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Safeguard OSH Solutions - Thomson Reuters

Safeguard OSH Solutions - Thomson Reuters



OSH Tracker

Department of Labour v SPM Ltd (DC, 13/02/06)

OSH Tracker

Defendant:
SPM
Two judges took differing views about the degree of culpability involved in a pair of fatal roof falls which occurred in different workplaces but remarkably similar circumstances. 
Both companies pleaded guilty to a charge under s6 after an employee carrying out roof-top maintenance was killed when he fell through a dust-covered skylight. The penalties imposed, however, did little to reflect the levels of blame apportioned, with the small local company that was regarded as being less culpable receiving a total penalty of $65,000 – exactly half that imposed on the large multi-national company that was seen as being more to blame. 
In the first case to come for sentencing, Judge JA McMeekan found that South Island Seed Dressing and Storage Company Ltd’s culpability for the August 2005 incident was “not at the high end of the scale” even though its managing director had identified the obscured skylights as a hazard before the job began but had done nothing about it. The company was fined $5000 and ordered to pay $60,000 in reparations to the family of the dead man ( Ashburton DC, February 13, 2006). A sister company with the same director, SPM Ltd, was fined $7500 on a second s6 charge relating to one of its employees who was also on the roof when the fatality occurred. 
Three days later Carter Holt Harvey Ltd was fined $30,000 and ordered to pay reparations of $100,000, with Judge JJ Weir agreeing with Department of Labour submissions that the fatality, in February 2005, had been foreseeable and the degree of culpability in the medium to high range (Tokoroa DC, February 17). No charge was laid in relation to a second employee who was on the roof at the time. 
Industry:
Wholesale Trade
Sub-Industry:
Basic Material Wholesaling
Risk:
Fall from height
Harm:
None
Penalty Amount:
$7500.00
Reparation Amount:
$0.00
Appeared in Safeguard issue 98

