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Safeguard OSH Solutions - Thomson Reuters

Safeguard OSH Solutions - Thomson Reuters



OSH Tracker

Department of Labour v Acrow Ltd (DC, 15/08/07)

OSH Tracker

Defendant:
Acrow Ltd
Industry:
Construction
Sub-Industry:
Construction Trade Services
Risk:
Struck by falling object
Harm:
Injury
Penalty Amount:
$20000.00
Reparation Amount:
$15000.00
Defendant:
Acrow Ltd
A load that fell from a forklift and struck a truck driver was an accident waiting to happen, a district court judge told the forklift driver’s employer. However the company’s “exemplary” actions after the accident cut its penalty from a possible $30,000 to $20,000. 
Judge Peter Rollo fined Acrow Ltd $5000 under s15 of the HSE Act, for failing to ensure that another party was not harmed by the actions of its employee. He also ordered it to pay $15,000 to the injured man, who suffered leg, foot and checkbone fractures, scalp lacerations and nerve damage to his jaw when a bundle of scaffolding pipes spilled from a forklift at Acrow’s Mount Maunganui yard (Tauranga DC, August 15). 
The accident occurred in November 2006, when the truck was at the foot of Acrow’s sloping driveway, waiting for a load of scaffolding. As the forklift came down the slope, forks first, the 576kg load slid forward and fell, sending scaffold framing tumbling onto the driver, who was beside his truck. 
The yard previously had two gates, so vehicles could drive through, but access to one gate was lost when the site changed hands. Roadside loading was introduced shortly before the incident. The Department of Labour found that the forklift tines were too short, there was a steel lip on the driveway that could destabilise loads, and the forklift operator lacked an operating certificate. 
To the company’s credit, however, the judge said, it had immediately banned truck loading at the yard, and later leased more land so they could drive through. All company sites now had specialised loading training, more certified forklift operators, and modified forklifts to reduce the risk of loads falling. The victim had also received generous financial support. 
Industry:
Construction
Sub-Industry:
Construction Trade Services
Risk:
Struck by falling object
Harm:
Injury
Penalty Amount:
$20000.00
Reparation Amount:
$15000.00
Appeared in Safeguard issue 108

