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Safeguard OSH Solutions - Thomson Reuters

Safeguard OSH Solutions - Thomson Reuters



OSH Tracker

Purdie-Smith v Calder Stewart Industries Ltd (DC, 09/05/03)

OSH Tracker

Defendant:
Calder Stewart Industries
CALDER STEWART INDUSTRIES LTD, trading as CALDER STEWART ROOFING, was fined $2000 under s.6 and ordered to pay $500 in reparation after an employee slid off a roof on which he was working, cutting his buttock on a steel reinforcing rod which was projecting from below the roof edge. (Dunedin DC, 2 May.) 
Industry:
Construction
Sub-Industry:
Construction Trade Services
Risk:
Fall at same level
Harm:
Injury
Penalty Amount:
$2500.00
Reparation Amount:
$500.00
Appeared in Safeguard issue 83

Judgment Text

REASONS OF JUDGE D J L SAUNDERS ON PRELIMINARY POINT AT SENTENCE 
Judge D J L Saunders
[1]
Calder Stewart Industries Ltd face one charge laid under sections 6 and 50(1)(a) of the Health and Safety in Employment Act 1992. 
[2]
The charge arises from an incident in Wanaka on 16 July 2002. An employee of the Company was working on a roof of a dwelling house under construction at 18 Allenby Place. In the course of working on the roof the employee slipped and as he endeavoured to jump clear of some construction works on the ground he suffered a small laceration to one buttock and a bruised heel. 
[3]
The informant argues that the injury suffered amounted to a temporary severe loss of bodily functions as defined in the First Schedule to the Act. 
[4]
It was accepted by the informant that any loss suffered was temporary. The informant essentially relied on the meaning of “severe” as determined by the High Court in McFarlane Laboratories NZ Ltd v Department of Labour where Laurenson J referred to the scheme of the Statute and suggested that whether the harm suffered was in medical or lay terms serious or not is irrelevant. What is relevant is the nature of the incident. The informant is correct in the submission that falls from roofs are the kinds of situation contemplated as being required to be notified. 
[5]
What is then required is an assessment of the injury as to whether the higher or lower penalty provision is applicable for the purposes of sentencing. 
[6]
If a loss of bodily function is permanent quite clearly the higher penalty provisions will be appropriate. This may also be so of a situation where there is a temporary severe loss of bodily function and one can imagine this where the worker is concussed or rendered unconscious. The loss may indeed be temporary and extend over a short period of time. It may also extend over a period of some weeks such as with a broken limb which heals without any permanent loss. 
[7]
In this case the injury was as 2.5 cm laceration which required five stitches and healed to the extent that within two weeks the worker had returned to active sports. The worker was driven back to Dunedin from Wanaka and during the first few days following the incident he reported some difficulty in sitting properly. While sitting in a bodily function the words used to qualify this are temporary severe loss. 
[8]
I accept the submission of Mr Churchman that ultimately the matter must be resolved as question of fact. In this case the loss suffered was not only temporary. It was, in my view, no more than a moderate degree of inconvenience and discomfort. It certainly was more than a trifling injury but did not, I believe, qualify for the adjectival description of “severe”
[9]
For the reasons now given I confirm the ruling given on 2 May that this matter could be disposed of within the lower penalty regime where the maximum penalty does not exceed $25,000.00. 

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