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Safeguard OSH Solutions - Thomson Reuters

Safeguard OSH Solutions - Thomson Reuters



OSH Tracker

Department of Labour v King & Co Limited (DC, 03/03/05)

OSH Tracker

Defendant:
D T King
A 14-year-old boy who lost the tip of a finger after an accident with a log splitting machine has been awarded $3337.92 in reparations. D T King and Co Ltd was convicted and discharged under s26(1) and s25(3)(a) of the HSE Act and ordered to pay under r56 of the HSE Regulations for allowing a worker aged under 15 to work with machinery (Invercargill DC, March 3). The defendant had a firewood yard in Tuatapere, and gave after-school work to senior pupils, as part-time jobs were scarce in the town. The injured boy had been employed some two weeks before the accident and was being shown how to split firewood. When the adult who was training him activated the ram on the log splitter, the wood slipped, crushing the boy’s finger tips against the baseplate of the machine.  The court accepted that the defendant’s failure to notify the Department of Labour within seven days, and subsequent interference with the accident scene were not intentional, and it had not known that those under 15 could not operate machinery. It no longer hired anyone under that age. The reparations reimbursed lost wages, travel and medical expenses, and included $2000 in recognition of emotional harm. 
Industry:
Wholesale Trade
Sub-Industry:
Basic Material Wholesaling
Risk:
Machinery (trapped, crushed, cuts)
Harm:
Injury
Penalty Amount:
$3337.92
Reparation Amount:
$3337.92
Appeared in Safeguard issue 92