Judgment Text

NOTES OF JUDGE J A McMEEKEN ON SENTENCE 
Judge J A McMeeken
[1]
Arising out of the tragic death of Mr Campbell in August of last year, two related companies which operate from the same premises each face one charge under section 50(1) of the Heath and Safety in Employment Act 1992. 
[2]
In respect of South Island Seed Dressing and Storage Company Limited the charge is that they failed to take all practical steps to ensure the safety of their employee Mr Campbell while he was at work, and in respect of SPM Limited the charge is the same but relates to Mr Bland. 
[3]
Mr Campbell and Mr Bland were working together that day. 
[4]
The maximum penalty for such an offence, which was increased in 2003 from $50,000, is now $250,000 per offence. 
[5]
Mr Campbell was an employee of South Island Seeds and Mr Bland was an employee of SPM. Golden Stock Foods Limited of Ashburton contracted with SPM to have supplied and installed a dust extraction system. The managing director of that firm instructed Mr Bland to begin work and at a later time, when work was required on the roof, Mr Campbell was instructed by Mr Waddell, who was also the managing director of South Island Seeds, to assist and do the work and ultimately Mr Campbell was in charge. 
[6]
Whilst working on the roof installing ducting on 2 August Mr Campbell fell 6.5 metres through a skylight on the roof and died almost immediately from his injuries. 
[7]
These charges have been brought because there is an obligation for an employer to ensure that employees work in a safe environment. 
[8]
Sentencing in cases such as these is always difficult and although no representative of the Campbell family is here, the Court extends its sympathy to them. 
[9]
Mr Waddell, the managing director of both companies, is present in Court today and the Court acknowledges the difficulty that this matter has caused to him, in part because he was a personal friend of Mr Campbell's and because this is a case that does not involve any deliberate or extremely negligent behaviour on the part of Mr Waddell's companies. 
[10]
The sentencing exercise today is not at all about putting a value on a man's life. Much of what the Court has to do today in respect of penalty is set out in the Act itself and also in the Sentencing Act. 
[11]
The Health and Safety in Employment Act specifically says this Court must have regard to sections of the Sentencing Act. It must consider the purpose of the sentencing, issues of accountability, deterrence, denunciation and reparation are to be considered, and counsel for both parties acknowledge that the Court must be concerned with deterrence, in particular general deterrence, that is really giving a message to all employers who may find themselves in similar situations. 
[12]
The Act also states the Court must consider the degree of harm, the safety record of the company, the actions of the company, have they shown remorse, have they co-operated with the investigation, have they taken any remedial action and the Sentencing Act says the Court must take into account any measures made by the company by way of making amends. 
[13]
Both counsel have referred to decided cases but acknowledge that each case - turns on its own facts. 
[14]
I have read all of the material that has been provided prior to today by counsel. I have been aided, in particular, by the photographs of the roof and the building. I have read the victim impact statements prepared for Mrs Campbell and I have in reading the submissions read the cases that have been referred to. 
[15]
My view of matters is that Mr Campbell was an experienced employee held in high regard by his employer and I note that Mr Waddell had been involved with Mr Campbell for some years. He knew him well and he knew his abilities. Mr Campbell had been involved with Mr Waddell previously in working on a roof where there were skylights. 
[16]
Mr Campbell was specifically tasked to do this work because of his expertise. Mr Campbell took over from Mr Bland in charge of the work because of his expertise. 
[17]
Mr Campbell died when he fell through a skylight on the roof. A few days earlier Mr Waddell and Mr Campbell and Mr Bland met and discussed the need for care on the roof near the skylights. The hazard therefore was identified. 
[18]
The Department say that Mr Waddell, representing the company, never enquired as to how that hazard was to be controlled but left it up to Mr Campbell. The Department, in bringing the prosecution, say that enquiry should have been made. 
[19]
For the company Mr Gallaway acknowledges that the failure to communicate specifically to the employees, that is both to Mr Bland and to Mr Campbell, in respect of the steps that should have been taken is probably what lead to this prosecution. 
[20]
Mr Campbell was regarded, with good reason, as very safety conscious but he was not, it seems, specifically directed to do certain things in relation to safety procedures, rather he was trusted to do the right thing as he had in the past. 
[21]
Mr Gallaway submits that this is not a case of wilful disregard on behalf of the defendant companies for the safety of its employees. It is said in written submissions that rather it is a breakdown in communication about the role and responsibility of an employee and the defendant accepts that when the hazard was identified it should have been highlighted to the employees the necessary steps to alleviate the risk. I agree with that. The law places the ultimate obligation on the employee. 
[22]
In considering all of the matters that I am obliged to consider I note that South Island Seed has been in existence for about 15 years and is involved with heavy machinery and sometimes with work at a height. It has had no serious accidents other than this one and certainly has no previous convictions. Prior to this there was a health and safety manual and some months before this matter the company began up-dating its manual using professional assistance. That indicates an on-going concern to get safety matters right prior to this matter. 
[23]
Since the accident the policy has been revised and, in particular, a site inspection check list must now be completed before any work at a height is undertaken and that policy requires identification of hazards and importantly a note of safety measures that must be taken to minimise the risks that that hazard poses. 
[24]
SPM Limited has been in existence for six years with no serious accidents and no prior convictions. It is a closely related company and has undertaken the same up-dating work as South Island Seeds. 
[25]
In both companies, since August of last year, every employee has been inducted in respect of these new procedures. 
[26]
Since the accident Mr Waddell as a representative of the company South Island Seed Dressing, and the managing director, has visited Mrs Campbell regularly. The company made a payment of $10,000 to her very soon afterwards and before charges had been laid. They have offered other assistance. They accept that reparation should be paid and they continue to have contact with her. 
[27]
I accept that considerable remorse has been shown and that this has been displayed in a practical way. I accept that both companies have clearly co-operated with the investigating authorities, prompt guilty pleas were entered. 
[28]
In my view considering all of the matters that I must I do not consider that the companies culpability is at the high end but as in all cases like this the penalties imposed do need to reinforce the high standards that are required of companies involved in such work. The Court also must acknowledge the dramatic increase in penalties which came into law just a few years ago. 
[29]
When I consider all of those matters, and acknowledge the $10,000 already paid by South Island Seeds, I have determined that these two companies are two separate legal entities notwithstanding their very close connection. They were incorporated to be two distinct legal equities and today I will treat them as that. 
[30]
In assessing the penalty to be paid by South Island Seeds, taking all matters into account, I impose a total penalty of $65,000. The sum of $60,000 is to be paid to Mr Campbell's wife as reparation for the emotional harm that she has suffered and $5,000 is to be a fine. 
[31]
In deciding to impose only $5,000 by way of fine, I have reached that figure by, firstly, reaching a decision that an appropriate penalty is $65,000 and determining that $60,000 should go to Mrs Campbell. 
[32]
In respect of SPM Limited, that situation is vastly different in that Mr Bland was not injured. There is no suggestion that he came close to falling. Although I am treating these two companies as separate entities, I do of course note their close connection. 
[33]
In respect of SPM Limited they are fined $7,500. 
[34]
There is no order as to costs. 

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