Judgment Text

AMENDED NOTES OF JUDGE P S ROLLO ON SENTENCING 
Judge P S Rollo
[1]
Acrow Limited is charged under s 50(1)(a) of the Health and Safety in Employment Act 1992 with the offence that being an employer, it failed to take all practical steps to ensure that another person, namely Trevor James Hamilton, was not harmed by the actions of one of its employees, Mr Wilbur-Smith, while at work, in respect of the loading and transportation of scaffolding components. 
[2]
The offence date is on or about 30 November 2006. Mr Hamilton was employed by a trucking firm. He regularly transported scaffolding equipment on behalf of the defendant company, from its Tauranga premises at Mount Maunganui. 
[3]
On this particular day, Mr Wilbur-Smith, the defendant's employee, was driving a forklift. He picked up two bundles of scaffold to load them onto the back of Mr Hamilton's truck. To do so, he had to drive down a slightly inclined ramp which lead from the premises and yard of the defendant out onto the road. 
[4]
As the loading manoeuvre was taking place, the scaffolding bundles dislodged from the forks of the forklift. The metal strapping binding the scaffold frames together broke and they dispersed towards Mr Hamilton who was standing to the right of the forklift. He was unable to move adequately out of the way because there was a parked vehicle blocking his exit. He was struck and trapped by the scaffold frames. 
[5]
The injuries he suffered were lacerations to his scalp and right cheek, a broken cheekbone, loss of sensitivity in his right cheek, nerve damage to his jaw, a fractured bone in his foot, a green stick fracture to his right leg and bruising to his chest and back from being struck by the scaffolding. He was hospitalised overnight and released the next day. He had five weeks off work. 
[6]
I am advised that he chose not to undergo some form of reconstructive surgery, because of the long recovery period required, preferring to return to work. He has ongoing effects from his injury, including ongoing dental treatment. 
[7]
The victim impact statement that has been filed by the informant sets out in more detail the effects for Mr Hamilton and indirectly for his family and those around him. He suffers continuing pain. He has had some loss of income, loss of sleep, and discomfort. He is self-conscious about his injury, although that is, I understand, improving. It has affected his confidence in the conduct of his work and life generally. 
[8]
The accident that Mr Hamilton suffered was one perhaps waiting to happen. The summary of facts and the submissions from Mr Houlistan, for the Department, and also from Mr Smith, for the defendant company, confirm that prior to the time of the accident, truck and trailer units entered and exited the defendant's yard by two access gates for loading and unloading purposes but the sale of the site has resulted in the loss of one accessway. 
[9]
Mr Smith, for the defendant, says that steps were taken with the landlord, whom I assume was the purchaser of the premises, to have a second gateway constructed so that that practice of trucks entering and exiting the yard could continue. But despite those requirements of the landlord, that gateway has not been provided. Up until September 2006, some two months prior to this incident occurring, loading continued in the yard with the trucks then reversing across Truman Road before turning off. However, a re-development of the site opposite to the gateway prevented that practice from continuing, hence the necessity to load on the road. 
[10]
The informant conducted its statutory investigation into the accident. That disclosed a number of problems, including the slope. A forklift travelling down a slope forwards with the forks inclined would have a propensity for loads to dislodge. There was also a problem with the forklift. The forks were found to be too short for the loads being carried. They were 1,220 mm long when they needed to be at least 1,400 mm long to support the required load. 
[11]
Further, the forklift driver was carrying two bundles at the time. There is comment that there is a 25-mm steel lip across the driveway which would appear to support runners for a sliding gate. That causes the forklift to bump as it crosses it which may, or may not, have been a factor in bringing about the dislodging of the load. 
[12]
The forklift driver, Mr Wilbur-Smith, was not the holder of a current certificate to operate a forklift. Nevertheless he was apparently an experienced operator of forklifts. 
[13]
The informant says that the defendant should have taken the practical steps of having in place a procedure that would have eliminated or remedied the matters revealed by the investigation. The informant says the cost of doing so was not expensive. 
[14]
The maximum penalty for this charge, I am advised, is a fine of $250,000. There is one previous appearance of the company in 2003 when a fine of $3,000 was imposed for a more minor offence. 
[15]
Mr Houlistan refers me to two cases in arriving at a starting point: Department of Labour v Power Warehouse Ltd, unreported Hamilton District Court, 8 July 2005, Judge McAloon, CRI 2004-019-9423 and the case of Department of Labour v Mainfreight Ltd, unreported, Auckland District Court 11 September 2006, Judge Wilson QC, CRN 06070500417
[16]
The first case involved a fatality. Its facts are somewhat different from the facts of the case immediately before me. Mr Smith seeks to distinguish it on that basis and I agree that it is of limited assistance today. 
[17]
The second case, Mainfreight, is more on point. That involved a similar sort of accident to the victim there. In that case two sheets of steel, weighing approximately 300 kilograms, had been loaded into a rail freight wagon. They were not secured nor laid flat. When the wagon was being unloaded, the sheets had obviously dislodged. When the victim opened the door, they sprung out and struck him on the side of the face causing lacerations around the right eye, the forehead and the rear of the head. Culpability was assessed as being medium to high in that case. A fine of $15,000 was imposed with reparation of $10,000 being ordered. 
[18]
The informant submits that the degree of harm in this case is in the medium to high range. It is serious harm in terms of schedule 1 of the Act. Aggravating circumstances, the informant refers to are the significant degree of harm, the risk of harm for the reasons disclosed in the investigation, the assertion that the defendant should have taken remedial steps prior to the accident which were simple and inexpensive, and the previous conviction, which I have referred to. 
[19]
Mr Houlistan concedes that the defendant is entitled to credit for an early guilty plea, for co-operation with the Department throughout the investigation and for remedial action after the accident. 
[20]
He has emphasised the requirement under the provisions of the Sentencing Act 2002 for reparation to be considered, both for economic loss and emotional harm, he says. He submits that the appropriate starting point for a fine is $30,000 in addition to any reparation order. 
[21]
