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Safeguard OSH Solutions - Thomson Reuters

Safeguard OSH Solutions - Thomson Reuters



OSH Tracker

Department of Labour v Tachikawa Forest Products Ltd (DC, 25/05/06)

OSH Tracker

Defendant:
Tachikawa Forest Products
A sawmill worker who developed post traumatic stress disorder after his head was 
trapped by a pneumatic flap in a horizontal band saw has been awarded reparations of $10,000 for emotional harm. 
His employer, Tachikawa Forest Products Ltd, was also fined $17,500 under s6 of the HSE Act for failing to ensure that the flap could not be lowered while workers were clearing jams from the saw ( Rotorua DC, May 25). 
The incident occurred in September 2005, when the worker noticed a jam beneath the separator flap. He put the saw into neutral and placed hold cards on two of its four control panels, but kept the pneumatics on so the flap would remain raised. 
While he was clearing the machine, the air ram released and the flap dropped, trapping his head and fracturing his eye socket, cheek bone, jaw and a rib. 
The victim recovered well from his injuries, but suffered recurring nightmares, depression, mood swings, and feelings of anger and frustration. At the time of the court hearing he had begun psychological therapy for post traumatic stress disorder but had not yet been able to return to work. 
Industry:
Manufacturing
Sub-Industry:
Wood and Paper Product Manufacturing
Risk:
Machinery (trapped, crushed, cuts)
Harm:
Injury
Penalty Amount:
$27500.00
Reparation Amount:
$10000.00
Appeared in Safeguard issue 100

