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Safeguard OSH Solutions - Thomson Reuters

Safeguard OSH Solutions - Thomson Reuters



OSH Tracker

Department of Labour v Burgess & Storey Foundry Co Ltd (DC, 05/02/04)

OSH Tracker

Defendant:
Burgess and Storey Foundry Company (1989)
Failure to fit a speed-limiting device when a large industrial grinder was rebuilt resulted in an accident in which the grinding wheel exploded, killing the operator. The owner of the wheel, Burgess and Storey Foundry Company (1989) Ltd, was fined $26,000 under s.6 of the HSE Act, with the whole fine awarded to the victim’s family (Christchurch DC, 5 February.) The dead man was a senior fettler at the foundry. On the day of the accident he was using the grinder to finish some metal casings when the wheel exploded, fatally injuring him. The machine had been reconstructed from two inoperative grinders some six months beforehand. The original machines were fitted with restraints to prevent spindle speeds reaching dangerous levels, but no such device was installed on the composite grinder, and speed tests that would have detected the flaw were not carried out. Judge S.G. Erber said these failures were serious omissions as a result of which the rebuilt machine was "dangerously defective, operating significantly and dangerously over speed". He accepted, however, that the fault was not obvious and did not appear to have been detected by either the dead man or his co-workers. 
Industry:
Manufacturing
Sub-Industry:
Metal Product Manufacturing
Risk:
Struck by moving object
Harm:
Death
Penalty Amount:
$26000.00
Reparation Amount:
$26000.00
Appeared in Safeguard issue 85

