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OSH Tracker

Department of Labour v Manawatu Waste Ltd (DC, 06/12/06)

OSH Tracker

Defendant:
Manawatu Waste Ltd
A waste disposal company’s reliance on verbal instructions rather than mechanical interlocks to protect its employees from a machinery hazard has earned it a $40,000 penalty. 
Manawatu Waste Ltd was fined $10,000 under s6 of the HSE Act and ordered to pay $30,000 in reparations to an employee who lost both legs and his left forearm after he climbed into an industrial mulcher to clear a blockage (New Plymouth DC, December 6). 
On February 22 2006 the man was inside the hopper, attempting to move a tree stump that had become stuck, when his right boot became caught in the cutting disks and pulled into the machine. Bystanders heard his calls for help, but by the time they had reached the control cab and turned off the machine, both legs had been shredded to knee level and his left hand had also been trapped in the disks. Emergency services had to amputate his limbs to free him from the machine. 
The company had strict rules for operating the shredding machine and regularly reinforced the message that operators must isolate the equipment before attending to jams. The hopper above the shredding disks was unguarded, however and, with blockages occurring several times an hour, the injured man had made a practice of climbing into the hopper while the cutters were in operation and using his feet to reposition the garden waste that was causing the jams. 
Sentencing the company, Judge Louis Bidois said it would have been practicable to have installed an interlocked gate between the operator’s cab and the shredder hopper, while the use of a single key to both activate the shredder and open the gate would have ensured that the machine could not be operated while anyone was inside the hopper. 
Industry:
Personal and Other Services
Sub-Industry:
Other Services
Risk:
Machinery (trapped, crushed, cuts)
Harm:
Injury
Penalty Amount:
$40000.00
Reparation Amount:
$30000.00
Appeared in Safeguard issue 103

Judgment Text

NOTES OF JUDGE L M BIDOIS ON SENTENCING 
Judge L M Bidois
[1]
Manawatu Waste Ltd has pleaded guilty to a charge under s 50(1)(a) of the Health and Safety in Employment Act 1992 to a charge of being an employer failed to take all practicable steps to ensure the safety of its employee in that it failed to ensure that the employee was not exposed to hazards arising out of the operation of a shredder. 
[2]
The summary in respect of this matter indicates that the defendant carries on a waste disposal business. The defendant operates a refuse transfer station here in New Plymouth. There are nine permanent employees who work at the site and casual employees are employed from time to time. The defendant employed the victim. On 22nd February the victim suffered serious harm when he became trapped in the moving parts of the shredder. 
[3]
The purpose of the shredder is to mulch green waste. The operator sits in a cab. From there they operate a hydraulic grapple which is used to pick up green waste and place it inside the hopper of the shredder. Inside this hopper is a ram which pushes the green waste towards the cutting discs of the shredder, located at the other end of the hopper. The material is then drawn through the cutting discs, which breaks up the material before it falls to the ground outside the hopper. The cutting discs and the ram of the shredder are activated by a key in the operator's cab. 
[4]
The defendant has operated written “Always” and “Never” safety operation rules that say “Always stop and isolate equipment before clearing a blockage”. There were a number of methods which could be used for the removal of a blockage from the cutting discs. If specific methods were unsuccessful in unjamming the cutting discs, then the operator would have to get into the hopper to remove the object. Staff were told at a meeting on 10 October 2001 that before they got into the shredder they should turn it off and remove the key. A meeting was held on 27 May 2004 that records that a reminder was given “to make sure that mulcher is turned off before attending any jam”
[5]
The victim was trained to operate the shredder in about February 2005. The victim thought that the only way to unblock a jam was to get into the hopper while the cutting discs were going and try and move the-object with his feet by pushing it, standing on it or even jumping on it. The victim had previously been told by an employee of the defendant company not to get into the hopper of the shredder while cutting discs were operating. 
