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OSH Tracker

Lyon v Hurring BillCliff Logging Ltd (DC, 21/05/01)

OSH Tracker

Defendant:
Hurring Billcliff Logging
HURRING BILLCLIFF LOGGING LTD was fined $1000 under s.26 of the HSE Act for disturbing the scene of an incident in which a skidder operating in a woodlot went over the edge and bounced down into a gully. Two s.6 charges were dismissed. (Dunedin DC, 21 May 2001) 
Industry:
Agriculture, Forestry and Fishing
Sub-Industry:
Forestry and Logging
Risk:
Vehicle - offroad (eg ATV, tractor)
Harm:
None
Penalty Amount:
$1000.00
Reparation Amount:
$0.00
Appeared in Safeguard issue 72

Judgment Text

RESERVED JUDGMENT OF JUDGE G S MacASKILL 
Judge G S MacAskill
The defendant company faces three charges under the Health and Safety in Employment Act 1992 (“the Act”). It is charged that on or about 16 February 2000 at Alan Dickies Farm, Ferndale, it did commit an offence against s 6 and s 50(a) of the Act in that it, being an employer, failed to take all practicable steps to ensure the safety of its employee, namely Richard John Miller, while at work, in that it failed to take all practicable steps to ensure that Richard John Miller was not exposed to hazards arising out of the use of a skidder in his place of work. The defendant is further charged that on or about the same date and in the same place, pursuant to those provisions, it, being an employer, failed to take all practicable steps to ensure the safety of Mr Richard John Miller, in that it failed to ensure that plant, namely a skidder, used by Mr Miller at work was so maintained that it was safe for him to use. The defendant is further charged that on or about the same date and in the same place, pursuant to s 26(1) and 50(b) of the Act, that a person, namley Richard John Miller, was seriously harmed while at work, it without the authority to do so by an Inspector, disturbed a skidder, relating to the incident. 
Section 6 of the Act provides: 
“6.
Employers to ensure safety of employees 
Every employer shall take all practicable steps to ensure the safety of employees while at work; and in particular shall take all practicable steps to— 
(a)
Provide and maintain for employees a safe working environment; and 
(b)
Provide and maintain for employees while they are at work facilities for their safety and health; and 
(c)
Ensure that plant used by any employee at work is so arranged, designed, made, and maintained that it is safe for the employee to use; and 
(d)
Ensure that while at work employees are not exposed to hazards arising out of the arrangement, disposal, manipulation, organisation, processing, storage, transport, working, or use of things— 
(i)
In their place of work; or 
(ii)
Near their place of work and under the employer's control; and 
(e)
Develop procedures for dealing with emergencies that may arise while employees are at work. ”
It is to be noted that the expression “all practicable steps” is defined in section 2(1): 
“2 Interpretation 
(1)
In this Act, unless the context otherwise requires,— 
All practicable steps, in relation to achieving any result in any circumstances, means all steps to achieve the result that it is reasonably practicable to take in the circumstances, having regard to— 
(a)
The nature and severity of the harm that may be suffered if the result is not achieved; and 
(b)
The current state of knowledge about the likelihood that harm of that nature and severity will be suffered if the result is not achieved; and 
(c)
The current state of knowledge about harm of that nature; and 
(d)
The current state of knowledge about the means available to achieve the result, and about the likely efficacy of each; and 
(e)
The availability and cost of each of those means: ”
Section 50 provides: 
“50. Other offences 
(1)
Every person who fails to comply with— 
(a)
Any provision of Part 2 of this Act other than section 14 [or section 16(3)]; or 
(b)
Section 25, section 26, section 37(2), section 39(5), section 42(1), section 43, section 47, section 48, or section 58 of this Act; or 
(c)
Any provision of any regulations made under this Act, or continued in force by section 24 of this Act, declared by those regulations to be a provision to which this section applies,— ”
Section 26(1) provides: 
“26. No interference at accident scene 
(1)
Where a person is seriously harmed while at work, no person shall, unless authorised to do so by an inspector, remove or in any way interfere with or disturb any wreckage, article, or thing related to the incident except to the extent necessary— 
(a)
To save the life of, prevent harm to, or relieve the suffering of, any person; or 
(b)
To maintain the access of the general public to an essential service or utility; or 
(c)
To prevent serious damage to or serious loss of property. ”
The material facts are not in dispute. The defendant is involved in the logging industry. As part of its logging operations, the defendant has a “farm” logging gang responsible for operations mainly in farmers' plantation woodlots. The gang comprises between four and five members. Usually, two members operate machinery and two or three operate chainsaws, felling or limbing and trimming. One member of the gang, Mr Kelvin Edwards, was designated the supervisor or foreman on site. His responsibilities included the safety of the logging operations. 
