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Safeguard OSH Solutions - Thomson Reuters

Safeguard OSH Solutions - Thomson Reuters



OSH Tracker

Health & Safety Inspector v ENZA Ltd (DC, 08/08/00)

OSH Tracker

Defendant:
ENZA
The need to identify hazards arising from tasks outside an organisation’s core activities has been underlined, after a cold store employee received severe brain injuries when he fell through a skylight. In the Nelson District Court on 8 August, ENZA Ltd pleaded guilty to a s6 charge and was fined $20,000 after seasonal supervisor Robert Fowler fell 5.4m while cleaning the gutter on a cold store’s canopy roof. He was awarded the total fine. The canopy ran the length of the cold store. In the middle of it was a row of profiled plastic skylights, with a gap between each skylight of less than a metre. Fowler was lifted onto the roof via caged forklift. A second forklift elevated a pallet containing four drums, into which he was to put the gutter debris - a journey requiring him to negotiate the narrow path between the skylights. No hazard-id had been carried out for this task, which was carried out only once a year. The company, said OSH, could have fitted safety mesh to the skylights, or covered them with a material sufficient to withstand a person’s weight. Judge David Ongley said the company had addressed issues relating to its core activities but had overlooked an occasional event. 
Industry:
Manufacturing
Sub-Industry:
Food, Beverage and Tobacco
Risk:
Fall from height
Harm:
Injury
Penalty Amount:
$20000.00
Reparation Amount:
$20000.00
Appeared in Safeguard issue 65