[6]
In respect of the specific accident, on 22nd February at approximately 11.30 a truck driver observed the victim in the hopper standing on green waste. He noticed that the cutting discs of the shredder were operating. At about quarter past 12 the cutting discs of the shredder again jammed. The victim got out of the operator's cab, climbed into the hopper of the shredder. At this time both the cutting discs and the ram of the shredder were operating. The victim attempted to push a tree stump, which was jamming the cutting discs, through the cutting discs with his right foot. While attempting to push the stump through, the cutting discs on the right of the stump grabbed the victim's right boot and began dragging his leg into the cutting discs. The victim called out for help. Members of the public and employees heard the calls. The emergency stop button was activated. By the time the emergency stop button had been activated, the victim's left leg was caught in the cutting disc up to his knee. His right leg was amputated below the knee and had been shredded to mid thigh and his left hand was also stuck in the cutting discs up to his wrist. Ultimately two of the victim's limbs were required to be detached in order to facilitate his removal from the shredder. 
[7]
The defendant failed to take all practicable steps to ensure that the victim was not exposed to hazards arising out of the operation of the shredder in his work place. The practicable steps that were available to the defendant were to ensure that the shredder was adequately guarded. In this case the hazards posed by the operation of the shredder's cutting discs were easily able to be accessed by the shredder operator. In this case it would have been practicable for the defendant to have installed an interlocked gate between the operator's cab and the hopper of the shredder, which used a “trapped key” system. This type of system employs a single key to energise the shredder and to unlock the gate, which is the only means by which the shredder's hopper can be accessed. In order for the operator to access the shredder's hopper he would have to physically remove the key from the shredder in order to use it to unlock the gate. The implementation of this form of control would ensure that when the operator accessed the hopper via the gate, the cutting discs and ram were de-energised and therefore the hazard was isolated. 
[8]
Relevant sentencing principles and purposes I have to have regard to include holding the defendant accountable for its offending, promoting a sense of responsibility in it, there is a need for deterrence and denunciation, in particular in relation to safety and health issues on work sites. There is a need to have regard to the effects the offending has had on the victim. I also have regard to the defendant's position. 
[9]
I have received comprehensive submissions from Counsel both for the informant and from the defendant. I have heard from both Counsel this morning. 
[10]
Mr Hargreaves on behalf of the Department of Labour indicates that s 51A directs that the Court must apply the Sentencing Act 2002 and codifies the criteria identified in the case of Department of Labour v de Spa and Co Ltd [1994] 1 ERNZ 339Has Cases Citing which are not known to be negative[Green] 
[11]
Reparation may be ordered to the victim. In the case of Department of Labour v Areva T & D New Zealand Ltd (9 November 2005, HC Rotorua, CRI 2005043-042) the Court must initially fix the amount of reparation payable and secondly, consider whether any further penalty by way of fine should be imposed having regard to any reparation ordered. 
[12]
It is submitted that the conduct leading to this offence needs to be denounced publicly. Such denunciation could assist in reminding employers and in particular, owners and operators of hazardous machinery, of the need to ensure that such machinery is adequately guarded at all times. All too frequently accidents occur as a result of unguarded machinery. In de Spa the Court there said that employers should actively address their minds to potential hazards. 
[13]
The informant submits that the defendant's culpability is in the medium to high range for a number of reasons. These include, the defendant knew that its employees would need to access the hopper of the shredder from time to time to clear blockages. It is clear that on a number of times that in fact occurred. Knowing this, the defendant should have turned its mind to whether its instruction to turn the shredder off was adequate to control the significant hazard posed by the operating shredder blades. Had the defendant turned its mind to this question, it ought to have been apparent that its instructions to its employees were not sufficient. 
[14]
The need to guard the shredder was identified by the defendant's health and safety contracts manager in June 2004. It ought to have been obvious that serious injury or death could result if an employee contacted the operating shredder blades. It scarcely needs to be said that when body parts come into contact with moving machinery, then serious harm is an almost inevitable result. 