Judgment Text

JUDGMENT OF JUDGE B J KENDALL 
Judge B J Kendall
[1]
The defendant has pleaded guilty to one charge brought under sections 6 and 501)(a) of the Health and Safety in Employment Act 1992 and is now to be sentenced. Section 6 of the Act places a duty on an employer to take all practicable steps to ensure the safety of employees while at work. 
[2]
The charge arises in respect of the Defendant's obligations to its employee, Anania Reihana Te Aonui. The defendant owns and operates a sawmill from premises located at Vaughan Rd Rotorua. On the 23 September 2005 Mr Te Aonui suffered fractures to the right side of his face, eye orbit, cheekbone, jaw and left rib when he became trapped between a mechanical separator flap and the return deck chain runner on the defendant's No 1 Horizontal Band saw which was set up in Mill 2. 
[3]
On the day of the accident, Mr Te Aonui noticed a flashing indicator signalling that there was a fault. He noticed that there was a jam up caused by wood in an area below the mechanical separator flap which was kept in a raised position by the pneumatics of the machine. It was important to keep that flap raised so that Mr Te Aonui could go underneath the flap onto the waste belt and clear the jam. He used different buttons on different controls to turn the machine into neutral. The pneumatics remained on to ensure that the flap would remain in the raised position. 
[4]
Mr Te Aonui placed hold cards on two of the control panels and proceeded down into the machine to clear the jam. While there he heard the “air ram go off”. That indicated to him that air to the pneumatic rams had been released and that the flap was activated. The flap descended towards him forcing him down trapping his head. He managed to pull his head free, fell to his hands and knees and climbed out of the waste chute. He was fortunate to escape with his life. 
[5]
There is no explanation why the pneumatics were activated and why the mechanical separator flap dropped as it did. There was no apparent mechanical failure. Both the informant and defendant consider it likely that another person hit the stop button on one of the control panels releasing the air to the pneumatic rams and causing the flap to drop. 
[6]
Pursuant to Section 6, the Informant asserts that the defendant should have ensured that, while the machine was in neutral during an unjamming process, all energy sources were isolated, or physically locked out. It should have ensured that no one should work under a suspended load without that load being supported. 
[7]
The Informant maintains that the defendant company should have taken the following practicable steps: 
[a]
Identify the hazard of its employees working under a suspended load in the event the machine jams or is otherwise faulty. 
[b]
Develop and implement a procedure for clearing jams that included: 
[i]
Pin, prop or install an automatic device that supports the separator flap to ensure that the flap does not drop. 
[ii]
Isolate all energy sources. 
[iii]
Physically lockout all energy sources so that they can not be activated during lockout. Where pneumatic energy must be maintained to the separator flap, then it is imperative that (i) is in place. 
[8]
Mr Te Aonui completed a victim impact statement in November 2005 some 6 weeks after the accident. He reported constant nightmares of being pinned in the machines. He said that he was afraid to go back into his work environment. He said that there was frustration in his household because medication made him sleep a lot and he was not totally independent. 
[9]
He completed a further victim impact statement on 21 April 2006. He reported heavy emotional strain on himself and his family and described feeling angry, frustrated and depressed. There is reference to friction between him and his family as a result. He is reported to have physically recovered and to be physically healthy. 
[10]
In respect of emotional harm he reports that his nightmares are starting to fade and he is medicated with an anti-depressant. There is reference to mood swings, which he can't explain to his family. He has been diagnosed by an ACC consultant psychiatrist to have symptoms of Post Traumatic Stress Disorder as a result of which he has had sessions of individual Psychological Therapy to which he has responded well according to the report of Ora Ryan, Registered Psychologist. The psychologist reported that resolution of employment issues and a return to work would prove of considerable benefit to his rehabilitation. 
[11]
Mr Te Aonui attended the hearing. I discussed victim issues with him in Court. He appears to have made a remarkable physical recovery and communicated in a relaxed manner. He did not have significant residual scarring from his ordeal. He talked about the benefit of the therapy he has been receiving. 
[12]
The defendant is liable to a fine not exceeding $250,000.00 on the charge. That is five times the previous maximum penalty under S 50. The increase was enacted in May 2003. 
[13]
Section 51A of the Act sets out sentencing criteria as follows: 
“1)
This section applies when the Court is determining how to sentence or otherwise deal with a person convicted of an offence under this Act. 
2)
The Court must apply the Sentencing Act 2002 and must have particular regard to 
(a)
sections 7 to 10 of that Act; and 
(b)
the requirements of sections 35 and 40 of that Act relating to the financial capacity of the person to pay any fine or sentence of reparation imposed; and 
(c)
the degree of harm, if any, that has occurred; and 
(d)
the safety record of the person (which includes but is not limited to warnings and notices referred to in section 56C) to the extent that it shows whether any aggravating factor is absent; and 
(e)
whether the person has 
(i)
pleaded guilty 
(ii)
shown remorse for the offence and any harm caused by the offence 
(iii)
co-operated with the authorities in relation to the investigation and prosecution of the offence: 
(iv)
taken remedial action to prevent circumstances of the kind that led to the commission of the offence occurring in the future. 
(3)
This section does not limit the Sentencing Act 2002.] ”
[14]
The Court is obliged to apply the provisions of Ss 7-10 of the Sentencing Act 2002 and as well to consider reparation under S 12 of the Sentencing Act 2002. Having regard to the provisions of Sec 32 of the Health and Safety in Employment Act, emotional harm is the only aspect which is properly compensable. (Transmission Equipment. V Dept of Labour HC, Rotorua [7 March 2006]
[15]
I adopt the approach of considering a reparation sentence first and then to move on to a fine (Transmission Equipment, para 14). 
[16]
In this case the emotional harm relates to the experience of the accident. The most serious aspect of that has been nightmares and aspects of Post Traumatic Stress Disorder. Mr Te Aonui has had to take anti depressant medication and undergo Therapeutic Counselling. He is not diagnosed to be likely to suffer long term emotional harm. Nevertheless, when I have regard to the seriousness of the accident and near avoidance of death, I consider that emotional harm was intense in the initial stages of the accident 
