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Department of Labour v Aratika Imports and Exports Ltd (DC, 21/05/03)

OSH Tracker

Defendant:
Aratika Import and Export
ARATIKA IMPORT AND EXPORT LTD was fined $17,500 under s.18(1)(a) after a contractor’s employee was killed when he became entangled in the unguarded power take-off shaft of a tractor. The dead man, who was employed as a farm manager, caught his clothing in the revolving PTO shaft as he adjusted an effluent spreader that was being powered by the tractor. There was no proper guard for the shaft, and a length of plastic pipe that had been used to cover the PTO was not on it at the time of the incident. The entire fine was awarded to a trust fund to benefit the victim’s son. ( 
Industry:
Agriculture, Forestry and Fishing
Sub-Industry:
Agriculture
Risk:
Machinery (trapped, crushed, cuts)
Harm:
Death
Penalty Amount:
$17500.00
Reparation Amount:
$17500.00
Appeared in Safeguard issue 82

Judgment Text

ORAL JUDGMENT OF HIS HONOUR JUDGE J J D STRETTELL 
Honour Judge J J D Strettell
[1]
The defendant company, Aratika Imports and Exports Limited, carry on the business of farming in the Seaward Downs area of Southland. Mr Dougal McKenzie is the managing director. 
[2]
The company operates one or more farms in the area, carrying on dairying operations. The company, as at 11 April 2002, had a sharemilking agreement with Mr and Mrs Webber. In turn Mr and Mrs Webber employed staff who at that time included a Mr Kelvin Bruce Watson. Mr Watson was employed as farm manager. 
[3]
In terms of the arrangements entered into by Mr and Mrs Webber and the company, the company's machinery was available for use when required on the farm provided maintenance was kept up to date. 
[4]
On 11 April 2002 Mr Watson was using an effluent spreader on the farm with a tractor. The machinery is coupled together; an effluent spreader is powered by a power take-off shaft attached to the tractor. On this day, whilst using the equipment, Mr Watson's clothing became tangled in the power take-off. His body then became trapped and tragically he died. 
[5]
The company is charged that, pursuant to s 18 of the Health and Safety in Employment Act 1992, it being the principal, failed to take all practical steps to ensure the deceased was not harmed while doing work for his contractors; in that the company failed to ensure that the deceased was not exposed to a hazard; namely an inadequately guarded power take-off shaft on the effluent spreader. 
[6]
Pursuant to s 50 and s 53 of the Act, the offence is one of strict liability. In terms of Civil Aviation Department v McKenzie [1983] NZLR 78Has partially negative history or cases citing, but has not been reversed or overruled[Yellow] , the onus thus is upon the Prosecution to prove beyond reasonable doubt the elements of the charge and, having done so, the onus is then upon the respondent to prove, on the balance of probabilities, that it has taken all practical steps. 
[7]
It is the case here that the company is not the employer of the deceased, but it is not disputed that in terms of the definition of ‘principal’ in the Act that for the purposes of the Prosecution that the company comes within the definition of principal and thus s 18 of the Act applies. 
[8]
Section 18 states: 
“Duties of Principals 
Every principal shall take all practicable steps to ensure that — 
(a)
No employee of a contractor or subcontractor; and 
(b)
If an individual, no contractor or subcontractor, — 
is harmed while doing any work (other than residential work) that the contractor was engaged to do. 
Subsection (1) of this section shall be read subject to section 2(2) of this Act. ”
[9]
There is by implication of the degree of distance between a principal and an employee, more limited responsibility of the principal as opposed to the employer itself. Nevertheless, there remains a degree of responsibility as is outlined. The issue here is whether the company, having regard to the relationship, has taken all practicable steps. 
[10]
Counsel referred the Court to the case of Central Cranes Ltd v Department of Labour [1997] 1 ERNZ 520. In that case the degree of responsibility in relationship is succinctly summarised. I may refer to that case. 
