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Safeguard OSH Solutions - Thomson Reuters

Safeguard OSH Solutions - Thomson Reuters



OSH Tracker

Department of Labour v Paul Makuch Roofing Ltd (DC, 29/06/05)

OSH Tracker

Defendant:
Paul Makuch Roofing Ltd
PAUL MAKUCH ROOFING LTD was fined $6000 under s6 and ordered to pay $12,000 in reparations after an employee fell 5m while working on a wet steel-covered roof. The company owned fall protection equipment but did not have any on site. The injured man suffered a compound fracture of his lower leg and multiple ankle fractures (Thames DC, June 29). 
Industry:
Construction
Sub-Industry:
General Construction
Risk:
Fall from height
Harm:
Injury
Penalty Amount:
$18000.00
Reparation Amount:
$12000.00
Appeared in Safeguard issue 94

Judgment Text

NOTES OF JUDGE J E MAZE ON SENTENCING 
Judge J E Maze
[1]
I must now sentence Paul Makuch Roofing Limited on a charge that being an employer it failed to take all practical steps to ensure the safety of an employee, Nicholas Bennett, while he was at work, in that it failed to take all practicable steps to ensure that Nicholas Bennett was not exposed to the risk of a fall while roofing a domestic dwelling. 
[2]
The victim fell 4.5 metres from the roof of a domestic dwelling down to the ground falling across an intermediary roof along the way. He was working on a wet roof. He was not using a harness and there was no edge protection in place. He sustained appalling multiple fractures to his right leg. He has undergone surgery and continues to have treatment. The offence occurred in October last year. He is still not able to work. He is in receipt of Accident Compensation and it is not known at this stage when it is likely he will be fit to return to work or indeed be able to work in a changed capacity. 
[3]
The maximum penalty for this offence is a fine of $250,000.00. Section 51A Health and Safety in Employment Act 1992 makes it plain that I must apply the Sentencing Act 2002, in particular the provisions of s 7 to 10 both inclusive, and have regard to the constraints under that Act, particularly as regards the financial capacity to pay a fine or reparation. 
[4]
I must have regard to: 
the degree of harm; 
the previous safety record of the defendant to the extent that it shows any aggravating factor is absent; 
a plea; 
the indication, if any, of remorse; 
co-operation by the defendant with occupational Safety and Health investigators; 
any remedial action which has been taken. 
[5]
The aims and principles of the Sentencing Act 2002 have been taken into account by me. In particular, I have regard to the fact that I must impose a sentence which: 
holds the defendant company accountable for the wrong it has done; 
which instils in it a sense of responsibility; 
which deters it and speaks to others by way of deterrence from repeating this kind of situation; 
which provides for the victim to the extent that I can; 
which provides for the protection of the public and in that regard I refer to other persons in the employment of the defendant company. 
[6]
I must also have regard to the defendant company's ability to pay a fine. 
[7]
I have carefully considered the submissions made by both the informant and the defendant's counsel. The informant submits that the aggravating factors include an assessment that the harm done here was serious. I accept that is so. The victim impact statement makes it plain that the victim has suffered significant life changes. At 22 years of age there has been a significant shortening of his horizons in life. It is emotionally very difficult for him to accept that, particularly as a young man. He is facing ongoing medical treatment. There is a (low) risk assessed by the supervising medical practitioner of amputation of the lower right leg (but a risk nevertheless). He relies on others for doing what would simply be ordinary daily tasks. He is unable to play sport and he used to do so and enjoy doing so. 
[8]
To date there has been no financial offer to make amends and given the terms in which the Sentencing Act 2002 deals with those matters, I have to say that it is a pity that that has not been addressed in a more concrete way. There have been some practical efforts made to assist and I will come to those shortly. The informant submits that the sentence ought to involve a consideration of general and specific deterrence. The informant refers to the high rate of accidents in the workplace in New Zealand and the corresponding high level of duty on employers to ensure workplace safety. The informant refers to the extent of the fault in ties case. The defendant, the informant submits, failed to take simple, fundamental precautions against what would be the most obvious risk to the safety of its employees engaging in the company's core business activity. The informant also submits that while it is pointed out that the victim was a leading hand with some level of responsibilities, the victim had almost all his practical experience while working for the defendant company. Issue was taken with that on the basis that he did work for some two years, or thereabouts, with another company. But in practical terms his career has been based with this company and I accept in broad terms the thrust of the informant's submission in that regard. The informant says the defendant company has had nine improvement and prohibition notices or warnings issued by OSH since February 2001. I understand, and take into account, the fact that there has been no criticism in terms of smaller jobs such as domestic roofing jobs as an issue here. 
[9]
It is suggested that as the defendant had, to some degree, delegated certain responsibilities to the victim as a leading hand that there is some delicacy in assessing the inter-play of the various responsibilities but as the informant points out, I can do little in terms of that. The Act makes it clear that the defendant company's responsibilities are not diminished by any responsibility undertaken by a victim in this situation and to the extent that is the issue then I must apply the Act. 
[10]
The informant submits that the defendant's culpability is high. The informant accepts that the defendant has no previous convictions under the Act and I am told that the company has been in operation for some eight years. The informant accepts that proper credit must be given for the guilty plea and for its co-operation with Occupational Safety and Health and recognition must be given to the fact that appropriate remedial action has immediately been taken. But the overall proposition from the informant is that this offending is very serious and that I should have regard to, in particular, three decisions in which similar, or broadly similar, types of offending came to the notice of the Court. 
[11]
In the First Light decision a fine of $6,000.00 was imposed with a smaller amount by way of reparation. It is submitted that that should be seen as very much at the lower end of the scale. This was a new penalty level in operation at that point and the injury in this particular case is more long lasting. 
[12]
I have been referred to the Dunedin Roofing Systems where a fine of $12,500.00 was imposed and simply for reference to a case where there was in fact an amputation I have been referred to Claymark Sawmills where a fine of $5,000.00 was imposed but a very significant amount fixed for reparation. 
