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Safeguard OSH Solutions - Thomson Reuters

Safeguard OSH Solutions - Thomson Reuters



OSH Tracker

Department of Labour v Double J Smallwoods (DC, 30/08/06)

OSH Tracker

Defendant:
Double J Smallwoods Ltd
A forklift accident, described by a district court judge as an unspeakable tragedy, has seen a $50,000 penalty imposed on a small Gisborne timber yard. 
Double J Smallwoods Ltd was fined $10,000 under s6 of the HSE Act, and ordered to pay a total of $40,000 in reparations to the dead man’s parents and three-year-old daughter ( Gisborne DC, August 30, 2006). 
Sentencing the company, described as a husband and wife enterprise, Judge Stan Thorburn said the dead man was a keen, well-liked employee, who died when the 2.5 tonne forklift he was using to lift a pallet of timber overturned and crushed him. The forklift was the smallest one in the yard, and the pallet was unusually large and heavy, partly because the timber had absorbed moisture while stored outside. 
The judge noted that the company had lodged an early guilty plea, acknowledging its failure to display a load-limit certificate on the forklift, or to ensure it was not used for tasks beyond its capacity.  While he acknowledged that the company would suffer as a result of the penalty, it was, he said, in the lower range of penalties when compared to other similar HSE Act prosecutions. 
Industry:
Wholesale Trade
Sub-Industry:
Basic Material Wholesaling
Risk:
Vehicle - mobile plant (eg forklift, platform)
Harm:
Death
Penalty Amount:
$50000.00
Reparation Amount:
$40000.00
Appeared in Safeguard issue 103