Mr Smith has filed detailed and helpful submissions. He has spoken to those submissions. He has emphasised for the defendant that the company accepts responsibility for ensuring the safety of its employees and any other people, and that the company directors and managers have genuine remorse for the accident. Representatives of the defendant company nationally and locally are present in Court today, as is Mr Hamilton and his wife. 
[22]
Mr Smith deals with the circumstances of the accident much as I have set out in shorter form. He has emphasised that immediately after Mr Hamilton was attended to by company officers, OSH was notified of the accident. Senior managers convened for a meeting the next day at the site, all loading and unloading of truck and trailer units at the site was stopped, at some inconvenience and financial cost to the company. 
[23]
Mr Lyall, the Tauranga manager of the defendant company, endeavoured to visit Mr Hamilton in Tauranga Hospital early the next morning but by then Mr Hamilton had been discharged. There have been four subsequent visits, I am told, to Mr Hamilton by Mr Lyall with offers of financial and counselling support. Some money has been paid to Mr Hamilton in the interim by the defendant to cover his ongoing costs, $1,533 for lost earnings, $80.66 for various medical and prescription costs and $1,540 towards the cost of dental work. 
[24]
I note that from details provided by Mr Houlistan, it would suggest that the loss of income Mr Hamilton has experienced is in the region of $307, but Mr Smith says the company waives any overpayment that may have been made in that regard. 
[25]
Mr Smith says that the company conducted its own internal investigation into the accident and reviewed its safety and training procedures, both locally and using the accident as an example for all of its workforce on a national basis. It has included an analysis of safety and training in the procedure for loading, with recommendations to avoid such an accident at any of the company's sites in the future. 
[26]
This has been advertised in the company's national magazine. It has been emphasised by the health and safety manager and other officers fulfilling that role. The company has employed an independent consulting company, John Delaney Health and Safety Specialists Ltd, to perform a comprehensive hazard analysis of the Tauranga site and the recommendations arising from that analysis have been implemented. 
[27]
The defendant has also engaged an engineering company to design and manufacture a prototype slide on-slide off attachment, which would have a wooden surface to stop the scaffolding frames from sliding, I assume off the forks. If this is successfully trialled at the Tauranga site, then it will be introduced to all of the sites of the company nationally. 
[28]
The Tauranga site has leased additional space to provide a drive through option once again, and extended forks have been fitted, as I have referred to. A programme of having significantly more staff enrolled and passed forklift driving and safety training has also been implemented. 
[29]
Mr Smith's submissions refer to the Department of Labour's commenting that the defendant company is leading the industry on health and safety matters. In that regard, he annexes an email from Bruce McLaren, senior Health and Safety Inspector from the Department of Labour, Christchurch, who records “Regionally our inspectors report good relationships with your branches. You are clearly committed to seeing Acrow leading the industry. We look forward to supporting you this year in whatever capacity we are able”. The date of that email is 31 January 2007, some two months after this unfortunate incident. 
[30]
Mr Smith has also emphasised, and attached to his submissions, details of regular site safety meetings held by staff and their participation in training to that effect. Mr Smith's submission is that given these positive remedial steps taken by the defendant, this is not a case where specific deterrence is required and that any fine should reflect that. 
[31]
Mr Smith disputes the submission made by Mr Houlistan that the remedy to the problem that gave rise to this unfortunate accident to Mr Hamilton was not simple or inexpensive. It has been a not insignificant cost, reflective in some of the figures referred to in his submissions. 
[32]
The financial position of the company is not one of real significance. Mr Smith refers to a downturn in this financial year but accepts such matters are episodic. His submission is that the appropriate level of penalty is a fine in the region of $10,000 and reparation in the range of $5,000 to $7,000, having regard to the injuries to Mr Hamilton. In that regard he refers, by way of guidance, to the Mainfreight case
[33]
I assess the culpability of the company in this case as medium. It was, as I have said, alive to the difficulty with its loading procedure at that particular place. That of course is of little comfort to Mr Hamilton and easily it could have been of little comfort to other potential victims of such an accident occurring. 
[34]
The injuries suffered by Mr Hamilton were significant and will have some effect for him for some time. He has lost sensitivity to part of his face, which from the information before me, may well last the rest of his life. No blame can be attached to Mr Hamilton in the way in which he performed in this instance. 
[35]
The remedial steps taken by the company immediately after and following the incident have been exemplary. They have done everything it seems that could possibly be undertaken to try and put right what has happened and to avoid such an incident in the future. That is a significant factor for me to take into account. 
[36]
Deterrence is always necessary in cases involving this legislation. The comment has been made on numerous occasions in the Courts that employers must understand that it is more expensive to suffer a prosecution under this Act than to avoid their responsibilities to provide a safe, accident-free or hazard-free workplace, both for employees and other persons who might come to work places. 
[37]
I am satisfied from the material Mr Smith has put before me that Acrow Ltd is alive to that situation. As it has said in its national newsletter, “It is about safety, not about avoiding prosecutions”. However, of course, appropriate safety measures will avoid prosecutions, if they are successfully carried out. 
[38]
I consider that the appropriate starting point in this case is a total financial penalty, reparation and fine, in the region of $30,000. I consider that an appropriate reparation figure, having regard to Mr Hamilton's injuries and the likely effect for him throughout his life, is a figure of $15,000. I consider that the company is entitled to a discount from the starting point for the remedial steps which it has taken and its early guilty plea. 
[39]
It will be convicted and fined $5,000 and ordered to pay Court costs of $130 and ordered to pay Solicitor's costs of $250. Reparation of $15,000 payable to Mr Hamilton, is to be paid within 14 days. 

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