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Safeguard OSH Solutions - Thomson Reuters

Safeguard OSH Solutions - Thomson Reuters



OSH Tracker

Department of Labour v South Road Quarries Ltd (DC, 24/10/06)

OSH Tracker

Defendant:
South Road Quarries Ltd
A Taranaki quarrying company has received a $45,000 penalty following an incident in which a new employee was seriously injured when struck by a runaway vehicle with faulty brakes. 
South Road Quarries Ltd was fined $10,000 under s6 and ordered to pay $35,000 to the injured man (Hawera DC, October 26). 
The victim had been employed as a trainee operator at the company’s quarry in South Taranaki for just over a week when, on March 1 2006, a loader rolled down a hill and struck him from behind, crushing his pelvis and left leg. His leg had to be amputated above the knee. 
The loader’s park brake was known to be faulty and the site foreman who trained the worker had explained this to him. He was told to park the loader on flat ground with the bucket down to prevent it rolling away. 
On the day of the accident, the trainee parked the loader and lowered the bucket, but left the engine running while he checked a pump. The vibration of the engine apparently worked the bucket loose from the ground, allowing the machine to roll down a slope and strike him. 
Industry:
Mining
Sub-Industry:
Other Mining
Risk:
Vehicle - road (eg truck, car, bus)
Harm:
Injury
Penalty Amount:
$45000.00
Reparation Amount:
$35000.00
Appeared in Safeguard issue 102

Judgment Text

NOTES OF JUDGE L M BIDOIS ON SENTENCING 
Judge L M Bidois
[1]
South Road Quarries Ltd has pleaded guilty under s 6 and s 50 of the Health and Safety Employment Act 1992 in that it being an employer failed to take all practical steps to ensure the safety of an employee, in this case, Mr Nairn, in that it failed to take all practical steps to ensure that a loader that it used was maintained in a safe manner. 
[2]
The summary, of which there is no dispute, indicates that the defendant company operates a quarry. The defendant employed the victim, Mr Nairn, as a trainee operator. On 1st March he suffered some serious harm when he was crushed by the loader. A Mr Kilpatrick, who was the site foreman, had trained Mr Nairn and he told him during the use of the loader that the park brake was not functional. Mr Kilpatrick showed Mr Nairn how to park the loader on a flat piece of ground with the bucket down to prevent the loader from rolling away. On 1st March after stopping the loader and lowering the bucket Mr Nairn got out to check on a pump, while leaving the loader running. The vibration of the loader appears to have vibrated loose the contact of the bucket with the ground and the loader gathered momentum down the ramp and struck Mr Nairn from behind. He sustained severe crushing of the pelvic area resulting in severe boney and soft tissue damage. His left leg was subsequently amputated. 
[3]
The informant's investigation revealed the following breaches. Firstly, the defendant failed to take all practical steps to ensure the loader that was used by Mr Nairn was so maintained that it was safe for him to use; practical steps ensured that the park brake of the loader was maintained and was capable of holding the motion of the loader. There are pictures of the loader and the site. 
[4]
In respect of this matter I have received written submissions and I have heard from Mr Hargreaves this morning in terms of penalty. 
[5]
Relevant sentencing principles and purposes I have to have regard to include holding the defendant accountable, there is a need to promote a sense of responsibility in them; deterrence and denunciation are paramount considerations when dealing with work place safety legislation. I have to have regard to the effects the offending has had on the victim, but also have regard to the personal circumstances of the defendant company. 
[6]
Mr Hargreaves submits that the degree of fault by the company was in the medium to high range. Mr Hargreaves refers to s 32 of the Act which enables the Court to impose reparation. He submitted that the conduct leading to the offence needs to be denounced publicly. Such denunciation could assist in reminding employers and in particular, owners and operators of heavy earth moving machinery of the need to ensure that machinery is maintained in a safe working condition at all times. 
[7]
In the case of De Spa the Court there said deterrence for present purposes requires a fine at a sufficient level to encourage other employers to take seriously their obligations to actively seek out hazards and deal with them. 
[8]
Mr Hargreaves submits that the defendant's culpability was in the medium to high range for four reasons, Firstly, the defendant was aware that the park brake on the loader was not operational, Secondly, the park brake had been in that state for some time. Thirdly, the potential for injury as a result of a defective park brake ought to be apparent. Fourthly, the consequences could have been fatal for the victim. He refers me to a number of cases in which he submits is relevant to the Court imposing a total fine/reparation in the region of $50-60,000. 
[9]
Mr Mooney for the company emphasises the company has pleaded guilty, that it has remedied the fault. He submits that the degree of fault was towards the lower end of the scale. He emphasises that all the workers knew about the fact that the hand brake was not operational and were taught how to deal with that issue. 
[10]
The aggravating features that I see is, of course, the effects the offending has had on the victim. There is a victim impact statement which is before the Court. Mr Nairn suffered severe crush injuries to the lower torso, including an open book fracture to the pelvis, removal of a section of his large intestine and severing of the urethra. His leg was amputated above the knee. He had a heart attack on site. There has been secondary infection. There is a good chance that he may regain some bladder control and function. There are other complications as a result of injuries sustained. That may include difficulty in attaching a prosthetic leg. He undergoes occupational therapy. He maintains a positive attitude to his recovery. He sees the challenge of learning to walk again simply as a step towards re-entry to the work force, His income has dropped. A job has been guaranteed for him at the quarry. ACC has assisted in providing a car and some renovations, The victim works hard to remain positive throughout treatment and convalescence. He derives significant self esteem from his ability to work, contribute to the community and earn an income. He has enjoyed participation in sports. He has a supportive wife, who this offending has impacted on as well. There is no doubt that the offending will impact on a wide range of Mr Nairn's life, 
[11]
The mitigating factors that I see are the immediate plea of guilty entered by the company, the fact that they are first offenders, the fact that they are remorseful for their actions. I am told that there have been ongoing discussions between the company and the victim, hence no need for a restorative justice meeting. The offer of amends includes providing Mr Nairn with full time employment for the rest of his life once he is able to return to the work force. I also have regard to the fact that the company has remedied the fault. 
[12]
I have to assess the overall seriousness of the offending. The defendant operates heavy machinery as part of its quarry operations. Heavy machinery requires skilled operators, The risk of harm is predictable if it is misused or if the machinery is not working properly. The park brake was faulty. That was known to the supervisor. Why steps were not taken to fix it, is unbelievable, particularly when you have trainee operators coming on site. It seems to me to be no excuse for failing to get it fixed. I am told that there was a general maintenance update on the loader which cost $1000, so one would assume that just to fix the park brake would have been much less. It was deliberate inaction by the company. A hand brake, one would think, is fundamental to the use of a heavy machine like a loader. It had been inoperable for a period of time. As a result of that fault it lead directly to the victim being crushed, causing serious injuries. One has to admire and respect the victim, despite the serious injuries that he sustained, that he remains so positive; that he has a desire to walk again; a desire to return to work. He has, no doubt, the support of a loyal and supportive wife. He is another example of a robust Kiwi who has overcome serious injuries and he wants to go on and lead a fulfilling life, 
[13]
The focus has to be on the fault and reparation, in my view, having regard to the serious dereliction of the duty of the company in not fixing a known fault such as a hand brake. In my view that would lead to a finding of medium to high degree of fault on their behalf. 
[14]
In respect to this matter the company, having regard to the mitigating factors that I have identified, will be fined $10,000 plus costs and ordered to pay emotional harm reparation of $35,000. There will be an order for solicitors costs of $150. 

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