Skip to Content, Skip to Navigation
Advertisement

Safeguard OSH Solutions - Thomson Reuters

Safeguard OSH Solutions - Thomson Reuters



OSH Tracker

Department of Labour v Oakes (DC, 26/09/07)

OSH Tracker

Defendant:
Robert George Oakes
Construction site project manager ROBERT GEORGE OAKES was fined $5000 under s19 and ordered to pay $6500 in reparations to a worker who fell 4.8 metres down a stair void which had temporarily been left unguarded. The injured man, who fell from second floor level as he attempted to carry a roll of carpet upstairs, suffered bruising and a broken clavicle.  The stair void had previously been guarded, but this had been removed by another worker shortly before the accident ( Tauranga DC, September 26). 
Industry:
Construction
Sub-Industry:
General Construction
Risk:
Fall from height
Harm:
Injury
Penalty Amount:
$11500.00
Reparation Amount:
$6500.00
Appeared in Safeguard issue 108

Judgment Text

NOTES OF JUDGE C J HARDING ON SENTENCING 
Judge C J Harding
[1]
Mr Oakes appears today for sentence having pleaded guilty at an early stage in connection with two charges under the Health and Safety in Employment Act. Both allege that as an employee he failed to take all practicable steps to ensure that an action does not cause harm. 
Background 
[2]
The facts are in a reasonably small compass. The defendant was at the time employed as a site manager, responsible overall for management, including health and safety, at the site of an apartment development. On 15 December 2006 one of the other people there fell and suffered fractured left clavicle and bruising to his left side chest and hip area, when he fell approximately 4.8 metres through an unguarded void on the second floor to the ground. At the time the void had not been protected with some form of temporary barrier or covering and it was the defendant's role to ensure that full protection had been in place. 
[3]
This was not a matter where there had been no steps however by the defendant. The hazard had previously been identified. Steps had been taken to protect from it. A safety consultant had been involved and made recommendations and it seems likely that the planks which were preventing what happened had been removed during the day. 
[4]
The informant says that this is high level offending because if there had been a daily check the accident could well have been prevented but I do not accept that that is the case. Although the defendant was expressly responsible to ensure full protection was in place, such protection had been in place and had been removed at some point relatively close to the accident, which occurred when the injured person was taking a roll of carpet upstairs and stepped sideways in order to negotiate a corner, with unfortunate results. 
[5]
The person concerned was hospitalised for some hours, received a number of treatments from a chiropractor, is requiring ongoing treatment with a chiropractor to maintain mobility and has suffered financial loss to the extent of just over $4,500.00 as a result of what occurred. In addition he continues to feel fragile and hesitant about a knock on the shoulder area and is more aware of issues involving working at height. 
Sentencing Factors 
[6]
There were practical steps reasonably available to prevent this but on the totality of the material before me they had been there until recent times. The degree of culpability I assess as medium; the danger being obvious, the steps normally taken being enough and the events of relatively recent occurrence. 
[7]
The degree of harm is accepted by Mr Oakes as being serious in terms of the Act. Mr Oakes I think can fairly be described as generally compliant, a person who has had processes in place and sought, and in the main acted on advice. He has no previous appearances. Mr Oakes is liable on each charge to a fine not exceeding $250,000.00. In assessing the appropriate outcome I am required to hold him accountable for harm, to promote the interests of victims and to consider issues of reparation, denunciation, deterrence and the protection of the community. Those issues are all plainly relevant. I am also required to have regard to the culpability and gravity of the offending, to the effect on the victim and to elements of consistency. 
Aggravation 
[8]
The informant submits that aggravating the situation here was the fact that the defendant was experienced, that there were simple steps available, that they had been made known and that the defendant had been on site all day and that the harm was serious. I do not regard those as truly aggravating factors in the present context. Being experienced cannot of itself aggravate the position. The fact that steps were known I have already commented on, and I have already indicated my understanding that in the main, up until this date, protections had been in place. The harm was of course serious. 
Mitigation 
[9]
The mitigating factors include the lack of previous appearances for similar matters, the early guilty plea and the co-operation of Mr Oakes with the Department of Labour. I also take into account that he has lost his job as a result it seems and is now on a considerably less income than was the case. 
Reparation 
[10]
I am firstly required to have regard to questions of reparation. Only one person was injured, although there are two charges, to reflect danger to two people. That person suffered loss in economic terms of $4,519.68. There is also limited emotional harm in my view but emotional harm reparation needs to be considered in addition. 
[11]
In all of the circumstances I conclude that total reparation of $6,500.00 should be paid and it seems that Mr Oakes, with some accommodations, can cope with that at the rate of $100.00 per week. 
Fine 
[12]
The informant submits that the totality of sentencing for both charges should start from the prospect of a fine of some $20,000.00, with appropriate reductions for mitigation and allowance for reparation. Mr Ward-Johnson submits that, particularly when the financial circumstances of Mr Oakes are taken into account, and in comparison with a not dissimilar matter in this Court, namely Department of Labour v Baker CRI 2006-070-6206, a lesser sum can be arrived at. In the case to which I am referred the total result was of the order of $12,000.00 for a single charge and it must have been reduced by an appropriate amount from a starting point. That would put the starting point there at nearly twice what the informant submits is appropriate here. 
[13]
I am satisfied that, on a totality basis, a starting point of some $20,000.00 or thereabouts is an appropriate amount and that when proper allowances are given for reparation and the mitigation factors, the result is within the means of the defendant to pay. 
Result 
[14]
In the circumstances I conclude that as far as the charge relating to the man who was injured is concerned, there should be an order, in addition to a conviction, that the defendant pay reparation for both economic loss and emotional harm of $6,500.00 and that in the circumstances no other fine ought to be imposed in connection with that matter. 
[15]
In the remaining matter, taking a starting point of the order of $20,000.00 and reducing that by a third for plea and mitigation factors and allowing for the reparation already ordered, a fine of $5,000.00 together with Court costs of $130.00 is imposed. Mr Oakes is sentenced accordingly. 

From OSH Tracker

Table of Contents