Judgment Text

NOTES OF JUDGE D A ONGLEY ON SENTENCE 
Judge D A Ongley
The defendant company has pleaded guilty to a charge under section 6 of the Health and Safety in Employment Act 1992 of failing as an employer to take all practical steps to ensure the safety of an employee Robert Fowler while he was at work on 17 November 1999. The defendant which is a Board trading as ENZA Fruit New Zealand International employed Mr Fowler as a seasonal supervisor. On 17 November he was engaged in cleaning out a gutter on a canopy roof over the load-out area of the cold store when he fell 5.4 metres through a skylight onto a concrete floor. He suffered severe head, neck and spinal injuries and is unlikely to return to any useful occupation. 
The canopy is a large one that runs the length of a cold store. It ran off into a gutter that had become blocked causing overflow of water and flooding. When the cause of the flooding was discovered the depot supervisor made arrangements for bins to be delivered for the muck to be cleaned from the guttering. The skylights were a trap. They had weathered to a stage where they became brittle. They are a corrugated profile plastic material, about 3 metres long and 1.43 metres wide with no means of support under them and no construction over the top to support any person walking across that area. That has now been remedied. At the time it would have been difficult, when carrying a load of the muck scraped out of the guttering, to negotiate the canopy without the risk of treading on part of the skylight. There were solid roofing strips of only 8 of a metre between each of the skylights. When the cleaning was about to start, a truck arrived for unloading, so the depot supervisor attended on unloading while Mr Fowler went up onto the roof. He had only been there a short time when the accident occurred. 
The hazard was already known to some degree. When the depot supervisor had been up on the roof a week or so before the accident to explore the reason for flooding, he had commented when he came down how close he came to nearly standing on a skylight. The cleaning of the gutters was undertaken from year to year but there had been no formal hazard identification for that particular incidental task, possibly because it was not a core task of the board. Because there was no formal hazard identification, no controls had been put in place and the hazard had not been discussed beforehand. It was not discussed on the morning when the work was to begin. 
The informant says, and it is not disputed, that the Board could have fitted safety mesh to the skylights before work begun, or could have covered the skylights with sufficiently rigid material to withstand the weight of a person walking across that area of the canopy. Safety mesh has since been fitted and the Board has since taken steps throughout its workplaces to ensure that an accident of this kind never happens again. It has imposed a ban on employees working on roofs and engages independent contractors instead. It has also placed safety netting over most of its skylights and has asked advice on appropriate safety equipment and processes. 
The considerations that this Court must take into account in imposing fines under this legislation have been enumerated in Department of Labour v De Spa & Co Ltd [1994] 1ERNZ 339, 343. The Prosecutor addressed those, beginning with the most important issue, which is the degree of the defendant's culpability. This accident was foreseeable at a workplace level. It is apparently common knowledge in the construction industry that plastic skylight material becomes brittle when it ages, and that even when new it cannot be regarded as a sufficiently strong fabric to support a person's weight. There is no dispute about that. Indeed there is no dispute about any of the fact issues in this case. The informant says that this is one of those hazards that was not glaringly obvious but was certainly readily foreseeable. 
As I have said, the hazard escaped the scope of the Board's ordinary safety policy, probably because it was an incidental activity. In the ordinary course of its work the Board does not have employees working at heights. It is active in pursuing a careful safety policy but had fallen into the trap of addressing its core activities and thereby overlooked this kind of occasional event that presented a hazard. At the workplace level the hazard had been informally identified. The supervisor knew that there was a problem, but events seemed to have sidelined that concern when it came to doing the job and at the same time allocating staff to other routine activities. It was then a typical oversight resulting in disastrous consequences, through what might have been regarded in general as excusable failure. It cannot be regarded in that way however within the context of the health and safety legislation responsibilities of the Board. 
It is a case where the corporate responsibility could not be assessed as being high because the Board had addressed its safety obligations conscientiously, but the breach at the workplace level has to be regarded as serious. In the context of a duty to identify and address risks there was a serious failure. It is a case where there was no contribution by the employer to the accident that happened. For purposes of imposing a fine therefore the defendant's culpability must be regarded as high. 
The second important consideration in sentence is the degree of resulting harm. In the present case that was extreme. Mr Fowler has been hospitalised since the date of the accident. I am told that he is presently at the brain injury rehabilitation unit at Burwood Hospital in Christchurch and his prognosis is extremely bleak. I will not read the harrowing impact statement. The consequences of the accident have been devastating. Mr Fowler has an extremely diminished quality of life and the accident imposes a grave burden on his wife and family. Without going into the details, this must be regarded as at least as serious as an accident resulting in a fatality. 
The other considerations can be dealt with briefly. The financial circumstances of the defendant are not in issue in this case. The attitude of the Board is of course creditable. In the course of the hearing Mr Chemis, counsel for the Board, did not quibble about any of the aspects that I have traversed and stated that the Board squarely accepts responsibility. A senior executive has attended at this Court from a distance. The Board has made payments for which it has no specific legal liability. Those are payments to the family in order to supplement the statutory earnings compensation payments, to assist with purchase of a car, and to cover some other expenses, totalling about $11,000.00. The response of the Board to address other risks on its premises has been thorough. A plea of guilty has been entered promptly. 
As for the need for deterrence, it has been submitted that there is no need for specific deterrence because the Board has an accident free record, at least it has no previous convictions under these provisions. The occurrence itself is said to have provided sufficient deterrence to the Board to avoid any further risk of a similar kind. Mr Chemis says that in the industry the imposition of fines is not necessarily an effective general deterrent over and above the identification of risks. Certainly that must be the case in respect of very responsible employers. The deterrent principle however remains and it is part of the jurisprudence that fines of a significant level have to be regarded as having a deterrent effect, even if it is difficult to detect exactly how that occurs. It was said in the De Spa judgment that “no room must be left in the community for the view that it is easier to wait until an accident happens, pay the fine and try to do better in the future”
The informant says that in the year ended 30 June 2000 the New Zealand Construction Industry had 17 fatal accidents of which about 70% involved falls from heights, and that the Department last year investigated over 270 serious harm injuries relating to falls from heights in New Zealand. Working on brittle roofing has been the subject of OSH guidelines since this occurrence. Paragraph 10.9 of Guidelines for the Prevention of Falls was published in its present form after the accident. The nature of the risk in this case was however known before the accident. The guidelines now state in paragraph 12.7 that skylights of matching roof profile arc a particular hazard as they may weather or may be painted and so match the surrounding roof areas. Although these were not painted they did present a particular hazard because the gaps between them were narrow and the task that Mr Fowler undertook entailed walking between guttering and bins, across the part of the roof that had a band of skylights separated by solid roofing strips of only .8 of a metre. 
The informant suggests that a fine of $20,000.00 would be appropriate. Fines imposed by this Court for accidents caused by falls range between $8,000.00 and $25,000.00. It is inescapable in this case that the amount of the fine must be influenced by the devastating consequences of the accident. That factor in sentencing has to be approached with care. This is not a compensation statute. It is legislation that is in part intended to provide deterrence for inadequate workplace safety protection in a regime where there is no direct personal or corporate liability for personal injuries. The structure of the system in New Zealand involves the parallel operation of the Health and Safety in Employment Act provisions and Accident Compensation provisions for injury. The Court must not impose a fine that is calculated in some way to provide compensation, but at the same time the Court has to take into account the degree of harm as one of several considerations in setting an appropriate fine. There is a good deal to be said in favour of the defendant for its general workplace safety and responsibility, and its response to the present accident which has been conscientious and constructive. There still remains however the fact that this is a case where the consequences were extreme and the fault at the workplace level cannot be minimised. 
I come to the conclusion that the fine of $20,000 that is suggested by the informant is realistic against a maximum fine of $50,000.00. It may be that high fines are more likely to be imposed where there has been a warning about the hazard in addition to a grave degree of culpability and consequences. This is not a case where any formal warning preceded the accident, but it is a case where there was a missed opportunity to address the hazard after it had been identified. Therefore, while endeavouring to avoid dealing with this as a compensation issue I find that the circumstances are such that a fine of $20,000.00 is appropriate. That fine is imposed along with Court Costs of $130.00 and Solicitors fees of $300.00. 
I consider also that this is one of those unusual cases where the whole of the fine should be paid to the victim, because the victim and family will never be compensated by what is available to them under accident compensation legislation. I want to make it clear that I have endeavoured to deal with these two steps quite separately, that is to say first the issue of a fine and secondly the question of payment under section 28 of the Criminal Justice Act. 

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