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Safeguard OSH Solutions - Thomson Reuters

Safeguard OSH Solutions - Thomson Reuters



OSH Tracker

Department of Labour v Alliance Group Limited (DC, 17/11/04)

OSH Tracker

Defendant:
Alliance Group
ALLIANCE GROUP LTD was convicted on three unrelated s6 charges, fined a total of $52,500, and ordered to pay $17,000 in reparations to three employees injured in separate accidents at the company’s Southland meat processing plants. The penalties comprised a $15,000 fine and $7500 in reparations for a worker who lost his thumb in a mechanical pelt stripper, a $12,500 fine and $7500 in reparations for one whose hand was crushed in a casing machine, and a $25,000 fine and $12,000 in reparations for a worker whose lower leg had to be amputated after it was caught in a bucket conveyor. The three incidents occurred at two different plants, over a five-week period in early 2004. A fourth s6 charge, relating to an incident in which a worker suffered hot water burns, was withdrawn (Invercargill DC, November 17). 
Industry:
Manufacturing
Sub-Industry:
Food, Beverage and Tobacco
Risk:
Machinery (trapped, crushed, cuts)
Harm:
Injury
Penalty Amount:
$22500.00
Reparation Amount:
$7500.00
Appeared in Safeguard issue 90
Defendant:
Alliance Group
ALLIANCE GROUP LTD was convicted on three unrelated s6 charges, fined a total of $52,500, and ordered to pay $17,000 in reparations to three employees injured in separate accidents at the company’s Southland meat processing plants. The penalties comprised a $15,000 fine and $7500 in reparations for a worker who lost his thumb in a mechanical pelt stripper, a $12,500 fine and $7500 in reparations for one whose hand was crushed in a casing machine, and a $25,000 fine and $12,000 in reparations for a worker whose lower leg had to be amputated after it was caught in a bucket conveyor. The three incidents occurred at two different plants, over a five-week period in early 2004. A fourth s6 charge, relating to an incident in which a worker suffered hot water burns, was withdrawn (Invercargill DC, November 17). 
Industry:
Manufacturing
Sub-Industry:
Food, Beverage and Tobacco
Risk:
Struck by moving object
Machinery (trapped, crushed, cuts)
Harm:
Injury
Penalty Amount:
$37000.00
Reparation Amount:
$12000.00
Appeared in Safeguard issue 90