[15]
The Workbridge subsidy received by the defendant for the victim, it is the informant's submission that this is significant, that the defendant should have known about the subsidy and any incompetence that the victim may have suffered from and there may well have been extra need to advise the victim of instructions relating to the use and operation of hazardous machinery. 
[16]
The next matter is the means by which the shredder could have been adequately guarded were well known. Interlocked guarding is a common solution for isolating hazards posed by machinery of all shapes, sizes and types. Interlocked gates using a “trapped key” system is a common practice in isolating such dangers. 
[17]
In this case essentially the defendant did have operating procedures for the shredder, although these were not documented and as a result there were some differences in the procedures understood by employees and it submits that the victim suffered horrific and extremely serious injuries and was extremely fortunate not to have died as a result. 
[18]
Mr Hargreaves again refers me to Department of Labour v Areva where the Court said “ … negligence is not the focus of the Act. The emphasis is instead on safety. The primary s 5 purpose is to promote the prevention of harm in the work place.” The purpose of the Act is to ensure work place safety through the identification of hazards in the work place, followed by the elimination, isolation and minimisation of those hazards. Mr Hargreaves submits that the injuries sustained by the victim sits in the serious category and realistically, just short of death. As a result there has been a significant and life changing change to the victim's life. 
[19]
The informant recognises that $30,000 has been paid into a trust fund. The informant recognises that the defendant has pleaded guilty. 
[20]
Mr Hargreaves refers me to a number of decisions across the country, including cases from this area, in support of submissions that a substantial fine and/or reparation should be paid by the defendant. 
[21]
Mr Chisnall on behalf of the defendant has likewise provided written submissions and has made submissions to the Court orally. He has read a letter of apology from the defendant. He says that the defendant employs approximately a hundred staff. He sets out the history as to how the company came into being and its current operation. 
[22]
He acknowledges that in 2004 a specific health and safety engineering manager was employed. There have been reports provided. He refers me to a Loss Time Injury Frequency where there has been a significant decrease between 2002 and 2006. Manawatu Waste has been very dedicated to health and safety standards. A written Safety Management Programme is in operation. Regular on-site safety meetings have taken place, on top of informal meetings. The health and safety meeting minutes from 2004 indicate that there was a reminder to make sure the mulcher is turned off before attending to any jamming. Those notes were made available or read out at a following meeting at which the victim was in attendance. 
[23]
The defendant ran a competency tracking chart for performance on specific equipment, including the shredder. The victim was assessed as being competent in the use of that machine. There were written action items sent to New Plymouth from the head office from time to time. There is a detailed induction book that is provided to new employees setting out a large range of matters. There is emphasis on the fact that it is not worth getting hurt. The documentation also recorded that the defendant has the responsibility to provide and maintain a safe working environment and that employees are expected to act safely at all times and to ensure their own safety. There are a set of rules, “Always and Never”. These include - 
always stop and isolate equipment before clearing a blockage 
nothing we do is worth getting hurt 
never put your hands into moving equipment 
The frequency of blockages has been estimated consistently to be up to four times per hour when the shredder has been operating. The defendant believes that every employee knew and/or had been instructed that if the machine blocked, the machine was to be turned off. 
[24]
There was a report that suggested reconfiguration of the machine to provide further safety mechanisms. The cost of that may well have been up to around $10,000. The defendant recognises the fact that it had identified safety issues with the shredder is a double edge sword. On the one hand it shows that safety procedures were being actioned and steps were taken to assess hazards, but unfortunately there was no follow up and that, of course, has lead to the accident here. It is acknowledged by the defendant that a fenced or caged lockout device would have, at no extraordinary cost, significantly reduced or eliminated the risk. The defendant denies that any employee had ever been directed to hop into the shredder while it was operational. 
[25]
He refers to the conduct of employees. As soon as the accident had been discovered and the exemplary steps taken by some of the workers, the defendant has immediately shut down the operation of its shredder both here in New Plymouth and other sites. The shredder has in fact been dismantled. 