Judgment Text

ORAL JUDGMENT OF JUDGE S G ERBER 
Judge S G Erber
[1]
The defendant, Burgess & Storey Ltd, this morning pleaded guilty to a charge under the Health & Safety in Employment Act, inasmuch as it failed to ensure the safety of an employee at work. 
[2]
The plea of guilty was notified to the prosecution in December of last year. Up until that time a plea of not guilty was maintained. 
[3]
The facts seem to be these. The employer was in the business of, among other things, fettling and finishing, and this case involves a grinder which was used to finish metal objects. Mr Beck was a senior employee of the defendant, and he was the senior fettler, and a very experienced man. 
[4]
At the time of the accident he was supplied with, and was wearing, all necessary protective gear in relation to such ordinary hazards as might arise from his employment. 
[5]
It appears that while Mr Beck was grinding a metal casing, the grinding wheel exploded and he was killed by material which was ejected from the machine. 
[6]
The machine was a composite machine created from two similar machines which had been inoperative. The best parts of each machine were used to create this new machine. This new machine was created somewhere in the vicinity of December 2001 to January 2002. 
[7]
The documents before me indicate that this type of machine had maximum spindle speeds which it was unsafe to exceed. To ensure that the speed would not be excessive, a speed restraining device was fitted by the manufacturer. Unfortunately, in the composite rebuild, this device was not refitted. In addition, there appears to have been a mismatch of other parts. 
[8]
The machine had a foot treadle arrangement to allow the operator to close the gap between the casing being ground and the grinding wheels. It was thought originally that this gap had been fixed too wide, so allowing the casing to drop between the wheel and the rest, but it now appears that Occupational Safety and Health's expert has come to the conclusion that the manufacturer's specifications as to the width of the gap had not been exceeded in the rebuild. 
[9]
Lastly, it is important to note that the new machine had not been adequately tested to ensure that it was working in accordance with the manufacturer's specifications. 
[10]
The prosecution contentions are that the accident happened because the grinder was working far faster than the manufacturer's specification, and that that happened because the speed restricting device had not been fitted. The prosecution goes on to say that the capacity for excessive speed could well have been detected had there been a speed test, which was not adequately done. Consequently, the machine was unsafe. 
[11]
Both the prosecutor and the defence have filed, in advance of this hearing, extensive submissions which I have had the opportunity of considering. The defence contentions are these: it accepts that the defendant did not take all steps to ensure that the machine was safe to use. Specifically, it admits that the machine ran over speed, but it does not accept that it ran over speed to a degree of 50 per cent. Looking at the papers again, I cannot fix the speed as being 50 per cent in excess, or any other excess, but I can say and it is enough to say that the machine was operating significantly and dangerously over speed. 
[12]
The defence concede that the machine was untested, and that the speed limitation device was missing. It lastly accepts that the machine was rebuilt without reference to the manufacturer's specifications. 
[13]
There is a suggestion in the defence contentions that the method of operating the machine by Mr Beck may have contributed to the accident, but at the same time the defence makes no criticism of Mr Beck. 
[14]
Mr Beck himself, it should be noted, appears to have had no criticism of the machine before the accident, which might indicate that it was not running obviously over-speed. Indeed, the defence say that the defect was not obvious to the defendant, or to the deceased, and I accept that that is the case. 
[15]
The defence draw attention to the real and demonstrated remorse of the defendant, its extensive contact with the family and other workers, and the fact that it paid the deceased's wages, including overtime, for a significant period of time. My attention is drawn by the defence to the fact it has closed the production area, and that is, if not a direct result of the accident, at least one of the factors which led to the closing of the area. 
[16]
I will touch on other matters in defence as I look at the criteria which have to be applied in this case. 
[17]
I turn now to the effect on Mr Beck's family. I have had the benefit of a lengthy and sad victim impact report, and indeed a letter from Mr Beck which was written, I think, to the prosecutor. It is clear that she and her husband had a happy marriage, that they were both working, and that Mrs Beck can now not work because of additional family responsibilities caused by her husband's death. She has lost over $300 a week, which she could have brought in had she been able to continue working. 
[18]
She says that her life has been turned upside down, and that the young children have been affected at home and in their school lives, and I can well believe that. She complains that the case has been hanging over her head for a long time, and wishes that it had been sorted out earlier. 
[19]
Looking at the criteria of sentencing — this is governed by s 51A of the Act, and by the Sentencing Act 2002 — I must have regard to the following things: the financial capacity of the defendant, the degree of harm done, the safety record of the defendant, whether or not a plea of guilty has been entered, whether or not remorse has been shown, what co-operation there has been between the defendant and investigating authorities, and what remedial action has been taken by the defendant. 
[20]
As to culpability, a machine such as this is a dangerous device, and if it is rebuilt the manufacturer's specifications must be met, and the machine tested to ensure that. This was not done, and it was a serious omission. 
[21]
To the extent that the defence suggested there may have been operating error, even if that was so, and it is by no means clear that it was so, it was the sort of error which was preventable by a proper assembly of the machine. 
[22]
As to the financial capacity of the defendant, no submissions are made in that connection. The degree of harm is obvious. The safety record of the defendant cannot be ignored: it is a company which operates in a dangerous area of work, it has a very good safety record, and this has to be given effect to. I particularly note that Mr Beck was equipped with all the necessary safety equipment to deal with the inherent dangers in an ordinary operation of the machine he was working with. 
[23]
As to the remorse, co-operation and remedial actions, I say this: the prosecution's view as to co-operation is guarded. It says that although the employer did co-operate at the initial stage, and access to the machine at that point was not denied, there is the suggestion that access to the machine on a later occasion was denied, at least at first, and there is the further suggestion that the machine was not quite the same machine as caused the accident — in other words there had been things done to it, if I can put it in that rather vague way. 
[24]
I must, however, emphasise that the defendant did not impede the inspectors immediately after the accident, and indeed co-operated fully with them. At the scene, there was full co-operation. It was later that the defendant says it was seeking legal advice before releasing the machine itself to the prosecuting experts. 
[25]
The defence says that the employer, the defendant, did everything which a good employer could do to ensure a reasonable and proper co-operation with the investigating authorities. 
[26]
As to the plea of guilty, a plea of not guilty was entered in February 2003 and maintained until late December of last year when a plea of guilty was indicated. By that time a three-day fixture had been arranged and the case was fully prepared by the prosecutor. The prosecutor alleges a dragging of the feet in relation to the plea of guilty, which is denied by the defendant. 
[27]
I have to say, though, that objectively speaking, it should have been obvious by mid-year that the cause of the accident was one for which the employer was responsible, and the plea should then have been notified. 
[28]
Looking at the Sentencing Act in s 7, the Purposes of Sentence, I emphasise the necessary deterrent aspect of sentencing in this sort of case, and the necessity to hold the employer accountable. 
[29]
I must also provide for the interests of the victims. I do not ignore the Principles of Sentence set out in s 8. The aggravating features seem to me to be that Mr Beck was killed because he was operating a machine supplied by his employer, which was dangerously defective, where the defect could have been discovered by testing which was not done, or obviated by compliance with the manufacturer's specifications. 
[30]
The mitigating features are firstly the plea of guilty, although it has to be said, as I have already done, that the employer's culpable default was obvious from a relatively early time. 
[31]
I consider as mitigating features the behaviour of the defendant towards the widow, which has been decent, concerned and reasonably generous. I note also its good behaviour towards the shocked staff. Steps have been taken to ensure that there will be no repetition, and those steps have been considerable and proper. 
[32]
Had there been a plea of not guilty maintained and a conviction after a defended hearing, because the defendant's failure, in my judgment, is a serious example of a breach of duty, the defendants could have expected a fine of some $35,000, together with considerable attendant costs, perhaps more. Because of the mitigating features, and giving some but not maximum allowance for the plea of guilty, I impose a fine of $26,000. 
[33]
This offence occurred before the Sentencing Act which came into force on 1 July 2002. It is the case that in those circumstances all or part of the fine may be awarded to the widow and/or her family. It is unfortunately not the case that this can be done in relation to similar occurrences occurring after the commencement of the Sentencing Act. I direct that the whole fine be paid to the widow, and I am confident, having read what she has to say, that she will protect the interests of her children. 
[34]
There will be costs awarded of $130 court costs, and a solicitor's fee of $1200 because the prosecution was fully prepared for a defended hearing. 

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