Judgment Text

NOTES OF HIS HONOUR JUDGE J E RYAN ON SENTENCING 
HIS HONOUR Judge J E Ryan
[1]
As to the liability of Alliance on the matter involving Mr McNaught. Some, but not all, of that which I have said has application in this instance too. 
[2]
I note that Alliance has previously been convicted of an offence under this Statute. While those matters are there they are not to be completely ignored, but it is my view that in the circumstances of this and other cases with which I am dealing today, they are not of great significance. They must be seen in context. Alliance is a very large concern in New Zealand. It contributes in what I have no doubt is a very important way to the overall economic well being of this country. It performs a function vital for the purposes of the farming industry. It operates eight meat processing plants throughout New Zealand. 
[4]
The position looks ominous when I discovered late yesterday that on this trip to Invercargill I am to deal with three separate prosecutions against Alliance arising out of offences under this statute. One is inclined to wonder what has gone wrong. Have the systems fallen apart? I have never before encountered one concern being prosecuted in the one session of Court with three separate offences involving three instances of serious harm to three different employees. 
[5]
While I have thought about that aspect I do not think that too much is to be made of it by way of aggravating the level of penalty which should be imposed. 
[6]
While the desirable objective of the statute has to be the expectation that with the proper application of the statute, with the proper meeting of responsibilities all round, all such instances will be eliminated, and that is a consummation devoutly to be wished, I think most of us will recognise that in any field of activity conducted by humans, something is going to go wrong in some degree at some stage. 
[7]
I do not think the statute expects that any organisation shall be able to maintain an absolutely and completely foolproof situation. It might be achieved when all meat processing plants are operated by robots, but I think that prospect is a little way away yet. 
[8]
While there are these previous matters this company employs, I am told, 5739 staff over all plants. A typical 12 month period would involve eight million working hours. It is not to minimise the events which have occurred here, but it is to put them in context. I think it would be unfair of me to take the view against Alliance that these three matters coming together as they do today had all perpetrated over a relatively short period of time, 21 January, 30 January, 24 February, represent some wholesale falling short of the standards required. 
[9]
Mr Smith has developed in some detail the processes in place to address issues of safety, I have read, not in thorough detail but looked quickly through, the material which was provided. It is the fact that notwithstanding such extensive, and I think thorough, comprehensive systems, it is still possible for people to make mistakes. Having said that, it is difficult to determine what, if anything, was a mistake in the case of Mr Vass. The fact is it is not known exactly how that occurred. 
[10]
Speculation is not helpful. It may have been that his footing, as he sought to attend to his duties, was unstable, perhaps he slipped on loose coal or something of that nature. There is no warrant for supposing that he has specifically reached in in the vicinity of the moving piece of equipment so as to attend to something where he should have well known that he needed to keep his distance. We do not know. What we do know is that he was not adequately guarded against such an untoward event as did occur by reason of the absence of any safeguards or screen or safety barriers. That such might have been simply accomplished had the potential hazard been recognised is demonstrated by the fact that such was put in place in short order. 
[11]
Mr McNaught, some aspects of his matter have already been traversed. Again it is not known for certain just how it was that his hand did become entrapped in the machine. There is a suggestion that he may have at that stage slipped, but we have to recognise that Mr McNaught did lift the guard for reasons which seemed to him to be sound at the time in pursuit of what he considered his responsibilities towards his employer and getting on with the job. 
[12]
As is recognised by what was done in that case, he really ought to have been protected from such potentiality by some more failsafe system, that is of a machine being disengaged when the guard was lifted. That is the interlocking safety device. 
[13]
As to Mr Ford, he was using a particular piece of equipment which I am told had been in use for some five years. I am told that the machine had been used to process over 10 million carcasses apparently without untoward incident. 
[14]
As Mr Smith records in his submissions (para 25), the roller was identified as a hazard in the Departmental Hazard Analysis and I should think so on looking at the photographs. While I have never seen such a thing operating, the potential for something going wrong if any limbs, clothing or whatever became engaged with that is obviously very real. To quote from the warnings Be aware the roller may grab so keep fingers well away. In this case I do not think it was quite explained how it came about that Mr Ford's thumb got entwined in the pelt or roller with such a dreadful consequence, but the company pleads guilty, on the basis that there was a practical step which it did not take. 
[15]
I must say I was a little surprised on reading the recital about this matter that we have here a machine capable of such damage, it obviously has to exert considerable force in stripping the part of the pelt from the sheep or lamb, that once the machine was engaged it could not be disengaged until it came to the end of its cycle and then returned to start. That was a factor which with the advantage of hindsight was promptly recognised so now there is available a separate stop button so that in the event of any untoward entrapment of an operator's hand or clothing or something of that nature, then there is the means for disengaging the operation of the machine. 
[16]
Often when a defendant, whether a limited liability company or individual, appears for sentence in respect of a variety of matters on any one occasion, the Courts have regard to what is described as the totality principle. I do not think that it is of direct application here. I am dealing with three discrete offences which Alliance acknowledges it has committed. 
[17]
Were I considering penalty up the top end of the scale then I suppose there is some room for invoking some sort of totality principle on the basis that one must not be unreasonable about how much is levied upon a defendant company. 
[18]
I have noted the levels of penalty which are recommended to me. I am not bound by such amounts as are suggested to me in the submissions made on behalf of the informant and I must say that I very much appreciate the detailed analysis which is provided to me by Miss Waterworth. Some parts of that detail carry their own inherent problems such as the analysis of the schedules of penalties imposed in other cases and just what can be sensibly inferred from them. 
[19]
Although I say I am not bound by any such representations, I think I have to recognise that were I to exceed any such recommendations then there would be a probably justifiable feeling of indignation on the part of the defendant company, to say nothing of its counsel. Here are the experts charged with the responsibility of enforcing the statute who take the view that such and such a recommendation should be seen to be adequate to meet the objective of the statute. 