[11]
Giving the judgment of the Court of Appeal, Thomas J said, at page 527, line 34 and onwards: 
“It is clear that the Act adopts a preventative approach to maintaining and promoting health and safety in the workplace. Its principal object is to provide for the prevention of harm. To achieve this object employers are required to promote safety in the workplace and both employers and others associated with the workplace are subject to the duty to take all practicable steps to ensure such safety or ensure that employees and others in the workplace are not harmed. The fact that the primary obligation to procure safety rests upon the employer does not exonerate or diminish the responsibility of other persons in the other capacities recognised in ss 15 to 19 from discharging the statutory duty imposed upon them. ”
[12]
And further, at page 528, line 10 (in regard to the liability of a principal): 
“We consider that the duty imposed upon a principal under s 18, is straight-forward. It is to take all steps that are reasonably practicable to take in the circumstances to ensure that no employee of a contractor or subcontractor or individual who is a contractor is harmed while doing the work which the contractor was engaged to do. ”
[13]
Worded in this way the obligation simply reflects the terms of s 18 and s 2(2). 
[14]
And finally, at line 36: 
“The steps which are practicable for an employer to take will not, of course, necessarily be practicable for a principal to undertake. The Act does not contemplate that kind of equality. The employer's responsibilities under the Act are patently greater. Whenever, however, there is a step which it would be practicable for the principal to take in the circumstances of the particular case, that step is required to be taken irrespective of what steps might be required of the employer. ”
[15]
The issue here is whether the principal could have taken the practicable step of ensuring the power-drive was guarded in some other manner. Thus, ensuring that Mr Watson was not harmed. “All practicable steps” as referred to in that case, is defined in s 2A(1) of the Act as follows: 
“(1)
In this Act, 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 of those means; and 
(e)
the availability and cost of each of those means. ”
[16]
I will return to this section later in the judgment. 
[17]
Turning to a consideration of the evidence, Mr Phillips was the safety inspector who attended the accident on the day and subsequently provided follow-up work. He inspected the machinery and found that the power take-off shaft after the accident was uncovered and had no guard, although it became apparent, following enquiries, that normally novaflow piping was used as a guard protector. 
[18]
A piece of novaflow drainage pipe was resting on the tractor bar of the effluent spreader at the time. Significantly, Mr Phillips took measurements both of the novaflow guard and the power take-off shaft and attached universal and vacuum pump drive. The novaflow measured was 970mm, the power take-off shaft and ancillary attachments 1450mm. The difference indicated that that piece of novaflow could not provide total adequate cover as it stood. 
[19]
Mr Phillips made enquiries to ascertain what the cost would have been to cover the power take-off shaft and attendant coupling with a manufactured protective guard. The cost appeared to be in the vicinity of $370 plus GST. It was apparent from attached information provided as an exhibit from one supplier that variations of size are able to be handled in regard to a manufactured power take-off guard. 
[20]
Photographs were produced of the work subsequently carried out on the effluent spreader power take-off drive as requested by Mr Phillips. It indicated the use of an apparently manufactured item, very similar to exhibit 11 in the bundle of documents provided, together with an additional locally created galvanised iron protective cover, which covered the universal joint attached to the vacuum pump. 
[21]
Mr Phillips also produced statements from various witnesses, including one from Mr McKenzie, the manager of the company. I will refer to that statement again later. 
[22]
In cross-examination by Mr Galt, Mr Phillips conceded that if novaflow had been in place, properly secured, not in contact with the shaft, protecting the power take-off shaft and covering the universal joints, then it would be hard to say it was not a suitable product. But in this case it was Mr Phillips' evidence and view that the novaflow guard was insufficient for the purpose. It was not of suitable quality and the company could have provided a guard of more suitable quality. 
[23]
The evidence of Mr Perkins, a previous sharemilker, was that he had been on the farm as a sharemilker for some seven years in the early 1990s and onwards. In the early years there had been no guard on the power take-off shaft and he had approached Mr McKenzie about this after he had problems with the power take-off shaft when it had become detached from the vacuum pump. This was fixed by Mr McKenzie by putting in a bolt to hold it. 
