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Safeguard OSH Solutions - Thomson Reuters

Safeguard OSH Solutions - Thomson Reuters



OSH Tracker

Department of Labour (Health & Safety) v Todd & Pollock Crane Hire Ltd (DC, 10/03/05)

OSH Tracker

Defendant:
Todd & Pollock Crane Hire
The employer of a line mechanic electrocuted during power pole replacement work was convicted under the HSE Act without penalty, because the judge believed a company insurance payout and voluntary payment to the man's partner satisfied the reparations aspect, and high fines should be reserved for risk-taking companies.  Judge Thomas Ingram convicted and discharged Areva T & D New Zealand Ltd under s6 (Whakatane DC, April 12). In a separate hearing a month earlier, Judge Stan Thorburn fined Todd & Pollock Crane Hire Ltd $15,000 under s15, and ordered it to pay $30,000 in reparations, while its employee, crane operator David Morris, was fined $2500 under s19(b) and ordered to pay $5000 in reparations (Auckland DC, March 10).  Areva had contracted Todd & Pollock to move the poles. As Morris’s crane was lowering a pole to the ground, a wire rope on the crane contacted live 50Kv transmission lines, electrocuting the Areva employee, who was leaning on the crane's outrigger.  Areva had not identified the live line as a hazard at the tailgate meeting before work began, the work was not planned to ensure a safe operating distance was maintained, and no observer or dogman was appointed.  Sentencing Areva, Judge Ingram said the failure was that of a supervisor on the day. As Areva provided $100,000 death cover for all employees, and had paid an additional $38,000 to the deceased's partner, nothing more could properly be required of it, he said, and he ordered it convicted and discharged.  Judge Thorburn noted both Todd & Pollock and Morris had shown remorse, and attended a restorative justice conference. The company had paid the deceased's partner $4000, set up an educational trust fund for her children, and offered reparations of $30,000. 
Industry:
Electricity, Gas and Water Supply
Sub-Industry:
Electricity and Gas Supply
Risk:
Electrocution
Harm:
Death
Penalty Amount:
$45000.00
Reparation Amount:
$30000.00
Appeared in Safeguard issue 93

