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Safeguard OSH Solutions - Thomson Reuters



OSH Tracker

Department of Labour v Screening and Crushing Systems Ltd (DC, 11/05/01)

OSH Tracker

Defendant:
Gerard Paul Moore
A painter working from a scissor hoist died when his head was caught between a moving gantry crane and the frame of the building he was painting. In the Christchurch District Court on 11 May, Gerard Paul Moore was fined $15,000 - reduced to $9000 on appeal - under s.19 following the death of Mark Goggin, while Moore's employer, Screening and Crushing Systems Ltd, was fined a total of $20,000 on three charges. Earlier, on 27 April, Goggin's employer, Lance Darryl Pengelly, trading as Lance Pengelly Painters, pleaded guilty to a charge under s.6 and was fined $7500. Goggin and Pengelly were painting welding seams near the rails of the gantry crane at Screening and Crushing Service's new premises. Moore, the machine shop manager for SCS, began using the crane to shift a load of steel without checking the path was clear, though he knew painters were at work in the area. The court found that SCS had made no attempt to co-ordinate the work of contractors on site. It had also failed to protect the painters by locking out the crane while they were at work. It was fined $10,000 under both ss.15 and 18, and convicted and discharged under r.10(2) for operating a crane that did not have a certificate of inspection. Pengelly's conviction stemmed from his inappropriate use of equipment. A step ladder had previously been mounted on the hoist platform, even though its use did not appear to be associated with the fatality. Rollers with extension poles would have made it possible to paint around the rails without leaning into the path of the crane. Three quarters of SCS's fine, and two-thirds of Moore's, was divided between the family and fiancee of the deceased. 
Industry:
Construction
Sub-Industry:
General Construction
Risk:
Vehicle - mobile plant (eg forklift, platform)
Harm:
Death
Penalty Amount:
$9000.00
Reparation Amount:
$6000.00
Appeared in Safeguard issue 70
Defendant:
Screening and Crushing Systems
A painter working from a scissor hoist died when his head was caught between a moving gantry crane and the frame of the building he was painting. In the Christchurch District Court on 11 May, Gerard Paul Moore was fined $15,000 - reduced to $9000 on appeal - under s19 following the death of Mark Goggin, while Moore's employer, Screening and Crushing Systems Ltd, was fined a total of $20,000 on three charges. Earlier, on 27 April, Goggin's employer, Lance Darryl Pengelly, trading as Lance Pengelly Painters, pleaded guilty to a charge under s6 and was fined $7500. Goggin and Pengelly were painting welding seams near the rails of the gantry crane at Screening and Crushing Service's new premises. Moore, the machine shop manager for SCS, began using the crane to shift a load of steel without checking the path was clear, though he knew painters were at work in the area. The court found that SCS had made no attempt to co-ordinate the work of contractors on site. It had also failed to protect the painters by locking out the crane while they were at work. It was fined $10,000 under both ss15 and 18, and convicted and discharged under r10(2) for operating a crane that did not have a certificate of inspection. Pengelly's conviction stemmed from his inappropriate use of equipment. A step ladder had previously been mounted on the hoist platform, even though its use did not appear to be associated with the fatality. Rollers with extension poles would have made it possible to paint around the rails without leaning into the path of the crane. Three quarters of SCS's fine, and two-thirds of Moore's, was divided between the family and fiancee of the deceased. 
Industry:
Construction
Sub-Industry:
General Construction
Risk:
Vehicle - mobile plant (eg forklift, platform)
Harm:
Death
Penalty Amount:
$20000.00
Reparation Amount:
$15000.00
Appeared in Safeguard issue 70

Judgment Text

ORAL JUDGMENT ON PENALTY OF JUDGE T M ABBOTT 
Judge T M Abbott
Introduction 
Screening and Crushing Systems Limited (to which I shall refer as “SCS”) and Mr Gerard Moore face three charges and one charge respectively under the Health and Safety in Employment Act 1992 (to which I shall refer as “the Act”), all of which result either directly or indirectly from what can only be described as an extremely tragic workplace accident which occurred on 30 June 2000. 