[24]
On the second occasion when it happened, he said he requested Mr McKenzie to get a new power take-off shaft and cover. He said he knew from the information provided that it needed a proper guard. His evidence was that Mr McKenzie told him a new power take-off shaft and cover was quite dear and in the end Mr Perkins put some novaflow on to provide security and act as a guard. 
[25]
Mr Perkins said that from time to time as the novaflow became tatty he would put on another piece of novaflow. He described during use the novaflow guard as going round the power take-off shaft when it was working, although if you grabbed it you could stop the novaflow from turning. 
[26]
Mr Jackson was an employee of Mr Perkins on the farm for some three years from June 1998. He said in evidence that when he arrived the novaflow was already on the power take-off shaft. He thought the novaflow had been replaced twice whilst he was on the farm. He described a discussion that he had with Mr Perkins about the power take-off shaft and its state, which he considered dangerous as he thought did Mr Perkins, and that subsequently he was advised that Mr McKenzie was not prepared to provide a new guard. 
[27]
There is some confusion as to whether the above discussion and an earlier discussion I referred to are one and the same. In the end I think it is best to describe the discussions as one discussion. 
[28]
Mr Jackson described how the novaflow frayed at the end from time to time and caught in the middle where it used to hit the knuckle, i.e. universal joint. He described the novaflow travelling up and down the shaft and bits breaking off it whilst it was in use. He recalled that the last piece of novaflow put on the power drive shaft was a bit longer so that it covered the knuckles/universal joint. He said that this piece of novaflow had already started to fray and that it had spun round at least on one occasion and that something had been done to fix it somehow. 
[29]
Mr Jackson's evidence indicates he was extremely cautious in his use of the effluent spreader with the power take-off shaft drive as it was, and he had a cautious approach to the using of the spreader itself. 
[30]
Mr Webber is the current sharemilker contracted to the company and was the deceased's employer. He, like Mr Perkins, had available the effluent spreader on the same terms. Although he did not replace the novaflow himself or use the spreader, he saw it regularly and he described the novaflow as covering the full length of the shaft including the universal joints or knuckle, as he described them, but with a gap between the end of the novaflow and the vacuum pump of the effluent spreader. 
[31]
As I understand the evidence of Mr Webber, that general description of the set-up of the novaflow guard related not to any specific time but more to his general appreciation of what the form of the guard was, as opposed to any description of it at a time approximate to the accident when he saw the effluent spreader being operated by Mr Watson. Indeed, he saw the effluent spreader being worked by Mr Watson some three days before the accident. He noticed at that time that the novaflow was vibrating round, that it was turning and it was tattered at the end nearest the vacuum pump. 
[32]
He said the fraying was not of such significance to him to cause him to take any particular steps at that time to rectify it, although in hindsight he may well have done so. 
[33]
Mr McKenzie gave evidence on behalf of the company. He described arranging for the effluent spreader to be manufactured by a local engineer in 1990. He said that when he uplifted the machinery the power take-off shaft already had some novaflow over the shaft. He recalled the manufacturer advising him that it was not safe without the novaflow protection. 
[34]
Mr McKenzie said that he had never seen the novaflow turning when the power take-off shaft was operating whilst the effluent spreader was in use. He said that it was impossible for it to turn because of the bend in the shaft and the fact that the novaflow was attached to the veins in a way that did not enable the novaflow to move around together with the tight fit that the novaflow had over the universal joint by the vacuum point. 
[35]
By that I understood Mr McKenzie to be describing a state where the novaflow was maintained in place by it being pushed hard on to the extrusion of the pump face, cut on the face on the novaflow so as to create a neat fit between the novaflow and the veins protruding from the face of the pump, and maintained in place by the close fit around the face and over the universal joint. 
[36]
It was apparent, apart from one occasion when Mr McKenzie physically demonstrated the operation of the effluent spreader to Mr Watson, that Mr McKenzie did not use the machine. However, it remained parked in a position where he walked past it on almost a daily basis, at which time he took note, particularly of the oil gauge because of previous difficulties with the maintaining of the oil levels. He did say, however, that he did see it in use from time to time and never saw it in operation without the novaflow protection in place. 
