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Safeguard OSH Solutions - Thomson Reuters

Safeguard OSH Solutions - Thomson Reuters



OSH Tracker

Eno v Faulkner (DC, 10/01/05)

OSH Tracker

Defendant:
Ralph Geoffrey Eastham Faulkner
The director of a Marlborough Sounds resort, RALPH GEOFFREY EASTHAM FAULKNER, was fined $8000 under s6, $1000 under s25(3), and ordered to pay $7000 in reparations  after an employee suffered lacerations to his foot when he was struck by the propeller of an unmanned inflatable boat that he was attempting to retrieve. A second employee had previously fallen from the inflatable while using it to tow a floating jetty, and the craft was travelling in circles, under full power. The injured man paddled out to it in a kayak, but slipped as he was climbing on board. He suffered serious tendon and bone damage. Faulkner’s company, KUMBAK LTD, was convicted and discharged under s6 in relation to the same incident ( 
Industry:
Accommodation, Cafes and Restaurants
Sub-Industry:
Accommodation, Cafes and Restaurants
Risk:
Struck by moving object
Machinery (trapped, crushed, cuts)
Harm:
Injury
Penalty Amount:
$16000.00
Reparation Amount:
$7000.00
Appeared in Safeguard issue 91

Judgment Text

SENTENCING NOTES OF JUDGE C N TUOHY 
Judge C N Tuohy
[1]
Ralph Faulkner and Kumbak Limited are charged with an offence under the Health and Safety in Employment Act of failing to take all practicable steps to ensure the safety of employees while at work. Mr Faulkner is also charged with another charge of failing to notify the Secretary of Labour of an occurrence of serious harm as soon as possible after that occurrence became known to it. 
[2]
The prosecution arises out of an accident which took place in January 2004 at the resort in Punga Cove which is operated by Kumbak Limited, Mr Faulkner being the sole director of it. 
[3]
A floating jetty had broken free of its moorings and washed onto the beach. Mr Faulkner instructed a first employee, a Mr Thompson, to move the jetty back to the other side of the wharf. Mr Thompson did that by using the resort's Naiad vessel to retrieve it. The Naiad of course is a small, inflatable pontoon vessel and it had a 50 horsepower outboard motor. 
[4]
Mr Thompson motored the Naiad over to the floating jetty, collected one of the mooring ropes from the water with the intention of driving it away from the beach, one hand holding on the steering wheel and the other holding the mooring rope. Apparently he had moved the floating jetty in this manner on previous occasions. He did it standing up. He accidentally knocked the Naiad's accelerator onto full power and it accelerated. He was thrown from the vessel. 
[5]
The vessel of course was then moving on the water with no one in it and travelling in circles near to the wharf. Mr Thompson ran up to the resort, told the defendant what had happened and, according to the summary of facts, the defendant Mr Faulkner, then instructed Mr Thompson and Mr Conway, who was injured and who was the resort's bar manager, to go out to the Naiad in a kayak, jump onto it and bring it back to the wharf 
[6]
The kayak capsized as they were paddling out to it. They got back in, continued paddling out to it and Mr Conway attempted to jump on the Naiad as it went past. He slipped from the side of the Naiad, fell into the water and the uncontrolled vessel's propeller ran over his right foot, badly injuring it. The Naiad then went up on the rocks and was retrieved. 
[7]
Mr Conway was taken to Picton by boat, then by waiting ambulance to Wairau Hospital. He was treated under general anaesthetic. The propeller had severed his tendon, broken a bone in his ankle and made a number of lacerations, which were sealed with stitches and staples and his foot was placed in plaster. Mr Conway was confined to a wheelchair for a considerable time after the accident. 
[8]
I have read the report from Empower and the Victim Impact Statement and they are too long to reproduce here in full, but certainly Mr Conway was still suffering pain in his ankle some months later (not intense pain, but continuing pain), that he was having difficulty standing at that stage and that he is likely to suffer arthritis in his ankle in some years time. 
[9]
I understand that he has improved from then and is now working However, I have no doubt that the effect on his ankle will probably be life long and he may well suffer from arthritis and the like in later life. He is also being prevented from carrying out the recreational activities that he did carry out and lost substantial amounts of money from income. Accident Compensation, in his case, did not compensate him for 80% of what he was earning immediately prior to the accident because he had had a period when he was not earning at all within the months previous to that. That was taken into account, so there was a considerable loss of income, which itself created stress 
[10]
Neither Mr Conway nor Mr Thompson had any maritime qualifications, the summary says, nor did they have significant boating experience. Mr Hardy-Jones says that Mr Thompson had some small boat experience. Neither Mr Conway nor Mr Thompson received any training or hazard warnings from their employer about the operation of the Naiad. In particular, they received no training in the use of the Naiad's engine kill toggle. If that had been attached to Mr Thompson's arm when he was operating the vessel, as it should have been, when he was thrown overboard the engine would have stopped and this accident would not have happened 
[11]
Of course there are a number of other ifs and buts. The accident would not have happened, for example, if that, in hindsight, intrinsically dangerous method of trying to re-gather the out of control boat, had not been used. 
[12]
There are a number of failures by the company and Mr Faulkner to take all practicable steps to ensure the safety of the employees. Obviously there were no instructions about the operation of the Naiad at all in various respects. There was no identification of any hazard in relation to the operation of the Naiad. Mr Hardy-Jones has said this is a sort of one-off occasion and to a degree that may be true, but the operation of the Naiad must have been, in general terms, part of the standard business of this Punga Cove Resort 
[13]
The Naiad itself must have been an essential part of the business's equipment for all sorts of reasons and although the particular event, the floating jetty rolling away, may have been unusual (although it may also have happened before) and the Naiad being unmanned and operating, was probably an unusual event, I am sure it was. But in general terms operating the Naiad was not unusual at all and the employees should have been instructed on it and hazards in relation to it ought to have been considered and identified. If they had, the accident very probably would not have happened 
[14]