The geographical terrain in which the farm gang is required to operate varies from flat land to virtually inaccessible gullies. The equipment used by the gang varies according to the terrain. In steeper country, a hauler and bulldozer are available to the gang. In flatter country, a Caterpillar 518C skidder is used. The skidder is also used on the skid site where cut trees are assembled for conversion to logs and are graded and stacked for transportation. 
On 15 November 1999, the defendant entered into a contract with Forest Products Marketing Limited to log a woodlot on the property of Mr Alan Dickie, who farms at Ferndale, approximately halfway between Clinton and Mataura. The woodlot was located on the south face of a gully running west to east. The block was in two parts. The lower part sloped gently into the gully. The top part was much steeper with slopes running into a “drop-off”, in which there were a series of natural “benches” above the gully bottom. 
In early December the farm gang attended at the site and carried out an assessment of the job. Various hazards were identified, including the gully and steep slopes. It was agreed that logging would commence on the bottom part of the block and that the terrain was suitable for the skidder. The skidder was a four-wheeled articulated machine, used for skidding or towing cut logs. The skidder was fitted with winch that usually had a 35 m winch rope. It was agreed that where the slope became too steep and the skidder was unable to reach the felled trees, tracks were to be cut from which the skidder could operate. It was agreed that the skidder, fitted with a widened blade and front chains, was adequate to cut the tracks, given the good ground conditions and generally small stump size. There was some discussion about the possible use of a hauler for the top part of the block but the hauler was not in fact used. 
Upon completion of the bottom part of the block, Mr Edwards, Richard Miller and James Sell walked the upper part of the block. They were satisfied that they could finish the block safely by using the skidder with a longer, 70 m, winch rope to reach the trees at the bottom of the gully. It was obvious to them that tracking would also be required on this part of the block as, even at 70 m, the rope was not long enough to reach the bottom. As logging on the block progressed, Mr Edwards and Mr Miller discussed where the tracks should be placed. They tracked on an “as required” basis. I shall refer shortly to an accident that subsequently occurred. Mr Edwards and Mr Miller walked the section of the block where the accident later occurred agreed that it did not need to be tracked as it was not too steep. 
By 16 February 2000 the gang had nearly finished the block. It remained only to fell and recover the last of the trees that were adjacent to the fence-line at the bottom of the gully on the top part of the block. Mr Dickie declined to take out the fence at the bottom of the gully, which would have allowed the gang to fell the trees into the paddock on the other side. It was decided that the trees would be back-felled onto the block, using the skidder. Mr Miller would back the skidder part way down the slope and then run out the 70 m rope. The rope would be placed as high as possible up the trees to be pulled. Mr Edwards and Mr Miller decided that tracks were not needed for this manoeuvre by the skidder. Mr Miller had previously used the skidder in a similar way for dragging the trees felled on the benched part of the slope, including a couple of times that day. Mr Edwards knew that Mr Miller had been down the untracked face, dragging trees, and he was satisfied that tracks were unnecessary. Mr Miller cleared the ground of debris to get good traction. The ground conditions were good. 
