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Safeguard OSH Solutions - Thomson Reuters

Safeguard OSH Solutions - Thomson Reuters



OSH Tracker

Department of Labour v Colyer Mair Ltd (DC, 27/11/01)

OSH Tracker

Defendant:
Colyer Mair
A company charged under ss.6 and 13 of the HSE Act after an accident was told its decision not to sack the injured worker was not a mitigating factor when the company itself had admitted health and safety lapses. In the Napier District Court on 26 November, Colyer Mair Ltd, a tanner and fellmonger, was fined $3000 on each charge. The victim suffered fractures and crushing injuries to his hand when a metal bin slipped from a forklift. The injured man was not a certified forklift operator, but regularly drove them in the course of his work. At the time of the accident he was using another worker's forklift, and denied being told that the hook for lifting bins was unsafe. When he lifted one and stood beneath to empty it, it fell onto his hand. The defendant said the worker had breached his employment contract by using the forklift when told not to. It asked that its decision not to dismiss him be considered in mitigation, but the court refused to do so in view of the company's admitted failures. The victim was awarded $5000. 
Industry:
Manufacturing
Sub-Industry:
Textile, Clothing, Footwear and Leather Manufacturing
Risk:
Vehicle - mobile plant (eg forklift, platform)
Harm:
Injury
Penalty Amount:
$6000.00
Reparation Amount:
$5000.00
Appeared in Safeguard issue 73