[13]
The essence of it is that the informant submits that a penalty incorporating reparation of $25,000.00 and a fine of $15,000.00 is appropriate. The informant also seeks a solicitor's fee. 
[14]
I have been referred by the informant to some printouts from what would effectively be the informant's own records of files. It is a little difficult for me to consider internal memoranda which might reflect someone else's opinion of how a sentencing was structured. It seems not wise to do that. There is a risk. But to the extent that I can extract some salient facts as to plea, injury, and outcome, then I do that. I do, however, urge the informant to consider that it is a simple matter to obtain sentencing notes. That is what properly ought to be submitted or a very much reduced schedule. 
[15]
Turning then to the defendant's submissions. Mr Hammond submits that there a number of facts which are not properly taken into account in the informant's submissions. He says that a safety harness was available for use. In that regard it does not appear that the harness was taken to the job after there had been some sort of assessment made of the task ahead by another employee of the company and the victim. Perhaps, importantly, I should see that as “there is no indication of a failure to use the harness in breach of a clear direction that it should be used”. I do not see that referring to its “availability for use” takes the matter any further. While it is submitted that the victim had other forms of safety equipment, in particular appropriate shoes and had appropriate training and was certificated, the reality is another employee spoke about pressure from other workers not to use safety gear. This victim was 22 years of age and there needs to be some sense of reality about the extent to which an employer can expect young employees entrusted with responsibilities to appreciate human mortality in the same way that an older and wiser head might. 
[16]
It is submitted it is important that I should have regard to the terrain, if I can put it that way, over which the victim fell. He fell, firstly, a distance of probably about two metres and then the remaining two and a half metres. There is no real contest with that. It perhaps, however, highlights that appalling consequences can occur in a fall even where the fall is broken and the final fall is over a relatively short distance. 
[17]
It is submitted the victim himself elected to proceed before and while it was raining and that there was no pressure to do so from the defendant. Effectively I understand the submission to mean that there was no pressure from his employer to do that. That may well be right. However, again I refer to the fact that the victim was 22 years of age. 
[18]
The overall submission for the defence is that this was medium range culpability but towards the lower end of that category. Correctly, Mr Hammond submits I must have regard to the very early guilty plea, the absence of any previous convictions, and the remorse expressed by the company and those responsible for it. The company was fully co-operative with the investigators. The company and workmates have been deeply distressed by what happened and Mr Makuch, on behalf of the company, has not been reluctant to front up, to go and visit the victim, and to offer some practical support, providing a cellphone and so forth during an intervening period. 
[19]
The company fully accepts that reparation must be paid and intends to do so. It is a one man company. Last year it sustained a true profit of $120,000.00 after paying the principal company officer's salary. It has spent $100,000.00 on equipment, principally aimed at the safety of its employees. I accept that there will be some spin-off in terms of efficiency but nevertheless that is a real and significant step to take. 
[20]
In addition, I have carefully read the material supplied by Mr Hammond indicating the very serious response by the company to the need to address its responsibilities in risk assessment and identification, and directions to its employees. So it can truly be said that this company has responded promptly and appropriately to what has occurred. 
[21]
Mr Hammond submits the outcome of sentencing in totality should be a payment of between $5,000.00 and $8,000.00 by the company and it is his proposal that that be split one third/two thirds with the greater amount payable by way of reparation. It will be obvious then that the position of the two parties is significantly far apart. 
[22]
In identifying the aggravating factors, I accept to the extent that I have specified the submissions of the prosecution. General deterrence is a matter to be emphasised in sentencing. Specific deterrence, likewise, must be recognised and this offending must be seen in the context that this was an employee carrying out a core business activity. 
[23]
I do consider that it is difficult to weigh up the extent to which there was any contribution on the part of the victim but the Act makes it plain little weight can attach to that. The reality is that the victim was young. The company ought to have known if it did not know of the (for want of a better description) male bravado culture which was present. The workplace culture must be known to an employer and must be taken into account, if a principal is not going to personally undertake all of an employer's responsibilities. So in weighing up the responsibilities entrusted to the victim, it is incumbent upon the employer to take into account the reality that young men tend to think they are indestructible. 
[24]
Weighing all of that in balance, I consider that I can take some guidance, broadly, from the cases which have been provided by the prosecution. However, I consider that the stance adopted overall by the prosecution suggesting a fine of $15,000.00 and reparation of $25,000.00 is not realistic. 
[25]
I consider that the approach undertaken in the Dunedin Roofing Systems case and in the First Light case is of some assistance, but I have been asked to consider approaching this by fixing a fine, with approximately twice the amount of the fine then being payable by way of reparation. 
[26]
Putting aside the issue of reparation, which is always going to be confined to the particular facts of the case and the victim, it seems to me a fine in the region of $6,000.00 with reparation of $12,000.00 is the appropriate way to respond. I have had regard to the totality of what the company will have to pay. With a principled approach towards sentencing, I note a fine of $6,000.00 is effectively approved in the two decisions to which I have been referred. I consider it is within the range of the company's means to make a payment by way of reparation for emotional harm in the sum of $12,000.00. 
[27]
Accordingly, the company is convicted and fined $6,000.00, ordered to pay Court costs of $130.00 and solicitor's fee of $250.00. In addition it is ordered to pay reparation to the named victim in the sum of $12,000.00, to be paid in full within one month of today. I confirm that I have had regard to the amount in the totality in fixing the fine. 

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