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Safeguard OSH Solutions - Thomson Reuters

Safeguard OSH Solutions - Thomson Reuters



OSH Tracker

Department of Labour v Cavalier Spinners Ltd (DC, 30/01/03)

OSH Tracker

Defendant:
Cavalier Spinners
CAVALIER SPINNERS LTD was fined $1750 on each of three s.6 charges after three employees suffered superficial burns when a vat incorrectly indicated it had reached the end of its cycle. When they opened it the vat was still pressurised, spilling boiling water and wool over them. The three were awarded all of the fines. (Napier DC, 30 January) 
Industry:
Manufacturing
Sub-Industry:
Food, Beverage and Tobacco
Risk:
Burns/explosion
Harm:
Injury
Penalty Amount:
$5250.00
Reparation Amount:
$5250.00
Appeared in Safeguard issue 80
Defendant:
Cavalier Spinners
At the same hearing, CAVALIER SPINNERS LTD was fined $200 under s.6 and directed to pay $8000 in reparations after an employee lost part of his thumb when he attempted to clear wool from a carding machine. The judge made the reparation order for emotional harm. The accident happened after the Sentencing Act came into force. (Napier DC, 30 January) 
Industry:
Manufacturing
Sub-Industry:
Textile, Clothing, Footwear and Leather Manufacturing
Risk:
Machinery (trapped, crushed, cuts)
Harm:
Injury
Penalty Amount:
$8200.00
Reparation Amount:
$8000.00
Appeared in Safeguard issue 80

