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Safeguard OSH Solutions - Thomson Reuters

Safeguard OSH Solutions - Thomson Reuters



OSH Tracker

Queen v Straight Arrow Holdings Limited (DC, 23/05/05)

OSH Tracker

Defendant:
Straight Arrow Holdings Ltd
STRAIGHT ARROW HOLDINGS LTD was fined $7500 under s25(3)(a) of the HSE Act, $2000 under s6, and ordered to pay $2500 in reparations after the engineer on one of its fishing vessels suffered smoke inhalation while extinguishing a galley fire. The injured man lost consciousness as a result of the incident, and remained unwell for several days, but the vessel did not return to port or seek medical assistance. The incident was never reported to Maritime New Zealand ( Wellington DC, May 23, 2005). 
Industry:
Agriculture, Forestry and Fishing
Sub-Industry:
Commercial Fishing
Risk:
Burns/explosion
Hazardous substance exposure
Harm:
Injury
Penalty Amount:
$12000.00
Reparation Amount:
$2500.00
Appeared in Safeguard issue 97

Judgment Text

NOTES OF JUDGE B DAVIDSON ON SENTENCING 
Judge B Davidson
[1]
The company appears for sentence on related charges of failing as an employer to take all practicable steps to ensure worker safety and failing to provide notice of a serious harm incident within the requisite period. 
[2]
The company operates fishing vessels.. On 30 October 2003 there was a galley fire on one of its vessels which at the time was fishing off the North Island's west coast. The vessel's engineer during the course of dealing with the fire was overcome by fumes. He showed immediate and quite serious side effects from the smoke inhalation. These side effects included convulsing, coughing, heavy breathing. Oxygen was not able to be supplied to him immediately. The engineer lost consciousness. When he regained consciousness he was unable to talk properly, he was disorientated, he had to communicate with fellow crew by written notes. 
[3]
The ship's master did not immediately radio for medical advice expressing some concern about the amount of paperwork or red tape that might be associated with a formal reporting of the matter. The following day the master asked a land-based representative of the company for advice but decided not to contact an emergency medical service which is operated for maritime users It appears the master was concerned that the boat might be either ordered to shore or ordered to approach the shore more closely so that helicopter evacuation might take place. 
[4]
The land-based member of the company did not advise the Maritime Safety Authority of the incident but made informal enquiries with a medical centre in Wellington. 
[5]
This state of affairs effectively persisted until 6 November 2003 when the vessel docked in Nelson. It appears from the information that I have read that the boat returned to Nelson as a result of problems concerning its water supply. 
[6]
Over this period from 30 October until 6 November there is evidence which suggest to me that the ship's master and the land-based operating company paid a degree of lip service to the engineer's medical condition. 
[7]
The vessel was docked in Nelson for three days until 9 November. During this time the engineer did not take medical advice for reasons which are unclear. The boat eventually arrived in Wellington a few days later. The engineer saw a doctor on 13 November 2003 some two weeks after the incident had taken place The company never reported the incident as it was required to do so. 
[8]
The essence of the charges against the company is that it failed to take obvious and practicable steps to ensure its employee safety either including, returning to port, returning to a close evacuation point for helicopter evacuation, failing to call a maritime emergency service available to seafarers and failing to have a proper emergency protocol in place. There is a suggestion, not accepted by the company and which I will return to shortly, that convenience and economic consequences were placed ahead of the employee's safety and well-being. 
[9]
The company has no previous similar convictions and indeed, on the material I have seen has an unblemished health and safety record. There is no victim impact material before the Court. The employee has declined to provide a victim impact statement. I am told that the employee has made a full recovery.. There is confirmation of that because upon taking medical advice no specific treatment was provided by the doctor. 
[10]
The aggravating features of the company's offending are self-evident. Whatever way one looks at the matter, the company has adopted a rather cavalier, if not reckless attitude towards the health and safety of one of its employees. The information to my mind suggests that there was little regard to any possible deterioration or worsening In the employee's condition. It also needs to be borne in mind and it is also an aggravating feature that this was ongoing and sustained over a period of days until the boat eventually returned to shore 
[11]
It was also suggested on behalf of the informant that the company's attitude was rather cynical towards this particular employee there having been a wage or contract payment dispute upon his disengagement from service. I do not need to make any findings about that but it does seem to me that the ongoing ignoring of his health and safety needs is an aggravating feature of some consequence. 
[12]
By way of mitigation I take into account the company's plea of guilty. I take into account its prior good safety record and its co-operation with the investigation. It is also a mitigating feature to some extent that these events only occurred some six months after a significant five-fold increase in the maximum penalty. It could be said that at that stage, that is in October - November 2003, the message of the increased penalties perhaps had not filtered down to employers. 
[13]
Mr Gartrell submits that I should regard the offending in a less grave way than might appear at first sight. He says that in fact there were two qualified first aiders on the boat and that both were in a position to make reasonable medical judgements about the employee's condition. The boat was a significant distance from New Zealand and any emergency evacuation would in fact not be able to be undertaken for at least 15 hours. In that way the two qualified first aiders were in a difficult situation where they had to rely on their own judgement, trust it and act accordingly He stresses the company's excellent safety record and places material before me confirming that other vessels operated by the company have assisted in other maritime difficulties thus showing that the company is prepared to put maritime safety ahead of economic gain. 
[14]
The starting point must be to assess the degree of culpability of the employer's actions. I would assess the degree of culpability as being in the moderate range. I accept that there were qualified first aiders on board who made responsible judgements initially. However, the failure to report the incident and take professional advice and act upon it places the case as one in the mid range of culpability. The boat was at sea for a number of days during which steps could have been taken There must always have been the inherent risk that the employee's health could deteriorate swiftly and seriously. Luckily that did not happen and the employee has suffered no long-term consequences whatsoever. 
[15]
The company however failed to take obvious practical steps to ensure the employee safety and well-being. There must have been an ever present risk that there could have been a significant and quite rapid deterioration. To my mind, the company's degree of culpability falls in the mid range and I sentence the company on that basis. 
[16]
The aggravating features do not warrant any upward adjustment of that degree of culpability. My assessment of the company's degree of culpability reflects the aggravating features that have been argued for on behalf of the informant 
[17]
By way of mitigation I take into account the company's plea of guilty, I take into account the difficult situation faced by the crew when the incident initially happened. I take into account that the employee has suffered no long-term effects, that the company co-operated with the investigation and that this occurred only some months after the significant five-fold increase in maximum penalties for this kind of offending. 
[18]
To my mind a fine in the mid-range coupled with reparation for the emotional consequences for the employee is appropriate. Both charges carry a maximum penalty by way of fine of $250, 000. To my mind the more serious charge and the one that should carry the greater penalty is the charge of failing to provide notice of the incident because the provision of notice of the incident would be what would have lead to alternative treatment for the employee 
[19]
On that charge (CRN 0861) the company will be convicted. There will be a fine of $7,500, costs $130, solicitor's fees $200 and there will be emotional harm reparation of $2,500 in full within 28 days. On the other charge (CRN 0964), of failing to take practicable steps to ensure the employee safety the company will be convicted. There will be a fine of $2,000, no costs but solicitor's fees of $200. 

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