Mr Miller backed the skidder up to the edge of the drop-off on the slope to meet Mr Daniel Maguire who was going to do the cutting. According to Mr Miller's evidence, the skidder got right to the edge of the drop-off. He applied the foot brakes but they failed to function. The brake pedal went straight to the floor. He tried to pump the pedal to get some pressure but by this time the skidder was over the edge. He tried to steer the skidder to keep it upright. This was difficult as the skidder was bouncing down the slope and he was being thrown about. Once the brakes had failed he did not have the opportunity to put the skidder into forward gear or to put the park brake on. Mr Miller thinks that he may have been knocked out, as he does not remember much about the later stages of the descent. Mr Maguire looked up in response to the noise of the skidder descending and observed it bouncing down the hill. The skidder came to rest at the bottom of the gully in an upright position. 
As a result of the accident, Mr Miller suffered two crushed vertebrae in his neck, three cracked ribs and a punctured lung. He received stitches to his ear and his forehead. He spent a week in Invercargill hospital. He had to go back into hospital for a week at Easter to have the vertebrae in his neck fused. 
The skidder was subsequently inspected by the Caterpillar agents, Gough Gough and Hamer. No defect was found which could account for the accident, with respect to the brakes or otherwise. The immediate cause of the accident was not an issue upon which the prosecution or defence placed any reliance. Responsibility for the accident is not advanced by the prosecution as an essential part of its case. The prosecution and defence are content to accept that the cause of the accident has not been established. Either the skidder's brakes failed or Mr Miller failed to apply the brakes to prevent the skidder from going over the drop-off. Mr Miller's unchallenged evidence was that the brakes failed but there was no physical evidence of brake failure, which makes that cause improbable. I find neither cause proved to either the criminal or civil standards of proof. 
As regards the charge relating to the use of the skidder, the prosecution case relates to the alleged failure by the defendant to track the slope. As appears from Mr Mason's written opening submissions, the prosecution alleges that the defendant failed to take all practicable steps to ensure Mr Miller's safety because it failed to put in place any hazard control measures to ensure the stability of the skidder on the slope. Mr Mason said that “one such measure would have been to ensure that the skidder was operating from a properly formed track on the slope above the drop-off”. Mr Mason acknowledged that the ground conditions were good and that the operator was experienced. He emphasised that the slope was steep in that it ranged between 21° and 22°. He emphasised that the operation of the skidder on the slope was made more hazardous because of the drop-off below it. There was no margin for recovery of the machine in the event that for some reason the machine went over the slope. The consequences of such an event obviously included severe injury or death to the operator. 
I find that the absence of a track did not cause or contribute to Mr Miller's accident. That is because there was no evidence that the slope could have been tracked so that the skidder could have backed down the track to the edge of the drop-off. The construction of a track sufficiently wide to enable the skidder to back-up to the drop-off would have been extraordinary and unreasonable and was not proposed by any of the witnesses for the prosecution. I find also that the defendant's decision not to form access tracks across the slope to the drop-off did not contribute to the accident; Mr Mason did not suggest otherwise. There is no evidence that the digger experienced any instability at all while traversing the slope. While the approved Code of Practice for Safety and Health in Forest Operations provides that rubber tyred machines should not operate on slopes that exceed 18°, that is only a guide. 
I am satisfied, by having regard to the expert evidence and to the practical evidence of the members of the gang that the operation of the skidder, on that slope on that day and in those conditions, was not in breach of the defendant's obligations under the Act. The conditions were good, there is no evidence of any actual instability and Mr Miller had previous uneventful experience on that slope. While the drop-off was a serious hazard, I find that the operation of the skidder on the slope was safe. The extent of the danger should not be understated, but it must be kept in perspective. The consequences of mechanical failure or driver error were potentially catastrophic but such risks may be properly and sufficiently provided for by proper maintenance and operator skill and care. These measures were actually effective in this case because, whatever the actual cause of the accident, it was not the operation of the skidder on the slope. While that fact is not conclusive, it is of evidential value. 