Judgment Text

RESERVED DECISION OF JUDGE G A REA ON SENTENCING 
Judge G A REA
[1]
The defendant has pleaded guilty to two charges under the Health and Safety in Employment Act 1992. The first is a charge under s 6 that the defendant as an employer failed to take all practicable steps to ensure the safety of an employee, namely Graham Paul Tinkler, while at work, in that it failed to take all practicable steps to ensure that Mr Tinkler was not exposed to injury while emptying a rubbish bin. 
[2]
The second information charges that the defendant failed to take all practicable steps to ensure that Mr Tinkler while using a forklift at his place of work was adequately trained in the safe use of that forklift. 
[3]
The defendant company operates a tannery and fellmongery at premises situated at Thames Street, Pandora Napier. 
[4]
On 27 January 2001 Graham Tinkler, one of the employees of the business, suffered crushing of the tips of his index, middle and ring fingers and fractures of the index and middle fingers of his right hand as well as bruising to his right upper arm after he was struck by a strebba bin which is like a skip or a large rubbish bin. 
[5]
Mr Tinkler underwent operations to address the damage that he suffered to his fingers and in the second operation a small amputation of the right middle finger was required. 
[6]
The accident occurred when Mr Tinkler was using a forklift to empty a strebba bin. The strebba bin is a four-sided metal container with a detachable bottom that is hinged to enable it to drop open. It has a round metal bar on the hinge side at the top of the bin. The forklift had been modified by the addition of a hook ram system. The backrest of the forklift was removed and the hook ram system was bolted to the mast of the forklift. The hook was of flat mild steel, 100mm x 100mm which was previously bent with a lever after being heated. When emptying a bin, the hook is raised which connects with the round metal bar on the bin, lifting it. The bin is lifted, the bottom falls open allowing the rubbish to fall into another container. 
[7]
At the time of the accident Mr Tinkler positioned the strebba bin he was emptying over the end of a skip with the bin resting on the forks of the forklift. This raised the bin causing the bottom to drop open allowing the rubbish to slide out on an angle. Mr Tinkler then climbed off the forklift to scrape off some of the contents of the bin which had stuck to it. To do this he took a broken piece of timber out of the skip and started scraping the rubbish into the bin. As he did this he bumped the bin which fell off the hook landing on his arm and hand causing the injuries. 
[8]
A long handled rake was provided by the defendant to ensure that the operation carried out by Mr Tinkler could be done without the need for the worker to put any part of his arm or hand in the bin. It is not known by either the employer or the prosecuting authority why Mr Tinkler did not use the rake provided. 
[9]
According to the summary of facts the forklift had previously been used by another employee who asked Mr Tinkler to swap forklifts because the hook on the one that he was using was causing him problems. That employee says that he told Mr Tinkler that the hook was damaged and was not to be used for emptying bins. Apparently Mr Tinkler denies being told anything more than that there was a problem with the hook. 
[10]
Mr Tinkler reluctantly swapped forklifts but continued to use the one with hook problems to empty the rubbish bins. The hook had previously fractured and been welded together. According to the summary there had been several instances in the past where the hook had failed and bins had slipped off the hook. 
[11]
It is the case for the informant that the defendant should have taken more practicable steps to avoid injury to Mr Tinkler. The informant says that the defendant should have ensured that the hook ram system was certified by an engineer as being suitable for use in the emptying of strebba bins. It goes on to say that the defendant should have implemented a procedure for all employees that if plant or work practices were known or thought to be unsafe the use of the plant or practice was to cease. The informant also says there should have been some other safe method for disposing of rubbish. 
[12]
On the day of the accident Mr Tinkler operated the forklift which he did on a regular basis. Mr Tinkler had driven forklifts several years previously and at that time attended a formal driving course. However at the time of the accident he was not a certified forklift operator and he was not under supervision in accordance with the appropriate codes of practice. The informant asserts that Mr Tinkler was not adequately trained in the safe use of forklifts and he should not have been operating those machines at the time of the accident. 
[13]
In his submissions on behalf of the defendant Mr Madsen said that Mr Tinkler had been told not to use the forklift in question but had done so on his own initiative to get the job done. At the time of the accident Mr Tinkler had been employed by the defendant company for about 13 years and he was and is highly regarded by the company. Apparently he is enthusiastic about his work and is a person who uses his initiative. The tenor of Mr Madsen's submissions in this regard was that Mr Tinkler was over-enthusiastic on this occasion and by his own actions effectively exposed himself to risk. This submission was not put to me by Mr Madsen as a criticism of Mr Tinkler or as providing an excuse for the defendant company. 
[14]
Mr Madsen advised that the defendant had been fully cooperative with the authorities and had pleaded guilty to these two charges at an early opportunity. The defendant company has no previous convictions and following this accident extensive remedial action was taken by the defendant to reduce or eliminate the possibility of this sort of accident in the future. 
[15]
As Mrs Scott for the informant put it the culpability of the defendant company was regarded as at “the low end of the medium range”. Mrs Scott suggested that overall fines of $6,000 in total would adequately reflect the seriousness of the offending. 
[16]
For the defendant Mr Madsen accepted that the figure of $6,000 as total fines was within the appropriate range but he pointed to the positive features from the company's point of view with a view to minimising the overall penalty that should be imposed. 
[17]
In his submissions to me Mr Madsen suggested that it was a mitigating factor that the defendant had allowed Mr Tinkler to retain his employment despite the fact that in the company's view he had breached his employment contract by operating the forklift without the appropriate authority. I am unaware of what the employment contract says. However I do not consider that it can be seen as a mitigating factor that the defendant did not dismiss Mr Tinkler when in the end that same company has accepted that in terms of health and safety legislation it has not met the required standard as far as Mr Tinkler is concerned in the circumstances of this case. 
[18]
I have considered the principles contained in Department of Labour v de Spa & Co Ltd [1994] 1 ERNZ 339Has Cases Citing which are not known to be negative[Green] . I have also considered the schedule of penalties supplied to me by counsel for the informant. Having reviewed all of that material I consider that the level of fine suggested by Mrs Scott is appropriate. The defendant company will be convicted and fined $3,000 on each of the two charges and will be ordered to pay court costs of $130 in relation to each charge as well. $2,500 of each fine is to be paid to the complainant Mr Tinkler. 

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