[37]
In fact Mr McKenzie said in evidence that he can recall looking at the effluent spreader some two or three days before the accident. In his evidence he said that he saw the spreader and the novaflow which he thought was complete and in good order. 
[38]
This particular part of Mr McKenzie's evidence has to be compared with the statement he made to Mr Phillips on 24 April, some 13 days after the accident. On pages 4 and 5 of that statement in answer to the question “What cover and where was it positioned?” he says: 
“It was a black four inch novaflow pipe covering a drive shaft with no tractor attached. It could have been 10 days before the accident that it was here and I noticed the cover in place. About a week before the accident Kelvin took it down to beside the cowshed. As usual I checked the oil to the pump and the oil container was half full. I did not check the cover but would be quite sure, had the cover not been place, I would have noticed it. ”
[39]
Mr McKenzie in evidence said he did not replace the novaflow after Mr Webber came onto the property. It is unclear whether anyone else had. 
[40]
In cross-examination Mr McKenzie could not recall discussions with Mr Perkins about getting a new shaft and cover, although he could recall being asked, primarily by Mr Perkins, to get a proper power take-off shaft or guard at the store. Mr McKenzie said he investigated the possibility and found that, given the make of his effluent spreader, a guard unit would need to be made up with a cost of several hundred dollars and a delay of some weeks. 
[41]
He decided not to pursue it, but in the end to simply replace the novaflow on the power take-off shaft. He described Mr Perkins and Mr Jackson bitching about the need for a guard, but of no further issues arising after the novaflow had been replaced. 
[42]
When asked why Mr Perkins and Mr Jackson were “bitching” as he put it, Mr McKenzie said it was because the guard was not a manufactured one. 
[43]
On the basis of the evidence I have heard, I find the following facts proved to the required standard for the Prosecution: 
a)
That the defendant company was the owner of the effluent spreader and it had an obligation to ensure the machinery provided was safe to use. 
b)
That the defendant company, through its agent, was aware that the power take-off shaft was not safe to operate unless adequately covered. 
c)
That the novaflow used was ordinarily used for field drainage on the farm. It had no particular characteristics that made it suitable for use as a guard. 
d)
That from time to time the novaflow used on the power take-off shaft did get damaged as a result of contact with the moving parts of the power take-off shaft, particularly the universal joints or knuckles. 
e)
That the novaflow moved up and down the shaft and did not remain fixed or stationary. 
f)
That the novaflow did revolve around in a similar fashion to the power take-off shaft, but not necessarily at the same revolutions. 
g)
That the novaflow guard cover on the power take-off shaft immediately before the accident was of such a length that it did not attach to the face of the vacuum pump and did move. 
h)
That an adequate guard for the power take-off shaft assembly in question would require it to be securely attached to a non-moving part of the framework by clip, chain or clamp. That it would cover up to and beyond the universal joints on the power take-off shaft and effluent spreader. That, further, it would have the ability to cope with the anticipated movements of the spreader whilst in action, including the noted telescoping of the assembly. 
i)
The novaflow guard provided from time to time did not have the intrinsic qualities required to provide an effective guard. 
j)
That the particular piece of novaflow used prior to the accident could not have provided an adequate safeguard because of its lack of appropriate length and damage to the central part of the pipe as examined. 
k)
That the evidence of Mr McKenzie as to the condition of the novaflow in the week preceding the accident has to be seen in the context of his statement to Mr Phillips. In essence he said that he did not take specific note of the novaflow but felt he would have had there been something wrong with it. The evidence of Mr Webber was of seeing the novaflow moving and being a bit frayed some three days prior to the accident. In the light of that evidence, Mr McKenzie's evidence on this particular point could not, in the circumstances, be said to amount to an inspection of the novaflow which might support a later submission that all reasonable steps were taken. 
l)
That a manufactured guard was capable of being provided for the cost of between $400-$600 within four to six weeks of ordering. 
m)
That the deceased, Mr Watson, removed the novaflow at some time prior to the use of the machinery on 11 April. A proper inference to draw from that, having regard to the degree of experience of the deceased as deposed to by Mr McKenzie and Mr Webber, was that the novaflow was removed because of the condition it was in at the time (that having regard to its observed condition and length subsequent to the accident). 
n)
That the deceased, Mr Watson, was harmed and subsequently died by coming into contact with the unguarded power take-off shaft. 