Also the actual method of attempting to recover the vessel seems, at least to me as a lay person, to have been obviously dangerous: to go out on a kayak and try and stop a vehicle, propeller driven, which is running around out of control in circles. I would have thought that was obviously a dangerous event. As it turned out, the vessel grounded itself of its own accord a short time later. 
[15]
The sentencing criteria for offences against the Health & Safety in Employment Act are set out in section 51A of that Act and the Courts have to apply them too often because it is standard fare for a judge in a list to face charges under the Health & Safety in Employment Act where employees are seriously harmed or worse 
[16]
The maximum penalty was increased by Parliament in May 2003 from a maximum fine of $50,000.00, which of course covers the worst possible harm including death, to a maximum of $250,000.00 fine, which was a five times increase and as I have commented before, the Courts have by no means increased the fines imposed by five times or anything like five times to what they were before May 2003. 
[17]
My view is that the Courts have insufficiently thus far taken notice of the increase in the maximum penalty and I have said that before. Nevertheless, this Court here has to take into account penalties that have been imposed in other cases and maintain at least some relationship with them, even though I do take the view that they have not increased to the degree that perhaps Parliament signalled that they should have. 
[18]
I do not intend to mention every factor which the Court is required to consider. There are very many and some of them are not relevant. I have given consideration to all of them, but I only intend to mention some of them, those that I think are significant and important in this case. 
[19]
The first one as always is the degree of culpability, that is, the degree of blameworthiness and in this case I consider that is reasonably high because the operation of the Naiad as a general matter, it must have been part of the general business of this business, that the potential for danger in the operation of a small boat like that is always there or the hazard of the Naiad posed ought to have been identified, even though one probably could not foresee exactly what happened this day. 
[20]
There was an absolute failure to train employees or to warn about hazards of the Naiad, plus there was in this case a particularly dangerous manoeuvre Of course it was undertaken by the two employees, but it was undertaken with the knowledge and in effect the acquiescence of the employer. 
[21]
The degree of harm, this is serious harm. It is invidious to have to compare the harm suffered in one case with the harm in the other. It is difficult to say this is worse than that. Cases come before the Court where people are killed They lose legs. They lose arms. They are crippled for life and to that degree the harm in this case is not as serious as many other cases. It is still serious harm. It must have been a considerable shock, pain, disruption of life, disruption of financial arrangements and potential ongoing, albeit relatively low level effect. 
[22]
As far as remorse is concerned, I have to say that there are not the indications of remorse in this case that the Courts often see. Industrial accidents are never intended and employers whose employees are injured do care and show that in various ways. There has not been in this case, follow-up by the employer to the employee in the way that I often see. In particular, it was an indicator that Mr Faulkner apparently could not find the time to attend a restorative justice conference, at least that is the information that has been given to the Court and that does not indicate to me a high degree of remorse and I do need to say that. 
[23]
As far as guilty plea is concerned, there was a fairly immediate guilty plea and that will be taken into account to the credit of the defendant. As far as deterrence is concerned, there is always in these prosecutions, the need for general deterrence. I do not think there is a particular need to particularly deter this employer. 
[24]
There has been no previous convictions and to a degree this was a relatively unusual sort of incident and there is no suggestion of any repeat. But there always is the need for deterrence in prosecutions of this nature, simply so that employees do not continue to get injured in so far as that can be prevented reasonably and employers need to know and need to be aware of that. 
[25]
Those I think are the major factors which, in my view, are important in this case. I have had regard to the maximum penalty and I have also had regard to the penalties imposed in other cases, not so much those that have been cited. Because this is a Maritime Safety prosecution, counsel have tended to look at Maritime Safety cases, but the Taylor case was totally different really from this one. There are however, many cases brought by the Department of Labour which I am aware of and have been cited to me on other occasions and I take all of those into account in deciding the general level of fine. 
[26]
In this case, both the director and the company have been charged I think it is double penalty to impose a penalty on both of them. I intend to impose the penalty on the major charge, the one where the company faces the mirror charge. I intend to post the penalty on Mr Faulkner personally. I think this is a case where in effect the company is largely the alter-ego of Mr Faulkner and I do not intend to additionally penalise the company, apart from by way of a conviction. 
[27]
The non-notification is important and serious and it will carry its own penalty, but it pales into insignificance beside the major charge. 
[28]
Reparation for emotional harm and financial consequences not covered by ACC cannot be mathematically calculated. It is hard to put a price ever on pain and any continuing disability or pain, a dollar figure, and one can only again take into account the sort of amounts that have been imposed in other cases. 
[29]
It is also necessary to look at the whole penalty because the defendant faces both the fine and reparation and in fixing both I take into account the total that will be imposed. 
[30]
I have come to the conclusion that the total penalty that should be imposed on Mr Faulkner on the charge of failing to take practicable steps to ensure the safety of the employees, is $15,000.00. I intend to impose a fine of $8,000.00 and reparation of $7,000.00. 
[31]
On the charge relating to failing to notify the Secretary, the penalty imposed will be a fine of $1,000.00. There will be Court costs of $130.00 on both. There will be a solicitor's fee of $200.00 on each charge. 
[32]
The penalty will be imposed on Mr Faulkner. On the company, they will be convicted and discharged. 

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