[26]
The defendant submits that its culpability is towards the medium range of offending. It accepts that it knew that employees would have to access a “turned off” shredder from time to time to clear blockages. Mr Mullinger's report highlights that hazards with the shredder were identified, however the isolation of access to the shredder was not. Notwithstanding this, the defendant accepts that further enquiry and attendance to the shredder, in the circumstances, should have led to elimination by way of adequate guarding. 
[27]
It is submitted that it is significant in this case that an independent contractor was instructed to commission the shredder and should have taken into account safety issues. The shredder had been in operation without incident for a period of five years. The “buddy” system was effective to the extent that all employees knew or would have been told never to hop into the hopper without turning the shredder off. There were the rules that it had. There is the nature of the shredder itself. The defendant has paid $30,000 into a trust fund for the victim. The defendant acknowledges the consequences are serious and may well have been fatal. It apologises for its conduct and is remorseful for its actions. It acknowledges that there has been significant harm to the life of both the victim and his family. It wanted to engage in restorative justice prior to sentencing today and are prepared to do so in the future. It has pleaded guilty. It is a first offender. Its remorse is sincere. Likewise, Mr Chisnall refers me to a number of decisions from across the country and also from Taranaki. 
[28]
The primary aggravating feature that I see is the effects that the offending has had on the victim. There are two victim impact statements and an updated statement before me. The victim and family are obviously in Court today. The victim sustained multiple traumatic amputations of both his legs above the knee and his left arm below the elbow required extensive surgery. He spent a total of three months in hospital. 
[29]
Six months on, the victim now faces extensive lifetime rehabilitation plans. The financial cost of the accident has been extensive. He has been receiving ACC together with a top up from the defendant. He will be unable to continue in full time manual work. He is motivated to find work in the future. A trust fund has been set up. The victim was a very active person. He enjoyed playing sport. The accident has resulted in devastation to both him and his family. While in hospital the immense horror of what happened and the realisation he could have lost his life had a significant emotional toll on both the victim and family and friends. Coming home in a wheelchair was a hugely emotional period when it all hit him. The victim feels frustrated about how dependent he is now on other people. He has experienced a loss of dignity. His self esteem has dropped with the loss of his job and his independence. 
[30]
The victim's relationship with his wife is strong. Although there are now different stresses, the victim's wife has remained supportive throughout this ordeal, although there has been immense change in her life as well. It is recognised that it is a credit to both of them that they have received support from family, friends, social and medical professionals that have made the best endeavours to make the victim's life as best as it could. In an update he indicates he continues to need help from caregivers. The prognosis of walking again in the future is limited. He is described as being a patient man, but has been caused increasing frustration by delays relating to assistance, rehabilitation and the Court process. It is recognised that the victim's life has been irrevocably changed, but he is adapting as best as he can with the strength of his family. That is obvious to everyone who knows the victim and, of course, that is recognised by the defendant. 
[31]
There are the following mitigating factors. There is firstly the immediate plea of guilty. The defendant gets full credit for accepting responsibility for this offending. 
[32]
In the victim impact statements there has been an indication by the victim as to some frustration with the process in terms of delay. I can tell the victim that there has been no delay in this matter being resolved in terms of what we usually see. The Court has always been advised of the defendant's position. There is the power to administratively adjourn cases. That was exercised in this case because there needed to be a lot of material disclosed, a lot of enquiry made, extensive submissions to be provided by both the informant and the defendant. What I can say in this case is, those adjournments have been made timely. It has saved the victim and others coming to Court for either no appearance or for a two minute appearance, which can be very frustrating and soul destroying. 
[33]
There is genuine remorse shown by the defendant and in fact five senior members of the company are present today. They take this matter seriously. There is a letter of apology that has been read to the Court and is to be tendered to the victim. It says that the defendant offers its sincere and profound apology to the victim and his family. It recognises the seriousness of the injuries and regrets what has occurred. There is the fact that the company is a first offender. There has been a significant contribution of $30,000 to a trust fund. There is the co-operation in terms of the investigation into the accident. That is recognised by the informant. 
