failure to follow instructions by employees; 
9.
He suggested generally that there was little need for deterrence. 
In the Court's view as a general proposition in terms of causation it is difficult to differentiate between the two Defendants. Each it could be fairly said was engaged in core activities — Gisborne Stevedoring unloading goods at dock and Matawhero Grain in transporting goods for unloading to dockside. 
The Court refutes Mr Judd's submission that OSH had failed in some way to carry out its responsibilities in terms of pro-actively drawing to his attention the accident alert. It needs to be firmly and quite categorically said that this Act has been in force for long enough now that employers involved in activities such as this have a high obligation to seek out hazards and to actively obtain the necessary information and implement the necessary procedures. Accordingly it is not in the Court's view a mitigating factor at all that OSH failed to single out Mr Judd specifically, but more an aggravating factor that he failed to fully inform himself of applicable safety concerns. 
A number of concerning aspects about Mr Judd's company's exercise of responsibilities in this area arise as a result of this incident. Whilst in the Court's view the culpability is high, in terms of overall fairness it is the Court's view that on a general assessment the division of burden of responsibility should not fall equally between the two Defendants and that should be reflected in the fines imposed. 
It needs to also be emphatically said that by now all employers should be aware of the need to have a written policy in place and it is not sufficient to simply, when something happens, to try and explain away the situation by saying that safety courses had been attended to and that employees should have been responsible or OSH should have done more. A general message needs to be sent to all employers again that it is incumbent on an employer to have written policies in place. Accordingly in the Court's view a fine of $5,000 is appropriate with respect to the charge under s 7 and $6,000 under s 6. That reflects an allowance for the fact of an early guilty plea and remorse otherwise the combined fines would have reached a total of $15,000 apportioned under the same ratio. There will be counsel's costs of $130 on each charge and solicitor's costs of $100 also on each charge. 
With respect to the single charge against Gisborne Stevedoring Services Ltd, again the Court accepts the culpability is high and the apportionment of financial liability should be slightly greater than against Matawhero Grain Services Ltd. The mistakes made i.e. having an insufficiently trained driver and not ensuring that appropriate safeguards were taken to check the details of the load lead directly to the accident and in the Court's view means that a $15,000 fine after allowing a discount of $5,000 for early guilty plea, is appropriate. Again solicitor's costs of $100 and Court costs of 130 apply. 
I am also satisfied that the provisions of s 28 of the Criminal Justice Act should have application here and it is appropriate that all of the fines be paid to the employee Mr Wilson. 

From OSH Tracker

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