Judgment Text

NOTES OF HIS HONOUR JUDGE P J BUTLER ON SENTENCING 
HIS HONOUR Judge P J Butler
[1]
D T King and Company Limited faces three charges laid under the Health and Safety lit Employment Act 1992 or, in respect of one charge, a charge pursuant to the Regulations under that Act. 
[2]
The first charge is under s 26(1) of the Act, which applies where an employee has suffered serious harm and where the defendant company is said to have disturbed the scene without authorisation from a Health And Safety Inspector. The second charge is under s 25(3)(a) of the Act, again where an employee has suffered serious harm and the employer company is said to have failed to notify as soon as possible after the occurrence of the harm, and the third charge is the one laid under the Regulations, Regulations 56 and 70 and pursuant to s 50(1)(c) of the Act, which is to the effect that the defendant allowed an employee, under the age of 15, to work at or with machinery. 
[3]
The defendant company pleaded guilty to all three charges on 23 November 2004. At that stage the company was not represented by counsel. 
[4]
Sentencing in this matter was originally set down for 11 January. On that occasion a representative of the company appeared, but again the company was not represented by counsel. I urged the company to take the opportunity of an adjournment to instruct counsel. The company has done so and Miss Robles has appeared for the company today. Prior to her appearance she has filed extensive submissions outlining the company's position in respect of these three charges. 
[5]
I am pleased that the company did as I was urging it to do, because a different perspective has been put on the offending as a result of the submissions which I have received from Miss Robles. 
[6]
The facts were that the defendant is a duly incorporated company carrying on business as general transport, forestry and firewood merchants. It operates in a modest way from a firewood yard at Tuatapere. 
[7]
The defendant company was the employer of Graham Paul Grieve, who was the victim in this matter. He had begun working for the company, in circumstances which I shall elaborate on in a few moments, some one or two weeks prior to the accident. At the time of the accident Mr Grieve was 14 years of age. He was just a short time away from his 15th birthday. 
[8]
On 7 April 2004 Mr Grieve was injured while assisting another employee in the use of a lop splitter. The other employee, an adult, was showing Mr Grieve how to cut wood which contained a knotty ring, which is a harm mass caused by a branch or a defect in the growing trunk. 
[9]
Mr Grieve was required to place a knotty ring of wood on a base plate of a log splitter and hold it steady while the other employee pulled the lever to activate the ram. As the ram came down on the wood, the pressure caused the wood to slide crushing the tips of two of Mr Grieve's fingers of his left hand against the baseplate. 
[10]
As a result of the accident, following hospital treatment, the tip of Mr Grieve's middle finger of his left hand was surgically amputated. 
[11]
The investigation carried out by the Department revealed the following breaches of the Health and Safety in Employment Act 1992. First, in circumstances which I shall elaborate on, the defendant failed to notify the Secretary of Labour of the occurrence of serious harm to Mr Grieve as soon as possible after it had become known to the employer. Notification of the accident was received eight days after it had occurred. 
[12]
Secondly, the company is said to have interfered with the scene of the accident beyond the extent necessary to assist the employee and without authorisation from the Health and Safety Inspector. As a result it is alleged the informant's investigation into the accident was hindered. 
[13]
Thirdly, under the Regulations, every employer is required to take all practicable steps to ensure that no employee under the age of 15 years assists with or works with any machinery. As I have already stated, Mr Grieve was 14 years of age at the time of the accident. 
[14]
On conviction in respect of all three offences the company is liable to a fine not exceeding $250,000. The company has not previously appeared. 
[15]
Before the company was represented by counsel, it filed with the Court a letter which provided an explanation in respect of the three charges. The company explained that it was a small business operating in Tuatapere. It had been running the wood splitting operation for approximately 10 years and that operation had been mainly manned by senior school pupils after school days and during holiday periods. 
[16]
The company maintained this operation because it was a source of income for children coming from the Tuatapere township which was a township at the time which had a high proportion of a lower social economic population. The pupils, who were senior pupils, worked in groups of three and worked hours to suit themselves. 
[17]
In relation to the charge of employing someone under the age of 15, the company explained that the school pupils had mates who they wished to work with and as one left another would sort out who they wanted to work with and as long as the rules were followed, the company was prepared to give the pupils the chalice to get work experience. 
[18]
Candidly, the representative of the company who wrote the letter explained that the company was completely unaware of the law at the time, but had now taken steps to ensure that all people who work pursuant to the scheme are over the age of 15. Mr Grieve was some three months short of turning 15 at the time. 
[19]
In relation to the charge of not advising the Department within seven days, the company explained that the accident had occurred at 5.20 pm on a Wednesday. On the next morning, the Thursday at approximately 8.30 am, the company, or one of its employees, had almost fully completed a notice of accident apart from one small detail. The general manager of the company has advised that he instructed that employee to forward by facsimile the form which had been nearly completed through to the Department and he assumed this had been done. 
[20]
It was only six months afterwards when the company was charged in respect of this offending that this issue became known to the general manager. He made inquiry of the employee to whom he had given the instructions to forward the form by facsimile. He said the employee was adamant that this had been done but the general manager acknowledged that the evidence “shows otherwise”
[21]
The general manager made the point in his letter to the Court that this was not a directive of the company not to report the accident, in fact it was the opposite, it being an oversight. 
[22]
In relation to the charge relating to the scene, the general manager advises that the workers were told not to return until the inspector had been advised. The accident had happened just before the Easter period, and the work area was locked off over that Easter period, thus preserving the site. But, the general manager points out the period in question was a school holiday and the young pupils were keen to earn money while the opportunity was there for them to do so and on the Wednesday after the Easter holiday, they returned to work despite being told that they were not to do so. 
[23]
They, he says, were unaware of the implication of the regulations and they were motivated by the desire to earn money for themselves while the holiday period presented itself. 
[24]
The company says that when the accident to Mr Grieve occurred, he was under supervision and was training and there was a senior employee in his presence at the time. It is said on behalf of the company that it is dedicated to safety, and hazard identification and the employees, in particular the school pupils, are constantly supervised by the depot foreman and any signs of bad work practices or habits are quickly rectified. Indeed, Mr Grieve's father had inspected the site and operation before his son had worked there and had no problem with that. 
[25]
The company says it was cooperative and frank with the inspector of the informant and has not tried to hide anything. It is said that the company is safety conscious, dedicated to training and safe work practices. 
[26]
The Court was asked for leniency in respect of these matters as the company had not previously appeared, had not been charged nor convicted in respect of any similar matters. 
[27]
The victim impact statement is important. It describes Mr Grieve as having had his fingers crushed between a block of wood and the wood splitter sustaining the following injuries. First, crushing of two fingers on his left hand; second the middle finger needing to be amputated just above the first knuckle, and third the second finger being crushed and split up its middle. 
[28]
He suffered some consequences as a result of these injuries. He had to travel from Tuatapere to Invercargill four times for treatment. The total travel costs have been estimated at about $453.60. He has had to purchase pain relief prescriptions at a cost of $44.80 and he has lost wages for the time that he was off work. It is agreed that he could not work for a period of approximately six weeks. 
[29]
Those losses are quantified. The travel expenses, as I have mentioned, S453.60, the medication $44.80, and the lost wages $839.52. There was some dispute or query raised in respect of the last item, but no alternative figure has been put forward and I accept it as being accurate. The total consequential loss for Mr Grieve is $1,337.92 and I intend to make a reparation order in that sum in his favour. 
[30]
I have regard to the sentencing principles which are applicable to prosecutions under this Act. The maximum fine for which the company is liable on each offence is the sum of $250,000. The fine for offending in this way used to be a maximum of $50,000, but in May 2003 Parliament increased the level of the fine from $50,000 to $250,000. This five-fold increase in the maximum fine represented a clear message from Parliament to the Judges who have to impose sentences in cases such as this. 
[31]
I intend to order that part of the financial penalty that I impose on the defendant be treated as reparation for emotional harm payable to Mr Grieve. I acknowledge that he has suffered serious harm. 
[32]
The sentencing principles that I need to be guided by are detailed in s 51A of the Act. They make reference to ss 7 to 10 of the Sentencing Act 2002 and ss 35 and 40 of the same Act relating to the financial capacity of the defendant. There are further in s 51A some specific factors which I deal with first. 
[33]
First there was an immediate acceptance of responsibility and a plea of guilty by the defendant. The proper discount for that acceptance and recognition is built into the financial order which I will make. Secondly, the defendant company has demonstrated remorse in respect of this matte. Thirdly, the defendant company has cooperated fully with the informant and fourthly the defendant company appears to have taken some corrective and remedial measures needed to prevent any reoccurrence of this sort of accident. Fifthly, and significantly, the company has an exemplary safety record up to now. There have been no previous convictions. There was no mention of any history of ignoring safety warnings or matters of that kind. 
[34]
Turning to the provisions of the Sentencing Act and in particular s 7, the particular purpose I concentrate on for sentencing is reparation for Mr Grieve and a sense of general deterrence in relation to other employers, to deter them from making the same sort of omissions that the defendant company has made in this case. 
[35]
I have regard to ss 8 and 9 of the Sentencing Act. In terms of s 9, the aggravating feature of this offending is the painful and permanent injury to Mr Grieve. 
[36]
I have already described the mitigating features and the company deserves and gets full credit for those matters. The company is a good employer and a responsible one. 
[37]
My finding as to the degree of culpability is that the defendant company's culpability was in the low to moderate range. 
[38]
In respect of CRN 0458, which is the charge based on the breach of the Regulation, I make a reparation order of $1,337.92, I order reparation for emotional harm of $2,000 to …  
[39]
On CRNs 0456 and 0457, on each of those the company will be convicted and discharged. There will be payment of Court costs of $130 on each of those informations and on all three informations there will be an order for payment of the informant's solicitor's costs $250 per information. 

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