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Safeguard OSH Solutions - Thomson Reuters

Safeguard OSH Solutions - Thomson Reuters



OSH Tracker

Department of Labour v Stone Green Ltd (DC, 15/10/04)

OSH Tracker

Defendant:
Stone Green
Stone Green Ltd (formerly Interclean Ltd) was fined $5000 under s.6 and ordered to pay $85,000 in reparations following an incident in which a welder suffered severe head injuries and multiple fractures when he fell 6.5 metres from the elevated tank of a truck. The injured man, who was on his first day with the company, had climbed onto the tank in an attempt to release the hoist that was holding it. As he used a cutting torch to remove a bracket that had jammed the hoist, it gave way suddenly (Manukau DC, October 15). 
Industry:
Manufacturing
Sub-Industry:
Metal Product Manufacturing
Risk:
Fall from height
Harm:
Injury
Penalty Amount:
$90000.00
Reparation Amount:
$85000.00
Appeared in Safeguard issue 89

Judgment Text

NOTES OF JUDGE C HENWOOD ON SENTENCE 
Judge C Henwood
[1]
Stonegreen Ltd was formerly Interclean Ltd and it has been charged that on or about the 8th May 2003 did commit an offence against s 6 and s 51(a) of the Health and Safety and Employment Act 1992 in that being an employer it failed to take all practical steps to ensure the safety of an employee, namely Kevin Russell Hodgetts, while at work in that it did fail to take all practical steps to ensure the said Kevin Russell Hodgetts was not exposed to the risk of a fall while carrying out gas cutting work. 
[2]
This, like many cases of its kind, is an absolute tragedy. When things happen in the workplace that are without deliberate intent but there are certain responsibilities that employers must undertake in order to keep their employees safe. That is all set out in the legislation and that is what we are looking at today. 
[3]
The accident happened on the 8th May 2003 and the first calling of the matter in Court was the 12th December 2003. The company entered a not guilty hearing at that time and has explained that it had some disputes with the original Summary of Facts and wanted to proceed to a not guilty hearing. On the 13th September of this year it did however change its mind and change its plea to guilty. Mr Penlington, I believe, counsel for the defendant had come on in and around that time and they were able to reassess and have a change of heart about the matter. A new Summary of Facts was negotiated and they have in fact pleaded guilty. 
[4]
The case was then adjourned off for sentencing and that is because in this case we have a serious outcome for the employee. There can be a lot of workplace accidents with different degrees of responsibility and injury, some of them more serious than others but in this case, sadly for the worker he has had very significant damage to his health and therefore the sentencing is very difficult, both from the victim's point of view and from the company's point of view. 
[5]
The Summary of Facts tells us that the defendant company carries on an engineering workshop for the maintenance and building of industrial cleaning and coating tanker trucks and on the 8th May Kevin Hodgetts was the employee having been taken on as a welder he had managed to get some qualifications as a welder, although he was a new worker, this was his first day at work and he would have been what you would call the person newly qualified in welding. He would have to building up his experience over a period of years. This accident happened on his very first day at work. 
[6]
They were dealing with the tank of a truck that had been elevated about 6.5 metres from the workshop floor and we have got photographs that are before the Court of that truck so we do have a clear picture of what this tanker looked like. It seems to have been an enormous piece of equipment. Something had gone wrong, the hoist on the truck had become jammed on a cross bracket which had been welded to the frame and was providing support to the tank and the bracket was preventing the hoist from being lowered. A hydraulic valve had been freed on the hydraulic ram to see if the tank could be lowered. Whilst this was unsuccessful in lowering the tanker, there was no oil in the hydraulics resulting in the hydraulics being unable to hold the tank and something occurred while Mr Hodgetts had climbed up on the back of the tank to try and cut across the bracket free with an oxy-acetylene gas cutting torch and that heat caused the bracket to expand, free the hoist, which came crashing down and Mr Hodgett lost his grip on the tank and he fell to the workshop floor sustaining injuries. 
[7]
At the time he was not wearing a safety harness and he did not have any means of arresting his fall and he also did not have a working platform from which to carry out this welding work satisfactorily. 
[8]
Now there has been a little bit of a dispute concerning circumstances surrounding him climbing up on to the tanker. Because the company pleaded not guilty originally there has not been able to be a full, clear gathering of facts on the credibility test as to whether Mr Hodgetts climbed up on the tanker of his own accord or whether he was instructed to do so, or whether he was instructed to wear a safety harness or not. The company's position is that there were a number of people that could have carried out this work and that there was a safety harness and it was the expectation that no work would be done until the bracket was welded on, which would take a couple of hours and then a safety harness be put on before the person, whoever it was that was told to do this job actually went about it. 
[9]
Now, the company, however, was taking that position, it also accepts however it was Mr Hodgett's first day, that he was a new employee and that they should have provided a suitable working platform which would have been the best way of approaching this work and that he should have been supervised throughout. He was seen on the tank and the Court is in no position to know whether he commenced that job with his own initiative or not. What the Court is quite certain about is that the company as his employer undertaking what is identified as a hazardous job, should have been supervised at all times and assisted in undertaking this work and the Court has read the submissions given to it by the Department, and the Department has put in submissions a considerable number, 12 pages, together with attachments which I have read and can assure you that I have had a look at the decision of the Department of Labour v De Spa & Co Ltd 1994 1 ERNZ and OSH v ENZA Limited, Claymark Sawmills Ltd, Touchdown Productions Limited, Clutha Chain Mesh Products Limited. I have read those cases in order to give me some kind of context when fixing the fine and reparation in this matter. 
[10]