The prosecution's case evolved in the course of the hearing so as to encompass the allegation that the defendant ought to have cut a track to the bottom of the slope, below the benches, so that the trees at the bottom could be pulled without the risk of the skidder going over the drop-off. Such a track - referred to as “the C track” - was cut in order to enable the skidder to be recovered after the accident. The Court must not judge the defendant's actions with the benefit of hindsight, but I accept that the cutting of such a track would have been effective and that the evidence establishes that this was a reasonable and practicable alternative to the procedure followed by the defendant. It is a procedure that another contractor may have preferred. However, as with pulling the trees from the top of the slope, this procedure carried its own risk. In order for the skidder to pull the trees, its two articulated sections could not have been in line because the back (or winch) section would have faced the trees and been positioned at an angle to the track cut across the slope and the front section would have been aligned along the track. The expert evidence shows that the most stable and the safest method of pulling and dragging trees with a skidder is to keep the machine in line. The expert witnesses disagreed as to the extent of the hazard in the situation postulated in this case and, in the absence of any definitive evidence, I am satisfied that the assessment of the comparative risks was a matter of judgment. 
On the evidence before me I find that, in deciding to pull the trees from the slope at the top of the drop-off rather than to cut a track to the bottom of the slope, the defendant acted entirely reasonably and, given its assessment of the risk (which was a proper assessment), it took all practicable steps to ensure the safety of Mr Miller. The defendant had to balance the conflicting risks, adopt an appropriate strategy and then take all practicable steps to ensure the safety of Mr Miller given that strategy. I am satisfied that the choice of strategy had as its decisive criterion the safety of the employees. The defendant had logged the drop-off or benched area by similar methods, which no one criticised before me, and it is reasonable that the same method should have been used to log the area below the drop-off. 
The defendant cannot be guilty of failing to take all practicable steps simply because it chose one of two alternative strategies and events proved that the alternative strategy would have avoided the risk which came to be realised. As to the definition of the expression “all practicable steps” in section 2, none of the criteria stated in sub-paragraphs (a) to (e) inclusive assist in determining which of the two alternative strategies, each of which I take to have been equally hazardous, ought to have been selected. It was not reasonably practicable for the defendant to have adopted both strategies. The chosen strategy was not clearly more hazardous than the suggested alternative. The defendant's preference for the chosen alternative reflected its employees' particular preferences, training and experience. The evidence shows that different contractors may have approached this job in different ways. It was not suggested that the defendant's general approach to the logging of the block was more hazardous than any other approach. 
For these reasons, I hold that the prosecution has failed to prove beyond reasonable doubt the charge that the defendant failed to take all practicable steps to ensure the safety of Mr Miller in that it failed to take all practicable steps to ensure that he was not exposed to hazards arising out of the use of the skidder in his place of work. 
The second charge relates to the operator's seat in the skidder. The prosecution case is that the defendant failed to adequately maintain the seat on the skidder, making the consequences of injury to the operator in a rollover or runaway situation more likely and any injuries more severe. It is also alleged that the failure to maintain the seat might also hinder an operator's ability to regain control of the machine in a marginal situation. 
The operator's seat on the skidder was originally a suspension seat. At some point the spring was removed. The seat was not then fixed in place so that it could still move the distance it could formerly move while suspended. In the normal course of operations the seat simply sat flat. 
The prosecution case with respect to this charge rested on the evidence of Mr Craig Lyon, the informant in this proceeding and a Health and Safety Inspector (Forestry) with the Occupational Safety and Health Service at the time of the accident. The relevant part of Mr Lyon's evidence appears in paragraphs 31 and 32 of his brief: 
“31.