Judgment Text

NOTES OF JUDGE S A THORBURN ON SENTENCING 
Judge S A Thorburn
[1]
This sentencing is in respect to a charge against a small private company, Double J Smallwoods Limited, a timber yard in Gisborne. It is charged under s 50(1)(a) of the Health and Safety in Employment Act 1992; that it failed, as an employer, to take all practical steps to ensure the safety of an employee, so that Ryan Arnold Stevenson was not exposed to hazards arising out of his use of a 2.5 tonne Lees forklift in his place of work. 
[2]
The company has attended court through its director, Mr Gardner. It is a husband and wife small private company. A plea of guilty was recorded on the 23 May 2006 and confirmed today, and that is of course on the basis that that can be taken through Mr Gardner who is authorised. The matter is unspeakably tragic because the employee, Ryan Stevenson, lost his life on the floor of the workplace of this little company. He was a young man. He has a toddler daughter, Daina, who might be aged now a little over three. She is living with her mother from whom the deceased was estranged. The deceased leaves a mother and a father with their grief, and a sister. 
[3]
This prosecution is one which is characteristic of the steps taken to enforce the standards of safety in the workplace under the Health and Safety in Employment Act 1992. The penalties and outcomes for offences against s 49 and 50 of that Act are very high: 
i)
$500,000 as a maximum monetary penalty in s 49, which requires proof of knowledge of shortcoming, and 
ii)
$250,000.00 in respect to offences against s 50, which is the section this company is prosecuted under, and which has the benefit of strict liability. 
These penalties, being as high as they are, are an indication of the importance that the community, through the legislature, has considered appropriate to ensure that employers are thoroughly responsible and required to be accountable to their duty of providing safety in the workplace. Also, as a result of this legislation, it is quite common for the courts to routinely impose fines on employers, in ranges well up into the tens of thousands, such that, as we speak the general experience of the court would be that fines or outcomes poised at the level of around $50,000.00 are becoming in the lower range. 
[4]
The facts require brief comment. This unfortunate young man was I think, (confirmed by what I have read through the expressions of Mr Gardner, the human face of the company) a well liked employee. He was keen and enthusiastic about his job, and had been sponsored for a training course at the Technical Institute in respect of Forklift Operating. 
[5]
There were three forklifts that were used in the yard, but the strongest or most capable for heavier weights as off being serviced. The forklift that the deceased drove on this occasion was the smallest one in the yard. The one in the middle was likely to have become available for the task that the deceased undertook very shortly after the accident but that is of little comfort of course. This other available forklift may have coped in the circumstances of the lift that took Mr Stevenson's life, had it been used a little later. 
[6]
The deceased took the 2.5 tonne forklift. It was not a multi-axle forklift as the bigger ones were. He went to shift a packet of timber which was higher than normal. Today I am advised that the weight of that packet might also have been more than usual because of moisture because the timber was stacked outside. Mr Stevenson obviously began to lift the timber off its stack. I can envisage in my mind the forklift elevated to I suppose, its highest extreme. It seems that Mr Stevenson's position of the forks underneath the packet might not have been right on centre. One can assume it was not, because what happened was, as he endeavoured to remove the packet from the top of the pile, the forklift capsized, falling to its right, and he was crushed as a result. 
[7]
It is a terrible incident. The ultimate loss of course, for Mr Stevenson's family, being beyond any remarks that the court can offer for comfort and also in terms of the shattering realisation of Mr Gardner, for the company, that such a dreadful thing has happened in the workplace of his small operation. 
[8]
Culpability has been addressed and I thank both Counsel for their very fine memoranda. It has been a pleasure to read the memoranda from both of them. Naturally of course, in an adversarial system, submissions are made from one side to emphasise matters, which are most likely to highlight the greatest weaknesses and the higher degree of culpability on the part of the company. For the company, submissions made by Mr McIntyre reflect another view that perhaps culpability is not as high. 
[9]
In the round with seven league boots, one comes to the end of Counsels submissions and observes to be expected disparity in what they each recommend as an appropriate outcome in totality. I take the opportunity to observe that in my view they are not that far away from each other, and in fact Mr McCarthy for the informant, indicated that as well. Both Counsel have helped by adopting a realistic and responsible stance in their roles of advocacy and that too is a reflection of the responsible stance taken in this matter both by the informant, and in particular might I say, too, Mr Gardner for the defendant company. 
[10]
So coming to culpability, there are two or three factors, which have given rise to the company choosing to accept responsibility and plead guilty; the company did so very early in the piece. 
i)
That the forklift ought to have had displayed a certificate or a plaque that advised anybody who was sitting in its operating seat to undertake a task, a load chart - what the capabilities of this machine were. That was not there. I think that perhaps this might be to my mind, the main feature of failure. 
ii)
The company had its innate responsibility to ensure beyond that too that steps would be taken to ensure that a person in Mr Stevenson's position did not undertake tasks which were going to be beyond the capability of the forklift. I wondered about the height, although Mr McIntyre suggests to me that normally the forklift would have coped with the operation it was undertaking. On this occasion, the particular packet was higher than usual, and then of course there is the suggestion of it weighing more than it normally would have, had it been dry. 