The first charge against SCS alleges a breach of section 15 of the Act, the allegation being that, as an employer, it failed to take all practicable steps to ensure that no action or inaction of any employee harmed any other person, in that it failed to instruct its employees not to operate a gantry crane at its premises at 544 Johns Road, Christchurch while the crane rails were being painted. 
The second charge against SCS alleges a breach of section 18(1)(a) of the Act, the allegation being that, as a principal, it failed to take all practicable steps to ensure that no employee of a contractor or subcontractor was harmed while doing work that the contractor or subcontractor was engaged to do, in that it failed to co-ordinate the work of its employees with that of the contractors at the Johns Road premises. 
The third charge against SCS relates to non-compliance with regulation 10(2) of the Health and Safety in Employment (Pressure Equipment, Cranes, and Passenger Ropeways) Regulations 1999 in respect of its failure to take all practicable steps to ensure that the gantry crane at the Johns Road premises was not operated unless it had a current certificate of inspection. 
Mr Moore, who is SCS's machine shop manager, faces a charge under section 19(b) of the Act, the allegation being that, as an employee, he failed to take all practicable steps to ensure that no action or inaction on his part caused harm to any other person, in that he failed to check that the path of the gantry crane at the Johns Road premises was clear before operating the crane. 
The Guilty Pleas and the Pengelly Prosecution 
Both defendants have pleaded guilty to the charges which it and he respectively face. However, initially not guilty pleas were entered by both defendants, and the charges were then adjourned to a status hearing on 1 May 2001. At that status hearing the pleas were changed to guilty, and the sentencing hearing today has duly followed. 
In all the circumstances, although there must be a significant degree of credit for the guilty pleas, the credit cannot be as great as that which would have been appropriate if not guilty pleas had originally not been entered. 
In that respect, the situations of the present defendants differ somewhat from that of Mr Pengelly, who was the employer of the man who was killed in the accident on 30 June 2000. 
On 29 March 2001 Mr Pengelly pleaded guilty to the charge which he faced, which alleged a breach of section 6(b) of the Act, the allegation being that, as an employer, he failed to take all practicable steps to ensure that his employee, Mr Goggin, was not exposed to hazards arising out of the use of the gantry crane at SCS's premises in Johns Road. 
On 27 April 2001 Mr Pengelly was fined $7,500 on that charge. However, it is appropriate to note at the outset that in fixing that fine I took specific account of Mr Pengelly's modest financial circumstances, as put before me through his counsel, and of the extremely traumatic consequences of the accident for him, that being in the context that the accident had resulted in the death of not only an employee but also a friend. 
The Facts 
SCS is a company which manufactures aggregate screening and crushing equipment. Last year it arranged for a new building to be constructed at a property at 544 Johns Road, Christchurch, that being to cope with an expansion of its business activities. 
By June 2000 the new building was in the final stages of completion, and SCS was also in the process of transferring its manufacturing operations from its old premises. However, as is common in such circumstances, several contractors, including the builders and the painter, Mr Pengelly, were still engaged in working on the new building as SCS was moving in. 
As is apparent from both the photographs and the plan of the building which have been provided by the informant, the new building at Johns Road is a substantial purpose-built facility. The building comprises a large open area, one end of which is a workshop and the other end of which is a machine shop. Adjacent to the machine shop, but separated from it by a wall, is space for the storing of spare parts and equipment, and the building also has facilities of an amenity nature. 
The principal item of machinery in the machine shop and workshop area is a large gantry crane, which runs on rails and can be manoeuvred up and down the building. In addition, loads can be manoeuvred across the building before then being transported in one direction or the other, either to the workshop area or to the machine shop area as appropriate. 
The gantry crane is controlled by an operator on the floor. The operator uses a pendant or hanging control, which is suspended from the crane and can be seen in the second of the informant's photographs, and the operator in effect follows the crane as he manoeuvres it within the building. 
Mr Pengelly, who trades under the name Lance Pengelly Painters, was engaged to carry out painting work in various areas of SCS's new building. There is some issue in the present context as to the precise contractual arrangements, as to whether Mr Pengelly was a subcontractor to the builder or a head contractor to SCS. 