Judgment Text

NOTES ON SENTENCING OF JUDGE R P WOLFF 
Judge R P Wolff
Cavalier Spinners Limited has pleaded guilty to four charges under the health and safety regulations. They arise out of two separate accidents, the first accident involving the injury to three of its workers, the second involving a more serious injury to a fourth worker. 
The first injury occurred in August 2002 when an apparently fall safe system in the operation of a vat failed and an apparently unopenable vat was opened while under pressure, thus allowing the escape of hot water, steam and hot wool which caused injuries to the three workers closest to the vat. 
It is a company that had an existing health and safety system, it is a company that seemed to be taking a responsible approach to such matters, but in spite of the responsible approach, had not detected that the fail safe system was not safe and further had not detected that the vat could indeed be opened in an unsafe condition. 
The company since then, having identified the difficulties, has improved the safety features which had they been in place prior to this incident, may have prevented the accident happening at all. 
Mr Ferguson, on behalf of the company, submits that the level of failure on this part falls within the moderate range. The Crown Prosecutor or the prosecutor for the Department suggests that it falls within the medium range. 
Mr Ferguson emphasises that there should be a difference in penalties between the employer who tries to take steps but makes an inadvertent failure, and an employer who takes no steps at all and is at the risk of attempting, not attempting to pun about this, but has a cavalier attitude to its workers, should in fact be punished more severely. 
That submission has a deal of substance and it is certainly the case that if this injury had resulted in a situation where the company had been careless or irresponsible, then the fine level would have been up to four times higher than the fine that I am going to impose. 
Mr Ferguson and the prosecutor have both emphasised the factors in the Despar case. I have mentioned culpability on which they disagree. I am satisfied in the case of the vat incident that the level of culpability is in the lower range, rather than the medium range given that there was an apparently fall safe system and it required a considerable effort to undo the machine, which suggested that this accident may well have gone undetected and might not have occurred, so I accept Mr Ferguson's submission. 
The degree of harm in this case has resulted in superficial injuries to each of the three persons with a small amount of psychological injury to them, uncertainty about the work place, a concern about hissing sounds and the like, all of which warrant some recognition. 
The defendant is in the financial circumstances to meet any fine the Court imposes. It's attitude has been one of co-operation, remorse and remedial action. I have read with care Mr Shuker's affidavit. The company has pleaded guilty at the very first available opportunity and it is entitled to credit for that. 
The final Despar factor is the need for deterrence. Mr Ferguson submits that there is no need for deterrence in this case because the employer does not need to be deterred. That may be true of this particular employer, but the deterrence does not apply solely to the defendant in this case, but the Court is required to send a message to all employers and it is that aspect of deterrence that needs to be taken into account, so there needs to be some deterrent aspect of a sentence, but as I have already mentioned, the scale will indeed slide depending on the degree of culpability of the companies operation. 
In the case of the vat accident it is possible that the entire fine be paid to the individual victims. 
In respect of those, the total penalty payable in respect of that can be a fine in total of $25,000.00. I am satisfied that in the circumstances of this case, there being three persons injured, that in each case the company is fined the sum of $1,750.00, ordered to pay Court costs of $130.00 and the entire fine in each case is to be paid to the victim. 
I emphasise that what the Court is doing here is punishing the culpability. This is not an attempt to have a de facto civil hearing and attempt to compensate the individual persons injured by an award of damages. To do so would be to fly in the face of the accident compensation legislation and fail to take Into account the existing civil law of this country. I say that because in spite of my repeating it on every single such case, it is inevitable that the Judge is misquoted and the judge is attributed with some comment like accused's hand, finger, burns worth such and such. I make it perfectly plain that I am not assessing in this case the worth of the injury. I am attributing the blame worthyness of the defendant and ensuring that the fine goes to the victims. I am not in the position that a foreign Court might be or a foreign Jury might be to determine the issue of responsibility which would be determined, taking into account factors such as contributory negligence and the like. I am sorry to belabour the point, but both the — all of the following — the press, the unions and the employers have all misquoted Judges on the effect of the sentence and done so with mischievous intent. 
The final charge relates to the injury to Mr Arnold. This involved Mr Arnold having horizontally placed in his hand into a carding machine that whilst guarded, was insufficiently guarded. 
He was aware that to carry out maintenance on the machine, that the machine should have been switched off and there were sticks available to him to use to clear wool from the carding machine, which he chose on this occasion not to use. He had put his hand in the machine before in a vertical direction, but not in a horizontal direction. 
He was partly trained and there was a system in place for training him, but quite clearly, the system proved to be inadequate and the guarding that ought to have been there has also proved to be inadequate. 
As a result, he has suffered the loss of a finger, the loss of the tip of his thumb and a laceration to his finger. 
He is a man who had otherwise practical pursuits. He was a handyman, he had other work that he used to do that he is not able to do, he lost lime at work, some of his sporting passions such as dants and so on now are not easy for him to do and the loss of his finger, his thumb has caused him embarrassment and he is conscious of it at all times. For the rest of his life, he is going to suffer a handicap as a result of the loss of that thumb. 
Again, this is not the Courts place to award or attempt to put the value of Mr Arnold's thumb, put a value on it. Indeed, the Court is not permitted to do so because it is not allowed to compensate for matters that would otherwise be compensated for by the Accident Compensation and Rehabilitation Act. Again, I do not expect to be quoted correctly on this, but I am at least including it in my judgment so that if anyone cared to check it, they would be aware of what precisely it is that I am saying. 
I can compensate him however for emotional harm. I am satisfied that in this case, there is a considerable degree of emotional harm that is worthy of compensation. It is a very difficult matter to work out and calculate and some times, it might be difficult to rationalise, but I would imagine that the continuing loss of amenities of life, the continuing embarrassment would hardly be compensated by an award of $8,000.00. 
I order payment to him of the sum of $8,000.00 of reparation. That is to be paid within two months. 
I need to determine the level of culpability in this case. The maximum fine is in the region of $50,000.00. The submissions are that it falls within the medium category. There are other cases where awards of about $10,000.00 have been awarded for the loss of a finger, but the circumstances have been slightly different. 
In this case, I am satisfied that there was a degree of responsibility on the employer's part, there was an attempt at training and there was an attempt to avoid this sort of accident occurring. 
I am therefore satisfied that reparation having been thus ordered, the fine can be restricted to a fine of $200.00. There will be an award of solicitor's costs of $300.00, Court costs of $130.00 will apply to this case as it did to the other three. That means in this case, there is an effective reparation of $8,000.00, fines of $200.00 and the various costs that I have ordered. 

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