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Safeguard OSH Solutions - Thomson Reuters

Safeguard OSH Solutions - Thomson Reuters



OSH Tracker

Department of Labour v Gunton Farms Ltd (DC, 05/03/03)

Sentencing Tracker

Principal Offences:
Failure to take all practicable steps to ensure safety of employees (s 6 Health and Safety in Employment Act 1992)
Inadequate storage of explosives (s 234 Hazardous Substances and New Organisms Act 1996)
Plea:
Guilty
Non-Custodial Sentences:
$9,000 fine for Health and Safety offence - to be paid to victim
$350 to victim for damage to clothing
$130 Court costs
$150 Solicitor's fee
$4,000 fine for Hazardous Substances offence
$130 Court costs
$150 Solicitor's fee
Aggravating Factors:
Extent of harm to victim
Amount of explosives (nearly 5 times legal amount)
Mitigating Factors:
Conduct of victim
Guilty plea
Remorse
Lack of previous convictions
Previous Convictions:
None
Victim:
Male

OSH Tracker

Defendant:
Gunton Farms
An explosion in which a farm worker lost his hand resulted in the OSH service’s first prosecution under the HSNO Act. Gunton Farms Ltd was fined $4000 under s.234 of the HSNO Act for storing a large quantity of explosives without a licensed magazine. It was also fined $9000 under s.6 of the HSE Act for failing to adequately train the worker in handling explosives. (Auckland DC, 5 March). The injured man found six half-sticks of explosive, a detonator and 100mm of safety fuse when clearing a shed on the farm. In an attempt to get rid of the fuse he inserted it into a stick of explosive and lit it, intending to throw it down a bank. He thought the fuse had not ignited and blew on it, realising too late that it was alight. The stick exploded, blowing off his hand. OSH found the injured employee was inadequately trained in explosives use.  Hazardous substance enforcement officers also visited the farm and found 14.9kg of explosive locked in a metal gun case. The HSNO Act requires anyone with more than 2.5kg of explosives to store them in a licensed magazine. 
Industry:
Agriculture, Forestry and Fishing
Sub-Industry:
Agriculture
Risk:
Burns/explosion
Harm:
Injury
Penalty Amount:
$13000.00
Reparation Amount:
$0.00
Appeared in Safeguard issue 79