However, even if Mr Pengelly was only a subcontractor, in my view that is of limited significance, that being because it is clear that by 30 June 2000 SCS was in effective control of the new building. Indeed, the additional painting work which Mr Pengelly and his employee, Mr Goggin, were undertaking at the time of the accident was being carried out at the specific request of SCS's managing director, Mr Court, in effect as work which was additional to that which was the subject matter of the initial painting contract. 
That additional work involved painting the welds at joins between the portal frame and the crane rail of the gantry crane. SCS contends that the additional work involved painting only the underside of the crane rail, as shown in the second of the two photographs which Ms Lindsay has put before me, that being for aesthetic reasons. However, whether or not Mr Pengelly went beyond the terms of his brief, as it might be put, is again in my view of little significance in the present context. 
On 28 June 2000, two days prior to the accident, Mr Pengelly and Mr Goggin commenced the painting of the crane welds. They began that work at the southern end on the western side of the new building, in other words in the workshop area. To reach the welded joins they used a scissor hoist of the type which is commonly known as a cherry picker, which can be seen in several of the photographs which have been put before me by the informant and in the first of the defendant's photographs. It appears that the scissor hoist belonged not to either Mr Pengelly or SCS but to the electrical contractor who was engaged in completing the electrical work in the new building. 
By the end of the day on 28 June Mr Pengelly and Mr Goggin had apparently been able to paint some distance along the western frame of the crane. However, they were unable to continue that work on the following day, 29 June, that being because the electrical contractor required the scissor hoist for his own use. 
On 30 June Mr Pengelly and his employee, Mr Goggin, again resumed painting the gantry crane welds. However, it appears from Ms Lindsay's submissions that during the first part of that morning Mr Pengelly and Mr Goggin were painting in the stores area of the building, which, as I have said, was separated from the main workshop area by a solid wall. To do that work Mr Pengelly and Mr Goggin were using the scissor hoist, that being in terms of the permission which had been given to them, initially by Mr Court. 
It also appears that on the morning of 30 June there was a conversation between Mr Pengelly, Mr Court and Mr Moore in the stores area, during which Mr Pengelly mentioned that he would be using the scissor hoist to continue painting the crane welds later in the day. It appears that Mr Moore's response to that advice was to ask Mr Pengelly to see him when they moved back into the workshop from the stores area, although that was apparently because Mr Moore wanted to use the scissor hoist himself to check the gantry crane. 
However, it appears that, when Mr Pengelly finished the painting in the stores area, he moved back into the workshop area with the scissor hoist, without first speaking to Mr Moore. 
As Mr Pengelly and Mr Goggin then continued painting the gantry crane welds, a truck arrived at the middle entrance door on the western side of the building. The truck delivered a steel rack, which can be seen in the second and third photographs which have been put before me by the informant. 
Mr Moore then used the gantry crane to unload the steel rack from the truck and to manoeuvre it across the building, in other words from west to east. That manoeuvre, which involves a load being transported across the width of a gantry crane, is apparently known as “trolleying”, and Mr Moore's purpose in trolleying the steel rack across the building was to take it out of the way of the contractors and other workmen who were working on the western side of the building. 
Mr Moore then began to manoeuvre the gantry crane in a southerly direction, in other words along the building. However, the crane and its load had travelled only a very short distance when the crane carriage came into contact with Mr Goggin's head. 
At that precise point of time Mr Goggin was apparently leaning over the crane rails to paint a weld on the gantry frame. The effect of the impact was to crush his head between the crane and the frame, with the consequence that he suffered fatal injuries to his skull and his brain. As I said in my judgment on penalty in Mr Pengelly's case, one can only express the hope that Mr Goggin did not know what hit him. 
The Relevant Sentencing Factors 
As counsel have said, the leading case regarding the relevant factors which should be taken into account when imposing penalty for offences against the Act remains Department of Labour v de Spa & Co Ltd [1994] 1 ERNZ 339Has Cases Citing which are not known to be negative[Green] 
However, although that case remains relevant in respect of issues of principle, it must be borne in mind that, as it was decided during the honeymoon period of the Act, as it is sometimes described, de Spa is certainly no longer good authority in respect of the appropriate levels of financial penalties. 
In de Spa the High Court (Tipping and Fraser JJ) identified nine relevant factors which should be considered by a judge who is required to impose penalty for an offence against the Act. However, the Court emphasised that the factors which it listed in its judgment were in no sense an exhaustive list. 