[20]
It might be thought to be inappropriate for a Judge to strike out on his own. I think there could well be a case where such a course would be warranted if a Judge had sufficient acquaintance with particular circumstances and particular locality to be able to take the view that what had been done in the past was not achieving the desired result, and something more significant is called for. I am a long way short of reaching any such view here. This is of necessity an inexact science. 
[21]
I am, for reasons already exchanged with him in hearing from Mr Smith, of the view that I should award sums in respect of emotional harm by way of ordering reparation under that head in respect of each of the injured persons. As some part of those exchanges may have indicated there are many factors to which I am required to have regard in terms of the Sentencing Act as to matters of reparation. 
[22]
A significant point is that by virtue of s 32 of the Sentencing Act I must not order the making of reparation in respect of any consequential loss or damage for which I believe that a person has entitlement under the Injury Prevention, Rehabilitation, and Compensation Act 2001. That might be described as simply another side of the obligation found in s 10 of the Sentencing Act to take into account any offer, agreement, response or measure to make amends. It is not in the same category, for example, as in the Chain Mesh case where, as I understand it, there was no liability arising under the Injury Prevention, Rehabilitation, and Compensation Act, but a significant offer had been made and accepted and I think might have even been paid. That is why the order for reparation made by the Judge in the District Court was set aside on appeal, but the fact that such payment is available and has been paid in each case, in one case I think is it that of Mr Ford there might still be assessment to come, but the fact is that he has his entitlement under that legislation. It is no part of my business today to express any views upon the appropriateness or otherwise of what is now provided under our ACC system. 
[23]
It seems to be clear that in considering the issue of emotional harm in these circumstances, and I did not understand Mr Smith to take issue with this, that I might take a general view as to emotional harm arising from these really quite dreadful incidents, although they are dreadful in different degrees. 
[24]
To explore that topic a little more, in each instance we have mature men with in each case considerable experience in their particular industry. There have been traumatic events which have brought significant changes in their lives and it is clear that each will be affected by the consequences of that matter until the end of their days. But, having said that, we must recognise that in each case it can be said to be fortunate that the consequences were no worse. 
[25]
Assessment of reparation for emotional harm is not a clear cut mathematical equation. It is a difficult matter. The assessment of the amount which is to be imposed by way of penalty, and I have to account of it to determine the total penalty to be imposed upon Alliance in each case, does not represent any attempt by me to put a value upon all the difficulties which have been experienced thus far and will still come in coping with a mangled hand, or, with the loss of a thumb or with the loss of a limb. 
[26]
Pursuing that point for a moment, it is encouraging to hear that Mr Vass, having been provided with a prosthesis, is obviously making considerable progress and was able to return to work six weeks or so ago now. I have no doubt it is difficult for him, it takes a long time for people to become accustomed to just how to use such an item and it is something which I think changes from time to time. 
[27]
I have noted that his family circumstances involved other significant change in the aftermath of this matter. Mr Smith does remind me appropriately that I think I have to stop a little way short of concluding that that has followed precisely from this. It may very well have been that this matter precipitated such changes that were made and there were other aspects, of course, with which Mrs Vass had to contend, which I can only say that in the immediate aftermath of this dreadful business there were some very difficult things with which she had to cope. 
[28]
So, while disclaiming any attempt to try and put a value on these matters, I have to recognise that amounts ordered as to matters of emotional harm can really only be described as a solatium, that is an attempt to provide some compensation over and above that which is available under ACC schemes for the consequences. Such matters have to be set at a relatively moderate level so as not to be out of scale with that which is awarded in other cases. 
[29]
It is for these reasons that I reach the view that in the case of Mr McNaught I should order that Alliance pay by way of reparation for emotional harm the sum of $7,500 and by way of fine as a penalty $12,500. The total liability on Alliance obviously $20,000. 
[30]
I have taken account of the fact that there is a joint liability as to penalty here which does not directly bear upon Alliance, but I do not think it would be right to impose a greater, nor for that matter a lesser figure, than I have imposed upon Wilsons. 
[31]
In the case of Mr Ford, I propose to order the same amount as to reparation. I appreciate that some may say, having regard to the extent of that which I have referred to as Mr McNaught's mangled hand, that how can there be comparison, but I have always had an understanding and this from some involvement with orthopaedic issues in times gone by in a different context, that the loss of thumb is a particularly difficult matter because you do not have the ability to grasp or enclose objects. It is not a question of simply comparing one digit with any other digit, it is trying to make a general recognition of the issues which arise here. 
[32]
So, in that case, $7,500, but I impose a fine of $15,000 in that case. 
[33]
I am well away from any levels which might be indicated by the amendments to the legislation, but I take into account what in the end turned out to be a very simple step which should have been taken, which was able to be taken to avoid this risk. 
[34]
There will also be orders for payment of Court costs $130 and contribution towards solicitor's fee of $250 on each of those matters. 
[35]
In Mr Vass' case it is perhaps here that the amount of reparation as being a solatium and not an attempt to try and put a value upon that which has happened. I will fix at $12,000 and the fine in that case of $25,000. 
[36]
While I note Mr Smith's reminder to me that I should not be taking particular account of circumstances not particularly complained of in the prosecution case it is the fact there here was a particular item of equipment which Mr Vass was to attend and operate on his own. As events demonstrated afterwards it was a matter where the danger to which he was exposed and which he unaccountably was subjected was a matter which could have quite clearly been dealt with. He was working in what seems to have been a relatively isolated position and on his own. But that is not a matter which I can translate into any particular level of response. I think it has to be said that there was something of a failure of analysis and precautionary steps in that case. 
[37]
In that case, too, Court costs and the same amount as to solicitor's fee. 

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