Judgment Text

NOTES OF JUDGE A E KIERNAN ON SENTENCING 
Judge A E Kiernan
[1]
Gunton Farms Limited appears for sentence having pleaded guilty to firstly a charge under s 6 of the Health and Safety and Employment Act 1992 and secondly a charge under s 234 of the Hazardous Substances and New Organisms Act 1996. The maximum penalty provided in each of those statutes for these offences is a fine of $50,000. 
Facts of Offending 
[2]
The facts are set out in a summary of facts provided by the informant, the Department of Labour. The facts state that the defendant company carried on business as a venison farm situatED at Rakanui Station. It was the employer of Douglas Banks who was employed as a helicopter pilot and also a general farm hand. It was whilst carrying out general farmhand duties on the station that Mr Banks was seriously injured on 29 April 2002 when an explosive detonated in his hand. 
[3]
The accident happened, the summary states, when Mr Banks noticed some half sticks of powergel explosive and a detonator crimped to some safety fuse on a shelf at the back of a shed on the property which was being cleared. The summary states that because Mr Banks was concerned that anyone could have used the explosives he decided to discard the remaining safety fuse with half a stick of the powergel. 
[4]
It is said he then inserted the detonator safety fuse into half a stick of powergel and proceeded to the front of the shed where he could toss it down the bank without doing damage. He lit the fuse but thought it had not caught so blew on the glow on the top of the fuse suddenly realising it had ignited already. While then attempting to throw the powergel it exploded in his hand thereby blowing off his right hand. 
[5]
An investigation was carried out by Department Inspectors and it is alleged in the summary that Mr Banks had not received adequate instruction or training on the handling and use of explosives. It is also said in the summary that the short fuse that existed, in other words one less than a metre long, with the crimped detonator was inherently dangerous as a fuse at least one metre long is required. 
[6]
In relation to the offence under the Hazardous Substances and New Organisms Act, the facts set out are that when two Department of Labour enforcement officers visited the property some time later, on 28 June 2002, to carry out a further inspection they found locked in a metal gun case in a barn on the property 84 full sticks and 5 half sticks of powergel explosive. That amounted to 13.4 kilograms of explosive. There was also one 300 metre reel of trunk chord, equivalent to 1.5 kilograms of explosive. 
[7]
Section 239 of the Act exempts application of the magazine licensing requirements to amounts of explosive of less than 2.5 kilograms. Amounts in excess of this, according to the legislation, must be stored in a licensed magazine. It is the failure to store the explosives in a licensed magazine that forms the basis of that charge. 
[8]
I have before me a victim impact statement prepared by an enforcement officer for Douglas Banks. This sets out the physical injuries that Mr Banks suffered, a loss of his right hand back to the radial joint, loss of most of the sight in his right eye and perforated eardrums with loss of hearing. He has been, I am told from the statement, in hospital for a period of in excess of a week in April last year and then off work up to the time of this statement being prepared. 
[9]
Permanent injury has resulted from the accident, obviously, with the loss of his right hand. This has meant that Mr Banks has had to re-train to use his left hand. He no longer works for Gunton Farms and can no longer fly a helicopter which was part of his job description. Loss of sight in his right eye affects other functions such as driving, and both those injuries together represent a major challenge in his daily life. 
[10]
Set out in the victim impact statement is an amount of $350 which was damage/loss of the clothing that he was wearing at the time of the accident. Also set out is a breakdown of Mr Banks' financial costs as to loss of income. It seems he has received some accident compensation for his income. The emotional and psychological effects are set out in summary in that victim impact statement and Mr Banks has seen a psychologist. He can no longer undertake the work that he enjoyed flying helicopters and also as a flight trainer. 
Submissions on Behalf of Informant 
[11]
For the informant I have heard submissions this afternoon from Miss Scott. In relation to the charge under the Hazardous Substances and New Organisms Act she submits this is the first prosecution under that statute and therefore there are no tariffs to put before the Court. However, the Explosives Act which was the previous legislation was in existence for some years, the penalty has now been increased to a maximum fine of $50,000 from a previous fine of $5000 maximum. 
[12]
Miss Scott submits to me that an aggravating feature of this offending is that the inspectors visited Gunton Farms some two months after the accident involving Mr Banks and it was at that stage that the inadequate storage of the explosives was discovered. She says this is an aggravating feature because the company obviously had not put its affairs in order before it was visited by the Department again. She submits that an appropriate level of fine would be in the region of $5000 and says that this is not a technical breach, it is a straightforward breach of the Act. 
[13]
In relation to the charge under the Health and Safety and Employment Act Miss Scott submits that the factors the Court should weigh up are those set out in the leading case of the Department of Labour v De Spa & Co Limited [1994] ERNZ 339