[17]
In Transmission Equipment, Priestley J awarded reparation of $15,000.00 to a young victim whose arm was fractured in 4 places and was badly injured. He suffered emotional harm from sleepless nights, pain, loss of strength and scarring. He had regard to a reparation order in Department of Labour v Richmond Ltd, where $27,000.00 was awarded for sever crushing of the hand. A hand amputation brought a reparation order of $12,000 in a sawmilling accident in Department of Labour v Whittaker Sawmilling Ltd
[18]
In fixing reparation I have regard to the actions of the defendant in funding immediate counselling for Mr Te Aonui and initiating a return to work rehabilitation programme albeit without success. Doing the best that I can I fix reparation in the sum of $10,000.00. 
[19]
I now consider the imposition of a fine. 
[20]
The clear purpose of the Act is to promote and enforce workplace safety. It follows that in rare cases only would there be no imposition of a fine. Both Counsel have not submitted there should be no fine. I adopt the remarks of Priestley J in Dept of Labour v Areva T & D New Zealand (HC Rotorua [9/11/05] where at para 40 he said that in successful prosecutions of this kind, the s 7 purposes of denunciation, deterrence, and promoting a sense of responsibility should be given significant weight 
[21]
In this case the matters which go to denunciation, deterrence and promotion of a sense of responsibility are: 
[a]
The high number of work place accidents that occur as a result of inadequately safe working conditions. 
[b]
That the defendant operated heavy and dangerous machinery requiring a high level of responsibility to ensure the safety of its workers. 
[c]
That the defendant did not have an adequate lockout system in place, which failure had been brought to its attention by OSH on a prior occasion. 
[22]
I do not consider that I need to mark particular deterrence against the defendant in this case as opposed to general deterrence. I do not find that the defendant was irresponsible in its approach to work place safety, nor cavalier in the discharge of its obligations. 
[23]
The matters that need to be taken into account under Section 8 of the Sentencing Act are: 
[a]
The gravity of the offending 
[b]
and the degree of culpability 
[c]
The seriousness of this particular offence in comparison with other types of offences 
[d]
The need to ensure that penalty is consistent with appropriate sentencing levels. 
[24]
Both Counsel for the informant and defendant acknowledge that the harm was clearly serious, but I take into account that the victim has had a fall physical recovery and there are indications that he was contemplating an early return to work. 
[25]
The informant submits that the Defendant's culpability is high and argues for a fine in the range of $20,000 - $30,000 because: 
[a]
The requirement to lockout hazardous machinery was a basic requirement of safety 
[b]
The moving parts of the Band saw were an obvious hazard 
[c]
This particular accident could have resulted in a fatality 
[d]
The accident was forseeable in that it is not uncommon for a Bandsaw to be cleared of debris, such that a robust system of lockout and isolation was necessary and obvious. 
[e]
The defendant had earlier identified the need to upgrade the hold card system to a full lockout procedure to avoid the risk of inadvertent activation of the machinery. 
[f]
The defendant did not have in place a support of a suspended load under which a worker was required to work. 
[26]
Counsel for the defendant submits that the culpability of the defendant is medium to low given: 
[a]
The victim was an extremely experienced operator. 
[b]
There had been previous clearings of the machine without incident. 
[c]
The use of hold cards on control panels to ensure pneumatics remained on, thus keeping the separator flaps in the raised position. 
[d]
The possibility of human error or foul play because no mechanical failure had been identified. 
[27]
Counsel for the defendant submits that a penalty inclusive of reparation would be in the vicinity of $20,000.00. 
[28]
In terms of Section 8 principles I find that the offence and degree of culpability fall in the medium to serious range. I fix a starting point of $25,000.00. I arrive at the sum having regard to the above factors and to a consideration of penalties in other cases to which I have been referred. 
[29]
I must then consider whether there are aggravating and mitigating factors in terms of Section 9 of the Sentencing Act and Section 51A(2)(d) and (e) of the Health and Safety in Employment Act 1992 
[30]
The defendant has one previous conviction under the Act. That occurred in 1996, when an employee of the defendant suffered when both hands were caught in the chain and sprocket of a conveyor. The machine had been isolated with a hold card on the control panel, but had been inadvertently activated by another worker. The fault bears similarities to the present offending. The informant submits that this conviction is an aggravating factor. The defendant employs over 250 staff in potentially dangerous occupations using heavy machinery and now has two convictions 10 years apart. I do not treat the conviction of 10 years ago as an aggravating factor in all of the circumstances. 
[31]
As to mitigating factors, there are the following: 
[a]
An early plea of guilty. 
[b]
The defendant company co-operated with OSH's investigation into the accident and 
[c]
took immediate remedial action to fit pin stops to prevent the separator flap coming down. As well it has undertaken a review of its lockout and isolation procedures. 
[32]
In Dept of Labour v Areva, Priestley J said at para 48 that appropriate discounts for mitigating factors need to be stipulated. He considered a discount of 30% - 35% to be appropriate in respect of a defendant's early guilty plea and cooperation. In the circumstances of that case he considered that the respondent's excellent record and the leniency factor justified “some extra softening of the penalty”
[33]
I treat those remarks as a guide. I consider in this case that an appropriate overall discount of 30% for the mitigating factors is appropriate. I fix that sum at $7,500.00 
[34]
The last matter that I must consider is the financial position of the defendant. Although the defendant company says there are difficult times this year in the timber and forestry industry and that it has suffered losses recently, I. do not find that the financial capacity of the defendant is such that it has insufficient means to pay a fine and reparation. 
[35]
Accordingly the penalty I impose on the defendant is; 
[a]
A fine of $17,500.00 
[b]
Reparation of $10,000.00 
[c]
Court costs $130.00 
[d]
Solicitors fee $250.00. 

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