The nine factors which were specifically mentioned by the Court in de Spa were the following: 
Firstly, the degree of culpability which was involved in the offence in question, which the Court said must be assessed by a careful appraisal of the circumstances in which the breach of the Act occurred. 
Secondly, the degree of harm which resulted from the breach. 
Thirdly, the financial circumstances of the offender. 
Fourthly, the attitude of the offender, with particular regard to factors of remorse, co-operation with the authorities, and the taking of remedial action. 
Fifthly, any plea of guilty. 
Sixthly, the need for deterrence, both particular and general. 
Seventhly, the possible relevance of section 28(1) of the Criminal Justice Act, which provides that, where any act which constitutes an offence has resulted in physical or emotional harm to a victim, part or all of the fine may be awarded to the victim by way of compensation. 
Eighthly, the safety record of the employer, in which respect the Court commented that the absence of previous relevant convictions would be best viewed as the absence of an aggravating factor. 
Finally, any other relevant factors, in which respect the Court again emphasised that its list was not intended to be exhaustive. 
As I have said on previous occasions, it is important to bear in mind that the section 28(1) factor relates not to the assessment of the appropriate quantum of any fine but rather to its destination. It follows that it would therefore be quite wrong to artificially inflate a fine so as to provide some means of compensation to an injured employee or to the dependants of an employee who suffers fatal injuries in a workplace accident. 
From that perspective, it is somewhat unfortunate, with respect, that in de Spa the High Court included the section 28(1) factor in its list of the factors which it said would be relevant in determining the appropriate level of a penalty for a breach of the Act. 
Returning to the present case, I propose to deal with the respective positions of SCS and Mr Moore separately, but in each case by reference to the de Spa factors. I shall deal with SCS first. 
The Relevant Factors — SCS 
The first de Spa factor is of course the degree of culpability which was involved in the offence. 
In his written submissions Mr Ruane has contended that SCS's culpability was in the serious range, whereas Ms Lindsay has submitted that its culpability was in the medium range. In his oral submissions this morning Mr Ruane has acknowledged that SCS's culpability might better be viewed on the basis for which Ms Lindsay has contended. 
In my view that concession could be seen as somewhat charitable, that being for the following reasons. 
Firstly, as I have already mentioned, it is clear that by 30 June 2000 SCS was in control of the new building. Indeed, as I noted during submissions, a charge under section 16 of the Act against SCS as a person in control of a place of work would have been apposite, either in addition or as an alternative to the two charges which it faces in respect of the accident. 
Secondly, it is apparent that it was a direct arrangement between Mr Court and Mr Pengelly which resulted in Mr Pengelly undertaking the painting of the crane welds. 
Thirdly, the gantry crane was SCS's machinery. However, it is clear from all the information which is before me that SCS failed to take or implement any measures to ensure that the crane could not be operated while contractors, and in particular Mr Pengelly and Mr Goggin, were working in the area where the crane could be operated and/or in its path. It would have been a simple matter to ensure that the gantry crane was isolated or locked out while Mr Pengelly and Mr Goggin were using the scissor hoist to paint the crane welds, but no such precautions were in place. 
Fourthly, although there may have been a conversation between Mr Pengelly, Mr Moore and Mr Court regarding the logistics for the morning of 30 June, it is clear that there was no reference during that conversation to the gantry crane being isolated or locked out when Mr Pengelly resumed painting the crane welds. 
Finally, no such precautions had been in place two days earlier, on 28 June, when Mr Pengelly and Mr Goggin used the scissor hoist to paint the first section of the crane portals on the western side of the building. 
In my view, taking all factors into account, SCS's culpability in respect of what occurred on 30 June 2000 was, at the very least, at the high end of the medium range. 
In respect of the second de Spa factor, the degree of harm which resulted from the breach of the Act, I need say nothing more than that a workplace fatality is of course the most serious type of harm which can result from such a breach. 
The third de Spa factor, the financial circumstances of the offender, has not been the subject of specific mention by Ms Lindsay in her submissions, and I intend to proceed on the basis that SCS is in a position to pay a fine at the appropriate level. 
The next de Spa factor relates to issues of remorse, co-operation and remedial action. 