Judgment Text

NOTES OF JUDGE S A THORBURN ON SENTENCING 
Judge S A Thorburn
[1]
The above named defendants were sentenced together in a special sentence hearing on 24 February 2005 at 9.00 am. At the conclusion of submissions, the Court was required for other matters and I announced the sentence with reasons to follow. The sentence imposed on Todd & Pollock Crane Hire Limited was a $15,000 fine, Court costs of $130 and reparation order of $30,000; and on David Morris, a fine of $2,500, Court costs of $130 and a reparation order of $5,000. 
[2]
Todd & Pollock subcontracted to carry out work on a power line between Edgecumbe and Waiotahi in the Bay of Plenty over rugged terrain. Transpower New Zealand Limited had contracted to Alstom T & D NZ Limited for the work, a portion of which again had been subcontracted to Todd & Pollock. David Morris was a crane driver employed by Todd & Pollock, who was working a 20 ton crane on the site on 20 February 2004. Whilst under his control, the boom of the crane touched a live high-voltage electricity cable, resulting in the death by electrocution of Andre Mokomoko, who was an employee of Areva, working on the site, and who at the particular time was leaning upon a metal stabilising foot at the extremity of the crane. Todd & Pollock have been charged under ss 15 and 50(1)(a) of the Health and Safety Employment Act 1992, that being an employer it did fail to take all practical steps to ensure that the said Andre Mokomoko was not harmed by the actions of its employee, David Morris, while at work in respect of the use of a mobile crane in the vicinity of overhead powerlines. 
[3]
David Morris has been charged under ss 19(b) and 51(a) of the Health & Safety Employment Act 1992 in that he failed to take all practicable steps to ensure that no action of his, while at work, caused harm to Andre Mokomoko in respect of the use of the mobile crane in the vicinity of overhead powerlines. 
[4]
Both the company and David Morris, early after having been charged, showed their respective acceptance of responsibility and breach of statutory obligation and pleaded guilty. 
[5]
The deceased leaves a partner and very young, dependent children. I seem to recall being told, or reading in some of the material, that the deceased was about 30 years of age. 
[6]
Counsel have provided useful memoranda covering their submissions and have spoken to them. 
[7]
The matter was adjourned on 24 November, after pleas were formally taken, in order to permit restorative justice conferencing to take place between the deceased's partner and Mr and Mrs Pollock, the couple behind the company, and Mr Morris, the crane driver. Such a meeting was successfully held and the Court has been greatly assisted by the report thereof. 
[8]
The company is a small family business, and has been operating as such for something like 20 years. It, and the Pollocks, have a very good record and reputation, and it is common ground that, through the Pollocks, the company has readily accepted responsibility and demonstrated real remorse. 
[9]
It is also common ground that there is extraordinary remorse and grief for the incident and his connection with it on the part of Mr Morris. He attended the deceased's Tangi. He is a wage earner on but average income with no significant assets, and is servicing a fairly substantial mortgage for his circumstances. His commitment to compensation and/or reparation is unquestioned but his circumstances and ability to achieve anything of significance is limited and he is hopeful that he will not have to sell his house to meet any obligation. As far as the company is concerned, likewise it is promoted as anxious and willing to do whatever it can to assist the deceased's partner and her children by way of compensation and/or reparation, and although it is presented as a small company which could struggle, it is said to be in a position to meet any financial obligation made against it. 
[10]
The breaches of obligations which the informant puts forward as the basis of culpability for the defendants include four salient factors: 
(i)
Failing to identify the powerline in the circumstances. 
(ii)
Failing to appoint, designate or use a dogman (lookout) when performing work in the vicinity of live powerlines. 
(iii)
Infringing a “four metre rule” of the industry which ought to prevent any encroachment within such a distance to a live wire. 
(iv)
Operating the offending crane whilst there was visual impairment due to the sun. 
[11]
The first three of the above points speak for themselves. The fourth can be explained very simply by Mr Morris' acceptance that from the operating seat of the crane at the particular time, his vision was impaired by the direct glare of the sun. 
[12]
Both defendants are liable to a maximum fine of $250,000. As a result of an amendment in May 2003, maximum penalties were increased fivefold, obviously to demonstrate the legislature's intention to signal the seriousness of workplace incidents of harm to employees. 
[13]
From an objective assessment of the statutory scheme, previously decided cases and sentencing principles, the informant suggests that, for the company, taking into account the maximum penalty and mitigating factors, a total financial outcome of around $100,000 would be appropriate. For Mr Morris, it suggests $25,000. 
[14]
Predictably, counsel for the defendants suggests less. It was refreshingly apparent that, whilst submitting lesser amounts, the defendants were in no way wanting to be parsimonious or reluctant. The fine sought by the informant against the company would be the highest imposed to date in any circumstance. The informant suggests that the breaches of obligation are serious, and the fatality adds to the importance of firmly recognising the intent behind the increase of penalties, by reflecting that in a deterrent and denunciating way. 
[15]
I concluded that this was not a case which ought to be regarded as evoking a penalty that was dominated by denunciation and deterrence, because of the personal circumstances and attitudes of the persons who are the human face of the defendant company and, of course, Mr Morris. 
[16]
In this regard, the restorative justice conference is relevant and, under s 8(j) of the Sentencing Act 2002, I am bound to take into account its outcomes. 
[17]
Obviously, substantial financial penalties are expected by the defendants and within that acceptance I consider that the purposes of denunciation and deterrence are addressed (s 7 Sentencing Act 2002). None of the aggravating features listed in s 9(1) of the Sentencing Act apply but some of the mitigating factors in subs (2) do, namely the plea of guilty, remorse and previous good character. The restorative justice conference addressed in detail offers to make amends and agreements consistent with that, and therefore the combined emphasis of the specific mitigating factors of ss 9(2) and 10 obligating the Court to take into account agreements to make amends, and s 8(j) obligating the Court to take into account restorative justice processes, lead to a significant mitigating emphasis that ought to produce a result far less punitive than that sought by the informant notwithstanding the amendment increasing penalties. 
[18]
The human face of the defendant company, namely the Pollocks, and the other defendant, Mr Morris, participated in a meeting with the deceased's partner that validified and verified remorse far beyond what could ever be conveyed in a bare submission by counsel on such matters. 
[19]
The Pollocks took Christmas presents for the deceased's children. There were tears. There was patent and undisguised remorse and sorrow, which was graciously received and acknowledged. There were reflections on the life of the deceased and talk about the future of his children. Friendship for the future was promised among all concerned and, with more than mere words, Mr and Mrs Pollock on behalf of the company offered and indeed immediately did pay $4,000 to enable the deceased's partner to effect repairs to her car so that it would be available for family outings over the Christmas period. Furthermore, the Pollocks volunteered contributions to an education trust for the two boys and, at the time of sentencing, had instructed their lawyer to establish the trust with $6,000. 
[20]
In addition, an amount of $30,000 was offered as a lump sum for reparation. The participants agreed that any final reparation amount should be left to the Judge. 
[21]
Section 10(1) of the Sentencing Act 2002 requires the Court to take into account any offer of amends; any agreement by the offender to the victim to remedy the wrong; any measures taken to make compensation; any apology; and any steps to otherwise make good the harm (subss (a), (b) and (d)). 
[22]
Subsection (2) requires the Court, in deciding to what extent the above matters should be taken into account, to also consider whether any gestures are genuine and capable of fulfilment and whether they have been accepted as expiating or mitigating the wrong. 
[23]
In respect to subs (2), there is no shadow of doubt in this case that the offers are genuine - they have already been implemented largely - and also that they have been accepted in utmost good faith, with obvious elements of expiation and/or mitigation of the wrong. 
[24]
Accordingly, I imposed the aforementioned penalties. 
[25]
For the company, the overall financial obligation is considerable, totalling $45,000. The Sentencing Act 2002 does not permit a portion of any fine imposed to be payable to a victim (as was previously possible). Thus the overall intent of the Court to bring down a penalty of $45,000 is divided between a fine of $15,000 and a reparation order of $30,000, with Court costs of $130. 
[26]
As for Mr Morris, his circumstances simply do not permit an outcome that might put strain on his humble income and his house at risk. There is no doubt in my mind that the deceased's partner would be horrified if, indeed, the Court sentenced Mr Morris at a level which would introduce such risks. The total imposition I consider appropriate for him is $7,500 divided between a fine of $2,000 and a reparation order of $5,000, with Court costs of $130. 

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