It is of course relevant for the Court to take into account denunciation and denounce bad behaviour on behalf of the company or any companies that have been prosecuted under this section and in this case of course the supplying of a secure working platform was necessary and working at heights is a dangerous undertaking. Also taking into account, and I agree with the Crown on this, that this was a non routine piece of work, something gone wrong with this truck, and it needed some skilful assessment and supervision in order to get this job fixed, perhaps in a creative way because it was not routine work, some problem had occurred. Mr Hodgett being on his first day at work of course is a very significant factor. 
[11]
Deterrence is also a matter under s 7(1)(f) of the Sentencing Act and we do not want companies to be cavalier in their attitude towards the workplace and the Crown submit that in this case the accident would not have occurred if the company had ensured that Mr Hodgett did not climb on to the back of the tanker until it had been properly secured and a suitable working platform had been provided for him to carry out the welding work. 
[12]
The severity of the harm done of course was significant to Mr Hodgetts. Nothing that I can order today can turn the clock back in respect of the outcome for him. It was a hazardous job. The truck collapsed and the hurt to him has been considerable and of course he cannot retrieve the situation and he has a child to look after and he will not be able to be a welder after this date and he has suffered medical injuries as set out in the report, which includes significant brain damage and other matters for him. I have read that and all of that can be read into the record. 
[13]
I actually think that this is a case where it is to the medium to high end if not at the very serious end of behaviour by the company. I have listened carefully to the company's submissions and the victim's and their family have pointed out that they have suffered as a result of there being no remorse expressed by the company. I would like to underscore today that Mr Penlington on behalf of the company has expressed remorse and regret that this accident has happened but it is true to say that it has been a very long time coming in any direct way and that the victim has felt that he has been overlooked and that the company did not care about him. Hopefully at the end of today the victim will feel better because the company has come forward and has been prepared to plead guilty and has also acknowledge it is prepared to pay a considerable fine in reparation in respect of this matter. 
[14]
So whilst remorse was slow in coming, it is here today. I have to look at this in good faith and hope that it is not just being expressed in order to mitigate the level of fine and that the company is thinking only of itself and not of Mr Hodgetts but I am taking it in good faith in that it is now being expressed to the family in open Court through their lawyer and therefore that is accepted. 
[15]
There was some point raised by the Crown that there was no co-operation by the company regarding the finding of the facts of this matter until very recently and I think that is probably very fair comment. They had pleaded not guilty. They are not obliged by law to do anything to incriminate themselves but it made it difficult to try and gather clear facts surrounding the accident and that is why today I am not sure exactly how it occurred because the complainant of course cannot remember the damage that has occurred to him through head injuries. 
[16]
The company is a company of reasonable means and I have been told that they formally regret the accident and express remorse but they are able to pay the fine if a fine is the way which it is done. They accept responsibility for failing to supervise Mr Hodgetts or failing to provide a platform. They see that their culpability is in the low to medium range, They feel that their point of view is that their supervisor told whoever was going to do that job, including Mr Hodgetts, that they were to wear a safety harness and that those instructions were not followed and had he worn a safety harness then all matters of the accident may have been able to be avoided. 
[17]
However from the Court's point of view that does not really cut a lot of ice in respect of this legislation because it is the complete responsibility of the company through its supervisors on the job to see that their workers are kept safe and under the circumstances and looking at the photographs and the facts that surround it, I think that it was an extremely hazardous and unsafe strategy for an employee on his first day to be climbing up on to that tank, doing the work without any other senior and experienced personnel there to assist and guild and keep him safe. There is no platform provided. I even have difficulty as a layperson seeing how that safety harness could have been put on but I accept that it was possible but how Mr Hodgetts would have been able to do that on his own I don't know. 
[18]
However, I have listened also, there has been a person in court to assist with reparation. I understand that because Mr Hodgetts had only been working a short time he was not able to qualify for ACC for wages but he has had some assistance and has been receiving funds for his special needs. There is a Reparation Report outlining to me the way the family have felt and what they have had to face as a result of taking care of him and the difficulty that he has having to look after his family obligations. He has a 12 year old son and the sadness and disappointment of not being able to be a full and proper father to his young son, all of these things in human terms are tragic for us a11 and I am sure that the company, now it has focused its mind, will understand the tragedy it is for this worker. 
[19]
Having said all of those matters, of course the fine that you can face for this is $250,000 which is a very large fine indeed. Very difficult always to try and strike a fair and just balance, taking into account the prosecution, the company's remorse, culpabilities, denunciation and all the aggravating features and the mitigating factors. We do note the company has not been before the Court or prosecution before, that they are quite a substantial company and they have not had any difficulties with complying with regulations and obligations as an employer in the past. So they must be given credit for that. And I think they can be given some credit for their guilty plea, albeit coming late in the piece. 
[20]
Having said all of those matters. The company will be convicted and fined $10,000. There will be an order for reparation of $85,000 to be paid to the victim in this matter. There are Court costs of $130. 
[21]
I think there has been more involved, there will be $500 solicitors fees ordered. 
[22]
The reason I have split it the way I have with the lower, well it is not lower in any way looking at it but the fine less obviously because of wanting to make the reparation high as I felt that that was the way that the prosecution and all parties would seek it to be. Thank you. 

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