In respect of the skidder involved in the incident the seatbelt, which the operator was wearing, was attached to the seat. The seat, however, was not maintained in a proper manner. Although designed to have movement because it was a suspension seat it was also designed to have resistance to that movement through a spring. Because the spring was broken, not only was the seat no longer a suspension seat, but the seat could travel vertically unrestricted for a distance of 6-9 inches. Once the machine lost control the operator was exposed to increased risk of harm though the effect of the movement between his body and the machine. The increased movement may also have hindered his trying to regain control of the machine. 
32.
The proper maintenance of the seat to prevent unnecessary and unrestricted movement of it, particularly given the fact that the seatbelt was attached to it and the importance of seatbelts in ensuring operator safety, was required as step to ensure that the skidder was safe for the operator to use. ”
It was subsequently conceded by Mr Mason that Mr Lyon's evidence that the seat moved 6″ to 9″ was wrong and that the correct distance of travel was 6 cm to 9 cm. Also, the spring had been removed and was not broken, as suggested by Mr Lyon. Furthermore, I accept the evidence of Mr Hurring, a director of the defendant company, that there was some degree of restraint provided by a shock absorber which remained in place. Mr Lyon's inspection was clearly cursory and his evidence on this matter unreliable. 
Mr Lyon conceded under cross-examination that the suspension seat was not of itself a safety measure, except that it tended to reduce the effect of vibration on the operator. Nevertheless, it is plain that at least some operators prefer an unsprung seat and there is nothing to suggest that this of itself prejudices safety. The seat was capable of travelling 6 cm to 9 cm, sprung or unsprung, particularly in a situation such as that in which Mr Miller found himself. It may be that Mr Hurring is right in suggesting that a suspension spring might potentially aggravate the up and down movement experienced by an operator in such a situation. There is certainly nothing to suggest that an unsprung seat that retains the ability to move, as this seat did, caused or might have caused Mr Miller to be thrown around anymore than he might have been had the spring remained in place or had the seat been fixed in position. In his evidence, Mr Mervyn Johns, the defendant's expert, expressed the opinion that if the spring had not been removed then Mr Miller could have received far more serious injuries due to the fact that the skidder was bouncing as it went down the slope and would have put the action of the seat out of sequence with the bounces of the skidder. 
I am not satisfied beyond reasonable doubt that the removal of the spring and/or omission of the defendant to fix the seat in place made it unsafe for Mr Miller to use. This charge must accordingly fail. 
As regards to the charge that the defendant disturbed the skidder after the accident without the authority to do so by an inspector, I am satisfied that the elements of the charge have been proved beyond reasonable doubt. It has been proved that Mr Miller was seriously harmed while at work, that the defendant arranged for the removal of the skidder from the accident site and that it did so without the authority of an inspector. 
Mr Barton submitted that the defendant could not be found guilty of this charge because it requires proof of mens rea, that the defendant had knowledge that Mr Miller had been seriously harmed when it disturbed the skidder. I accept that at the time the skidder was removed Mr Edwards believed, on the basis of enquiries he had made of Gore hospital, that Mr Miller did not appear to have any serious injuries. 
I reject the submission that guilty knowledge is required. I hold that the offence is strict and was committed even though the defendant (by its responsible employee, Mr Edwards) honestly believed that no serious harm had been suffered. 
I apprehend that the Legislative policy underlying this provision is to ensure the scenes of such accidents are not disturbed until properly examined by an inspector and that this objective is best achieved by the imposition of strict liability. Strict liability best ensures that employers in the defendant's situation act only on reliable information and not prematurely. 
In this case, Mr Edwards acted in undue haste. He tried unsuccessfully to contact Mr Lyon and purported to act on the authority of Miss Hunter, who was an information officer employed by the Service and not an inspector. Mr Edwards was not entitled to rely on any authority thought to have been given by Miss Hunter. He ought to have waited until he made contact with Mr Lyon. 
Mr Edward's state of mind and knowledge, his attempts to contact Mr Lyon, his discussion with Miss Hunter and the steps he took to photograph the scene may be mitigating factors but they do not give rise to a defence to the charge. 

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