It is clear that these issues all sound in SCS's favour. In particular, there is no suggestion whatever that SCS was other than fully co-operative with the informant and the police in respect of their enquiries. Furthermore, the letter from Mr Court dated 10 May 2001, which is annexed to Ms Lindsay's submissions, also clearly records his and his company's sincere and deepest regret in respect of the accident which befell Mr Goggin on 30 June, and in that letter Mr Court also refers to the steps which SCS has taken to improve its health and safety systems. 
In respect of the guilty plea factor, I do not intend to repeat what I have already said about that issue. 
The next de Spa factor relates to issues of deterrence. 
I accept immediately that there is no issue of individual deterrence in the present case, that being because of the attitude of SCS and of Mr Court in particular, to which I have already referred. Furthermore, as Ms Lindsay has said, SCS has to operate its business from a building in which there is a daily reminder of the accident. 
However, having said that, the factor of general deterrence is nevertheless relevant. As the High Court said in de Spa (at page 346): 
“Deterrence for present purposes requires a fine at a sufficient level to encourage other employers to take seriously their obligation actively to seek out hazards and to deal with them. 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 and do better in the future. ”
The penultimate de Spa factor relates to the safety record of the offender. 
Ms Lindsay has advised me that the tragic accident which befell Mr Goggin on 30 June 2000 was, and still is, the first serious harm accident in SCS's history. As she has put it in her submissions, SCS has otherwise had an exemplary safety record, which is a substantial achievement for a company which deals with heavy construction equipment. 
In respect of the “catch-all” factor, it is important to emphasise, at the risk of repetition, that the lack of any clear demarcation of responsibility and the lack of a clear set of precautionary measures relating to the use of the gantry crane while people were still engaged in construction work in the new building were factors which made human error a very real risk or likelihood. In other words, this tragic accident could have been prevented if there had been a clear arrangement in place. Instead, it was almost a case of the right hand not knowing what the left hand was doing, in which context “right hand” and “left hand” refer to the various persons who were involved in working in the building at the time. 
Decision — SCS 
In my view, taking into account all relevant factors which relate to the charges against SCS, the appropriate total fine in its case would be in the sum of $20,000. 
On each of the two charges which specifically relate to the accident which occurred on 30 June 2000 SCS is fined $10,000, with orders for court costs of $130 and a solicitor's fee of $250. 
Ms Lindsay has confirmed that SCS and Mr Moore do not take issue with the application of section 28(1) of the Criminal Justice Act in the present case. On each of those two charges there are therefore orders for payment of $3,750 of the fine to Mr Goggin's parents and of the same amount to Mr Goggin's fiancée, Miss Middlewood. In other words, a total of $15,000 of the total fine of $20,000 is to be paid to the victims. 
In respect of the charge relating to the operation of the gantry crane without a current certificate of inspection, it must be noted that SCS's failure to obtain a certificate of inspection for the gantry crane before operating it was in no sense causative of the accident which occurred on 30 June 2000. In my view that offence, while more than technical, should not result in a penalty additional to those which I have already imposed. 
On that charge SCS is therefore convicted and discharged. 
The Relevant Factors — Mr Moore 
In his written submissions Mr Ruane has contended that Mr Moore's culpability was in the serious range, while Ms Lindsay has submitted that his culpability was in the low range. 
That submission by Ms Lindsay was made against the background of a summary of Mr Moore's extensive experience in the use of gantry cranes, not only in New Zealand but also in Australia in particular. Ms Lindsay has also referred to the circumstances of Mr Moore's conversation with Mr Pengelly earlier in the morning of 30 June and to his consequent lack of appreciation that Mr Pengelly and Mr Goggin could have returned to the workshop area. 
As Ms Lindsay has put it in her submissions, Mr Moore noted the contractors' vehicles which were in the vicinity of the scissor hoist when he undertook the manoeuvring operation with the gantry crane, but he did not notice the cherry picker. Ms Lindsay has emphasised that Mr Moore also took steps to ensure that the path of the crane was clear before using it to move the steel rack, in which context he noted that there were some workers further down the building, in respect of whom precautionary action would be required. However, as Ms Lindsay has put it, Mr Moore now realises, with the benefit of hindsight, that there was one further precaution which he could have taken, which was to look up at the crane rails. 