[34]
There was a request for a restorative justice meeting to take place. There has been in the victim impact statements reference to frustration by the victim as to the lack of communication or personal approaches by company representatives or fellow employees. I can understand how the victim feels about what he perceives as being a lack of contact. From what I am told and I accept that there were endeavours made by the company and employees to visit the hospital and to have ongoing contact with the victim. A restorative justice meeting would have, in my view, been a significant part of the healing process in this case. There is sometimes a perception that restorative justice meetings are an opportunity for a defendant to get a lesser sentence. That is not true. A restorative justice meeting is an opportunity for defendants to meet with victims of offending, irrespective of whether it is an employer/employee situation, to express apology, remorse, disgust, the predicament for each of the parties and for the victim to express how their life has been changed as a result of the offending. It seems to me, and I don't put the blame on anyone, that offer was made — sometimes these things need to be done at a time when people are emotionally up to such meetings and I just put it down to unfortunate miscommunication in this case. There is an intention by the company, if it is able to do so, to meet with the victim. Likewise, in the updated statement the victim is keen in the future, when he is in a position to do so, to meet with the company and I certainly encourage that to take place, even if on an informal basis. 
[35]
I have to assess the overall seriousness of this charge and what occurred. The company had expressed and it had told workers not to hop into the hopper while the shredder was operating. Time and time again workers did. The nature of employees across the country to do their best, sometimes they place themselves at risk. In this case a lock out gate or a trigger under a seat, for example, where if the operator hopped up, that would automatically turn off the shredder, would have avoided this catastrophe. What occurred has to be described as devastating to all involved. It is hard to believe that what occurred to the victim, that he in fact lived. That, in my view, reflects his mental toughness and strength, the quick action of those who were at the site and no doubt the skill of medical staff who attended at the scene subsequently. The victim now has to fight to recover the best quality of life that he can in the future. He has shown great determination to date. That, no doubt, reflects his will to live, his love for his family and the support of both his family and friends. 
[36]
The focus in this case must be on fault and reparation. In my view, I make a finding that the degree of culpability was in the medium to high range. In this case the defendant knew about the need to install an interlock gate or protect employees from the hazards of the shredder. It had commissioned its own report which identified it as a problem, but the defendant had not, for one reason or another, got around to actioning that report. In my view, the danger was obvious having regard to the nature of the shredder. There are photos of it and quite clearly it is a mean machine. There is the knowledge that employees did get into the hopper from time to time. That was known to the company, albeit employees were told not to do so. 
[37]
That needs to be balanced by the steps taken to address safety and health issues by the company, the increase in money spent in respect of those matters, the report that it commissioned through the health and safety engineering manager, the fact the employees were told never to hop into the hopper when the shredder was working, the “Always and Never” notices, the “buddy” system, the competency assessments that were carried out from time to time and in some respects, human error. 
[38]
In respect of this matter the penalties imposed by Courts never reflect what the victims can see as being fair. The victims of an aggravated robbery or grievous bodily harm would usually expect offenders to receive maximum penalties of imprisonment. Penalties are imposed to reflect a wide range of matters, including sentencing principles and purposes. No amount of money will ever compensate the victim for the harm that he has suffered. I have to fix an amount to reflect the seriousness of the harm caused to the victim, the case law that has been provided, cases that are relevant from this particular area and again recognising the principles and purposes identified firstly in de Spa and now codified under the Sentencing Act. 
[39]
The Court also needs to recognise that there has been a substantial payment into a trust fund. If the Court failed to take into account those payments, that would discourage employers in the future from doing so. Those payments were made on a “without prejudice” basis, obviously. The first payment may well have been made before charges had been preferred or before a plea of guilty had even been contemplated. 
[40]
There is in some respects a degree of human error. The victim should never have hopped into the hopper without turning the shredder off. 
[41]
In respect of this matter I convict and fine the company $10,000 plus costs. 
[42]
There is an emotional harm reparation order of $30,000. 
[43]
Solicitors costs are not sought. 
[44]
Thank you. 

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