[14]
As to culpability, it is Miss Scott's submission that this offending is at the higher end of culpability. She submits that the company should have foreseen the harm that might have occurred. Where explosives are left openly on a farm in a shed on a shelf they are therefore available to anyone. She submits these were dangerous substances and in effect the degree of injury could be very severe. 
[15]
She points out that explosives were frequently used on this farm and submits that proper training should have been given to Mr Banks in the use and handling of explosives because he was employed as a farm hand as well as a pilot. She submits the degree of harm suffered by Mr Banks is evident, acknowledges the remorse of the defendant company in the form of Mr Gunton and the early guilty plea that has been entered, as well as the fact that there are no prior convictions of any kind against this company. 
[16]
Miss Scott further submits to me that as with all public welfare legislation there is a strong need for deterrence when the Court imposes penalties. She acknowledged that there was some fault on the part of the employee, Mr Banks, in this case. She submits to me that, though there are no similar cases on the facts, generally in amputation cases penalties may be in the range of $18,000 to $25,000 fines. 
[17]
In this case, taking into account in mitigation the actions of the employee, she submits a fine in the range of $15,000 to $20,000 would be appropriate. She mentions to me a case concerning a company called Crighton Engineering where there was an amputation at the wrist in a different fact situation, not explosives but a factory work environment, resulting in a fine of $10,000. It is submitted that the average fine under the legislation for accidents generally is in the region of $8000. 
Submissions on Behalf of Defendant Company 
[18]
On behalf of the defendant company Mr Rainey filed extensive written submissions and made further submissions in Court. With regard, first of all, to the matters raised in his written submissions he accepts and promotes as factors for the Court to assess this case, the factors identified in the de Spa decision. 
[19]
As to the facts of the particular case, which of course go to culpability, Mr Rainey submits that Mr Banks did work as a general farm hand on the property but was not in any way involved in the use of explosives and therefore did not have to be trained in how to handle them. 
[20]
On the particular day he had been asked by the recently appointed farm manager to assist in clearing out equipment sheds containing farm equipment which had recently been moved to Rakanui from another property owned by Gunton Farms. The gun case containing the powergel and one detonator was included in that material brought from the other station. 
[21]
Mr Rainey submits that the farm manager, in directing Mr Banks to assist in cleaning out the shed, was unaware of the existence of those explosives in the shed. Where it had been previously stored at the other station that gun case had been locked and the explosives safely stored. The need to ensure that they were stored securely was overlooked when they were transferred to Rakaunui Station. 
[22]
Mr Rainey submits that the explosives did not pose a hazard stored as they were even after they had been moved because there was no risk of accidental detonation, the only risk was if someone intentionally assembled the fuse and detonator with one of the sticks of explosive and then proceeded to set it off. 
[23]
It is Mr Rainey's submission that Mr Banks' decision to set and to assemble the stick of explosive and to, in effect, set the now live explosive off was outside the scope of his employment. He did it, it is submitted, without the knowledge or consent of either his immediate supervisor, the farm manager or anyone else involved in the management of the company. 
[24]
It is submitted that Mr Banks could simply have advised the manager of the situation and given him the fuse, or directed him to the material. It is further submitted that the only inference the Court can therefore draw from the facts is that Mr Banks decided that it would be fun to set off one of the half sticks of powergel, and that in doing so it is submitted he must have been fully aware that what he was doing was both dangerous and outside the scope of his employment. 
[25]
For those reasons it is disputed that the defendant company should have taken steps to ensure that Mr Banks was educated in the use of explosives. It is not accepted that reasonable and responsible employer should have provided such education. It is accepted of course, in Mr Rainey's submission, that Gunton Farms should have taken steps to secure the explosives and its failure to take those steps is what constitutes the breach of s 6. 
[26]
As to the gravity of the offending, it is submitted that this offending is at the lower end of the scale. I am referred to the part of the de Spa decision which relates to Gordon's Wool and Skins Limited. The submission is made that the accident was a result of Mr Banks' own decision. 
[27]
In assessing the culpability of the defendant company it is submitted to me that Mr Banks, having discovered a stick of inert but potentially dangerous explosive, then proceeded to insert the detonator and fuse, making it live. Obviously that accident would not have happened but for his actions, and I am invited to consider that as a responsible and intelligent employee Mr Banks must have known what he was doing was both outside the scope of his employment and extremely dangerous. 
[28]