While dealing with this issue, I should mention that in her submissions Ms Lindsay has also contended in effect that Mr Pengelly and Mr Goggin should have been aware that the crane was very close to them, that being in the context of the scene which is shown in the first of the photographs which she has put before me. The doorway to the right of that photograph is the doorway through which the truck with the steel rack entered the building, and the scissor hoist is apparently in the position in which it was at the time of the accident to Mr Goggin. 
In my view that submission overlooks the fact that Mr Moore was the person who was operating the gantry crane. The responsibility for determining that the gantry crane could be manoeuvred safely with its load, either further across the building or along the building, rested solely with Mr Moore. 
Furthermore, Mr Moore apparently took precautions to ensure that the path of the steel rack was not impeded, in particular by instructing another employee to move a forklift out of the way. That is clear evidence that, as his experience suggests that he would be, he was fully aware of the importance of ensuring that the crane and its load could be manoeuvred without causing any risk or danger to anyone else who was in the building. 
However, as I have mentioned, the discussion of the arrangements between Mr Moore and Mr Pengelly earlier in the morning did not involve any reference to the crane being locked out when Mr Pengelly and Mr Goggin returned to the workshop. In my view that meant that it was doubly important for Mr Moore to check the position before he used the crane, particularly because he was aware that Mr Pengelly intended to return to the workshop during the morning. 
Finally, it must be remembered that, with his significant experience, Mr Moore was not what could be described as a mere employee. He was the manager of SCS's machine shop, and in that capacity he had supervisory control over the machine shop staff. He was apparently in the second tier of SCS's supervisory management, and as such he was responsible directly to the managing director, Mr Court. 
In my view, taking into account all relevant factors, Mr Moore's culpability in respect of what occurred on 30 June 2000 was in the high range. 
In respect of the other de Spa factors, what I have already said in respect of SCS also generally applies in respect of Mr Moore. 
Firstly, Ms Lindsay has confirmed, in response to an enquiry from me, that Mr Moore is in a financial position to pay a fine, although no further details in that respect have been provided. 
Secondly, it is clear from the letter from Mr Moore dated 10 May 2001, which is also attached to Ms Lindsay's submissions, that he is sincerely remorseful for the accident in which Mr Goggin was killed. In the second paragraph of that letter Mr Moore says that he is sorry for the pain which has been caused to Mr Goggin's family, and he expresses the hope that they will accept his apology and his condolences. That may not sit entirely comfortably with Mr Moore's initial not guilty plea, but for present purposes I am prepared to accept that that plea may have been linked to the similar pleas which were entered by SCS. 
Thirdly, in respect of the issue of deterrence, it must be emphasised that the Act imposes clear duties on employees, as well as on employers and others who are in control of places of work. 
I accept that there is certainly no need for individual deterrence in Mr Moore's case. That is because, as he says in his letter of 10 May, the accident is something which he knows that he will have to live with for the rest of his life, and in his letter he also refers to the additional vigilance which is now a feature of his attitude to work. However, a very real message regarding the importance of appropriate precautions must nevertheless be given to employees, in particular employees in a supervisory capacity who have control over the operation of potentially dangerous items of plant and equipment in a workplace setting. 
Finally, in respect of Mr Moore's safety record, it is clear from his work history, as Ms Lindsay has put it before me, that the tragic accident which occurred on 30 June has been an aberration in an otherwise blameless working life. 
However, as Mr Ruane has mentioned in his submissions, as the man on the spot, as it might be put, and as the man who was in charge of the operation of the gantry crane, Mr Moore could and should have taken precautions to ensure that the crane was isolated or locked out whenever Mr Pengelly or anyone else was or could have been working at height in the workshop area. Indeed, as Mr Ruane has noted, the crane was apparently isolated or locked out earlier in the week while work was being done on it. 
Decision — Mr Moore 
The effect of Mr Ruane's submissions regarding the appropriate range of the fine in Mr Moore's case was that it would be between $15,000 and $20,000. 
In her submissions Ms Lindsay has referred to statistics which have been provided by the Department of Labour, which are to the effect that the highest fine which has been imposed to date for an offence against section 19 of the Act is $5,000. 

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