[11]
I am not going to say much more about culpability. It is acknowledged, it is serious. I do not think it is in the higher range. I would be more comfortable adopting a view, such as a determination might be necessary, in it being pretty fairly in the middle range. It is not minimal, or in the lower range. It is quite a serious aberration, but I would not be comfortable determining culpability in the higher or upper range. 
[12]
I want to talk now about sentencing principles and relevant matters of attitude. Denunciation and deterrence is necessary. It is agreed by the informant, in this particular case, specific deterrence is not really that important. I have no doubt that the company, through the human face of the Gardners, is an honest, diligent endeavour on the part of a family to make an honest buck, providing good employment for people, who can enjoy working for good employers, and gain some sense of self-worth about their own lives, working in an interesting environment in a timber yard. 
[13]
I have got some basic accounting information before me, through Counsel's submissions, and clearly this is a small company that is not printing money to lay down foundations of elaborate wealth for the Gardners. It will suffer as a result of any financial penalty such as I am bound to impose. In all of that, I am really saying, there is no question in this case about an attitude of indifference, a cavalier distancing from the human reality of the ultimate loss to the Stevenson family; or, as often happens, efforts to somehow or other tweak the facts around, so that, at the end of the day, the deceased might be claimed to really be the author of his own misfortune. None of that is here in this case. Therefore when it comes to denunciation and deterrence, I do not have a great deal of intent to focus my sentencing discretion on those concepts. This company and the Gardners are fully denunciated and deterred in this matter, and I do not think there needs to be any particularly punitive element to address that for their purposes. 
[14]
I am obligated to take into account the outcomes of a Restorative Justice process. I also am obligated to take into account offers to make amends, and that is innate in this case. It is a given. The defendant makes the offer to make amends. I am injuncted of course, to take into account remorse and previous good conduct and in this particular case, this little company has no history of other aberrations. 
[15]
It is a dreadful accident and nothing much more need be said than that. The company is taking responsibility for it. In respect to the Restorative Justice conference, s 8(j) requires me to take into account outcomes. This was an opportunity for the parents of the deceased and the Gardners to meet. These are mature people, and clearly it was an event, in which, at I suppose a level which parents can engage, these two people or families were able to connect. I have no doubt that genuine remorse and regret has been expressed with accompanying emotion on the part of both of them. How does that affect sentencing? Well, it is hard to know. But I do commend them both for the courage of such a meeting, and I think it does demonstrate that there is no real concern on the part of the informant, that there is any intrinsic lack of integrity on the part of this company and its operators. They are good people and this is one of life's tragedies. 
[16]
I have had the benefit of reading an array of cases from both Counsel, some well known, and some not so well known. I now conclude by coming to the suggested range of outcome. Perhaps at the top of the range the informant proffers a $75,000 totality outcome. I do not have any real difficulty with that. Sentencing is not an exacting science. It is not a matter of mathematical calculations, factoring things in a template. It is discretion. Perusing the cases that have been placed before me, I think it is quite open for the informant to extract that sort of range, the top being as suggested $75,000, and lower range, perhaps $55,000. 
[17]
Under the Sentencing Act, there is no power to order part or the entirety of fines imposed to victims. Financial outcomes under the Sentencing Act must be discreetly divided between fines and reparation. I am mindful of the … (tape changed/inaudible) it has been able to demonstrate a human face, which will have, through the restorative meeting, its own level of comfort, if that is the right word, for both of these families. The dignification of a communication of remorse has in human terms been conveyed. I am saying that because so very often what is before the court is an amorphous corporation which is an entity without any personal face. I think that is a matter that can be taken into account when reflecting the implications of financial penalty. There will be people who feel this, financially, in quite real terms; that is not to say of course, that the penalty ought not to be imposed at a level which is appropriate. 
[18]
I therefore convict the company of course, and I impose court costs of $130 to cover that matter. I impose a fine of $10,000 and I make two reparation orders: 
i)
The first reparation order is to Mr and Mrs Stevenson, the parents of the deceased in the sum of $7500. 
ii)
The second reparation order is in the sum of $32,500. So it will now be seen that the total I am imposing is $50,000. The $32,500 reparation order, I want to be payable to a trustee nominated for the little girl, Daina. 
[19]
My suggestion is that I should direct, that that payment be made to the Public Trustee, on a bare trust, on her behalf, to be payable to her at the age of 20 years. I invite Counsel to furnish me with a memorandum. I prefer this to be signed by both Counsel so that there is agreement reached about this, in order to enable me to make the appropriate directions. This would give peace of mind to the deceased family, and also to the informant, about the protection of, and administration of that sum of money, for the benefit of the little girl. And so I will finalise a reparation order, but will hold that in abeyance for 21 days, so that Counsel can give me a memorandum with a plan. On that basis, when I receive a memorandum, I will finalise the reparation order and the terms of it. 

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