In relation to the other charge relating to the explosives stored in contravention of s 234 of the Hazardous Substances and New Organisms Act, Mr Rainey's submission is simply that the defendant company accepts that the amount of the explosives stored in his property exceeded the maximum amount allowed to be stored in that way under the Act. 
[29]
With regard to the seriousness of the offence, it is submitted to me that these offences are by no means the most serious. The maximum penalty for each is $50,000. Mr Raney submits that a penalty at the lower end of the scale is appropriate in this case, for both offences. 
[30]
As regards consistency between penalties for similar offending it is submitted, on behalf of the company, that it is impossible to compare penalties in earlier cases and in any event there is no comparable case on these facts. Reference was made to the Crighton Engineering sentence which I have alluded to. 
[31]
In relation to the particular circumstances of the defendant company, Mr Raney points out that the company has no convictions. It was incorporated in 2001, but the farming interests predate that and the Gunton Family have owned these properties and operated them since 1997. There are four employees and health and safety systems, I am assured, are in place to ensure the safety and health of those employees at work. 
[32]
With regard to the extent of the harm resulting from this offence, the defendant company, through Mr Rainey, accepts that Mr Banks suffered significant injuries. The Gunton family, I am told, regret the accident happening and were extremely upset by the incident. 
[33]
The guilty plea is alluded to in Mr Raney's submissions and also the remorse felt by Mr Gunton after this accident. I am told he returned immediately to Taumarunui to decide what he could do to assist, visited Mr Banks in hospital and he and his family have expressed their sympathy to him. All the explosives previously stored on the property, I am told, have now been disposed of. 
[34]
With regard to reparation, Mr Rainey's submissions include reference to the transitional provisions in s 148 of the Sentencing Act 2002. I can order reparation for emotional harm or loss of or damage to property, and I can also direct that any part of a fine imposed can be awarded as compensation to the victim. 
[35]
With regard directly to penalty, Mr Rainey in his submissions refers to the de Spa decision and submits that fines in the broad range of $10,000 to $15,000 might be appropriate in cases involving similar injuries, but with a higher level of culpability. In this case he submits that an appropriate fine would be $7,500 in respect of the s 6 charge and a fine in the region of $2,500 in respect of the s 234 charge. 
Sentencing Decision 
[36]
In relation to the s 6 offence, I find the extent of harm suffered by Mr Banks as the principal aggravating feature. As mitigating features I regard as significant four features; the conduct of the victim, the guilty plea, the remorse expressed by the defendant, the previous good character of the defendant. 
[37]
In relation to the s 234 charge I find as an aggravating feature the quantity of explosives held in contravention of the statute — almost five times the amount which could have been stored otherwise than in a licensed magazine. In mitigation I note the guilty plea. 
[38]
I have regard to the principles and purposes of sentencing set out in the Sentencing Act and also those principles set out in the de Spa decision in relation to this sort of offending. 
[39]
In assessing the culpability of the defendant company I have considered the submissions made on behalf of the informant and the company and identify the aggravating and mitigating features as already outlined. 
[40]
I approach the sentence on the s 6 matter on the basis that it was the failure of the company to secure the explosives that forms the breach of the statute. Mr Banks' role in his own unfortunate accident must be seen against that assessment. It is a different situation, in my view, from the only other case cited to me concerning amputation following accident at work, Crighton Engineering, where an employee was using unguarded factory equipment in the normal course of his usual employment. 
[41]
In respect of the s 234 matter I refer to the aggravating and mitigating features I have already mentioned. 
[42]
As to sentence then in respect of the matter under s 6 of the Health and Safety and Employment Act 1992, in my view an appropriate starting point for this offending, bearing in mind all the factors I have outlined and before consideration of aggravating and mitigating features, would be a fine in the region of $15,000. 
[43]
From that starting point I weigh up the features I have mentioned and I have arrived at a final amount of fine appropriate in this case of $9000, so for that offence the company is convicted and fined $9000. I order that the full amount of that fine be paid to the victim, Mr Banks, as compensation. 
[44]
I also order that reparation be paid in the sum of $350 for his damaged clothing and there will also be Court costs of $130, and a solicitor's fee of $150 on that matter. 
[45]
In relation to the offence under the Hazardous Substances and New Organisms Act, in my view an appropriate starting point for that offending in these circumstances would be a fine in the region of $7000. 
[46]
Having balanced the factors I have mentioned, in my view an appropriate final figure would be a fine of $4000. Accordingly, in relation to that offence, the company is convicted and fined $4000, with Court costs to pay of $130 and a solicitor's fee of $150. 

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