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Safeguard OSH Solutions - Thomson Reuters

Safeguard OSH Solutions - Thomson Reuters



OSH Tracker

Police v BJ Dakin and Co Ltd (DC, 10/11/04)

OSH Tracker

Defendant:
BJ Dakin and Company
A company specialising in the disposal of waste industrial chemicals was fined $21,000 after it was found to have transported a potentially lethal cocktail of incompatible chemicals between Christchurch and Lower Hutt in insecure and inadequately labelled containers. B J Dakin and Company Ltd was fined $15,000 under the Maritime Transport Act 1998 for breaching Maritime Rule 24A Carriage of cargoes - Dangerous goods, $5000 under s.10(2)a of the Land Transport Dangerous Goods rules and a further $1000 under s.10.2(c)(ii). The company’s environmental officer, Jennifer Ann Leadley, was fined $2000 under the Dangerous Goods rules (Christchurch DC, November 10, 2004). In March last year a chemical spill at a Lower Hutt trucking yard alerted authorities to a truck containing10 tonnes of cyanide waste products and three tonnes of chromic acid waste. The load had come from Christchurch, via the interisland ferry, with the cyanide in plastic drums. The court heard that in contact the two substances could have formed hydrogen cyanide gas, which is both deadly poisonous and highly flammable. The company was legally required not only to place the substances in secure, clearly labeled containers, but also to transport them on separate vehicles. 
Industry:
Transport and Storage
Sub-Industry:
Road Transport
Risk:
Vehicle - road (eg truck, car, bus)
Burns/explosion
Hazardous substance exposure
Harm:
None
Penalty Amount:
$21000.00
Reparation Amount:
$0.00
Appeared in Safeguard issue 90

Judgment Text

NOTES OF JUDGE J E RYAN ON SENTENCING 
Judge J E Ryan
[1]
I am to determine sentence on charges which fortunately very rarely find their way to the District Court. I have not seen matters of quite this nature before although from time to time have dealt with matters arising from inappropriate transport of dangerous goods generally at much lesser scale. 
[2]
I have a considerable amount of business waiting this afternoon so I have to get on with this matter promptly. 
[3]
The charge against B J Dakin and Company Limiting alleging an offence against the Maritime Transport Act in association with the Maritime Dangerous Goods rules and Offences Regulations is a charge which can carry a maximum fine of $30,000. 
[4]
In addition the company faces a prosecution which was initiated as an infringement offence matter. The company for reasons which I have not quite comprehended, but I think may have to do with the fact that it wished to advance an explanation rather than simply pay the infringement fee without further explanation, is liable on that matter to a possible maximum penalty which I think could be as much as $20,000, but when dealt with as an infringement offence matter the initial fee would be $5,000. 
[5]
I accept that which Mr Kirkland puts to me that I am not bound to in fact automatically apply the penalty of $5,000 but there is also the point that I am not limited by the amount of the infringement fee which might be payable and might in the exercise in my discretion impose a greater fine than that. 
[6]
Similarly in the case of the matters against Mrs Leadley which carry an infringement offence fee of $1,000, while I am not bound to apply that figure I believe that it would be within my discretion to impose a larger fine. 
[7]
The circumstances here call for a sigh of relief that the consequences were no worse. It seems to me that there was a grave failure to comply with the fundamental obligation affecting these products. They ought not to have been transported in the same vehicle. Fortunately, the only untoward event, which is reported, occurred at the end of the trip when it seems that a forklift operator managed to spill one of the items. Some part of a potentially very serious product did escape. It is the greatest of good fortune that there was not then available any of the other product with which had there been a mixture there was potential for catastrophe. I observe that the respective products which should not be mixed were at least loaded on separate pallets so that when it came to a question of being shifted by forklift there was not quite the same immediate prospect for disaster. But these products had been loaded on a truck in Christchurch towards the eastern part of Christchurch, transported obviously through a part of the urban area and transported up State Highway One to Picton and then on board a ferry. The sergeant has mentioned whether there was any assessment as to weather conditions and the like I cannot speculate in that area. The product was then unloaded and carted through Wellington to their ultimate destination. This is a serious matter. Fortunately, the consequences were no worse. 
[8]
Having said that I have to recognise that this company, as Mr Kirkland tells me, has been in business for approximately 40 years. It has a staff of 30. A substantial part of its business is concerned with dealing in waste and dangerous goods. Mr Kirkland tells me that in all its trading history it has had no instance such as the present charges. He says the company has taken pride in its procedures for the handling of dangerous goods. It seems to me that pride takes a severe dent having regard to the standard which was not achieved here. 
[9]
The company has pleaded guilty. Considerable credit must be given for that. I do not think this is a case for discharge in any respect. I note that Mrs Leadley is a person of considerable experience but she has not kept herself up to date with what the changing legislation in this field has required. It is an area where because of the potential for disaster if things go wrong it is her obligation to keep herself up to date. 
[10]
$30,000 is available as penalty against the company. Having regard to the fact that there has not been any previous such prosecution while there was potential there was not in fact any appalling result I am of the view that a fine in the sum of half that sum will suffice for today. On the prosecution the company is convicted and fined $15,000. 
[11]
On the other matters I do not think it right to impose any penalty lesser than the level of the infringement fees which were initially levied. The company has given its explanation thereby exposing itself and Mrs Leadley to potentially higher penalty, but I do not find it necessary to go further than that. However, such is the chapter of failures in this case that I do not think a lesser penalty than the amount of the infringement in each case should be imposed. It is not on those matters a question of entering conviction. Provisions of the Summary Proceedings Act avoid that and so the company is ordered to pay the amount of the infringement fee in its case. There will be costs of $130 on the summons matter. 
[12]
On the infringement offences matters I am required to order costs on those. The Summary Proceedings Act requires that. Mrs Leadley is ordered to pay $1,000 on each matter and costs $130. The company is ordered to pay $1,000 and costs $130. 

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