[44]
Two issues arise from the legal submissions made by counsel. In the ingredients of the offence, in the sense that the defendant company's failure caused Mr Watson's serious harm, is this failure to be interpreted as having a direct consequence or rather is it to be interpreted as being of a contributory nature. 
[45]
The cases of Tony Galbraith Ltd v Ministry of Transport (1989) 4 CRNZ 515Has Cases Citing which are not known to be negative[Green]  (Wylie J) and Police v Kent (HC, Masterton, M33/72, 26 June 1973, Cooke J), following the English Court of Appeal decision of R v Hennigan [1971] 3 All ER 133Has Cases Citing which are not known to be negative[Green] , makes the law clear that what is required is to show the company's failure was a contributory cause of the subsequent harm suffered by the deceased. 
[46]
The onus upon the Prosecution is to prove each of the ingredients of the offence beyond reasonable doubt. Having done so, it is open for the defendant company to prove on the balance of probabilities it has taken all reasonable steps. On that basis it is accepted by the defendants that each of the following issues have been proved: 
a)
That the defendant company is a principal. 
b)
That the deceased was an employee of his contractor. 
c)
That the employee was harmed whilst carrying out his work as a contractor. 
d)
That he was exposed to a hazard, namely a power take-off shaft in operation. 
e)
That the issue is whether the Prosecution has proved that the actions taken, or not taken, had caused the harm. 
[47]
What counsel submits is that there is no evidence to show that even if a properly manufactured guard was available, that it would not also have been taken off by the deceased and there is no evidence to show any failure by the company to take all reasonable steps in that context. 
[48]
To the extent the submission is based upon the thesis that the deceased may have also taken off a manufactured guard, it is a hypothesis irrelevant to the case in hand. The issue is whether the company has, in acting in the way it has, using novaflow, having regard to its responsibilities as a principal, taken all practicable steps as required in terms of s 18. 
[49]
Given that I have found as a fact that the novaflow was not an effective guard, has the Prosecution therefore proved the company failed to take all practicable steps in terms of the definition? The company was not an off-farm principal. It was through its agents present, aware and to a degree involved in the overall operation of the farming business and provided the specific machinery involved. By inference, the company had an obligation to provide the machinery in a safe operating manner. 
[50]
Its degree of responsibility has to be seen in the light of that factual scenario and, in particular, the proximity of the principal, contractor and employee. The company was aware of the dangers inherent in the operation of the effluent spreader. It was also aware of the operational concerns relating to the machine, as advised by Messrs Perkins and Jackson. The company was capable of providing a guarding system manufactured for the specific purpose of protecting against the hazard present. It decided, for reasons that are not clear, not to obtain such a system. 
[51]
In terms of the definition “all reasonable steps”, in light of the company's involvement, the modest cost, the short-term delay, the known danger associated with the power take-off shaft, and the conveyed problems of use of the power take-off shaft to the company's agent, I am satisfied that the defendant company failed to take all practicable steps, namely to provide an appropriate guarding system. 
[52]
Had such a guarding system been provided, it is reasonable to infer that a much higher standard of protection against the known hazard would have been provided. The guard would not have been likely to be damaged in the manner that the novaflow was from time to time, requiring its removal, thus exposing Mr Watson to the unguarded power take-off shaft. 
[53]
I am satisfied, therefore, beyond reasonable doubt, that the company had not taken all practicable steps and, therefore, failed to ensure that the deceased was not exposed to the hazard. 
[54]
The defendant company may, however, escape liability by proving on the balance of probabilities that there was an absence of fault. It is apparent that the company could have, but for its choice, taken steps which would have provided protection for any user of the effluent spreader to a much higher and acceptable standard. The company did not. That was a choice it made. It did not take all reasonable steps and cannot, therefore, prove that there was an absence of fault. 
[55]
The charge is, therefore, proved. 

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