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OSH Tracker

Department of Labour v Ridland Contracting Limited (DC, 17/12/07)

OSH Tracker

Defendant:
Ridland Contracting Ltd
RIDLAND CONTRACTING LTD was fined $10,000 under s6 and ordered to pay $15,000 in reparations to a worker who suffered serious injuries to his right foot, including amputation of three toes, when it was crushed by the compacting platen of a rubbish truck. The injured man had started work as a paper runner on the defendant’s recycling truck only the day before the accident ( Auckland DC, December 17 2007). 
Industry:
Personal and Other Services
Sub-Industry:
Other Services
Risk:
Machinery (trapped, crushed, cuts)
Harm:
Injury
Penalty Amount:
$25000.00
Reparation Amount:
$15000.00
Appeared in Safeguard issue 110

Judgment Text

NOTES OF JUDGE A-M J BOUCHIER ON SENTENCING 
Judge A-M J Bouchier
[1]
The company, Ridland Contracting Limited, has pleaded guilty that on or about 12 December 2006, so just over one year ago, being an employer, did fail to take all practicable steps to ensure the safety of an employee while at work in that it did fail to take all practicable steps to ensure that the employee was not exposed to the dangerous parts of a waste compacting machine. 
[2]
The company has pleaded guilty at an early opportunity and the matter is now for sentence. 
[3]
The summary of the facts supplied by the informant says as follows: 
“The defendant company is contracted to Full Circle, a division of Carter Holt Harvey Limited, to collect paper and cardboard from kerbside paper recycling and owns a compactor truck used for such. They were the employer of a paper runner, Mr Wylie Collins, who on the 12th of December 2006, suffered the amputation of his right first, second and third toes when they came into contact with the compactor platen on the truck. The truck is equipped with a compacting machine mechanically operated by pushing buttons to start and stop the cycle and the paper and cardboard collected by runners emptied into the hopper and a control button on the side of the truck is pushed to activate the compactor. Mr Collins had commenced employment the day before the accident. Whilst he had been inducted into the company that had been in English whereas his first language is Samoan. Mr Collins was emptying a woollen paper bag of paper and cardboard into the truck and while emptying it paper dropped out of the hopper and he tried to push the paper in with his hands but when that failed he used his foot and at the time the compactor platen was cycling, his foot got caught by the compactor platen as it grabbed the paper, pulled it upwards resulting in his foot being crushed between the compactor platen and the body of the machine. The informant submits that the defendant should have taken the following practicable steps to: 
(a)
install a fixed or interlocked guard on the compactor machine to isolate the tripping hazard preventing employees from reaching into the danger area during operation; 
(b)
train the runners in safety of the machine and ensuring they understood the training provided. ”
[4]
The maximum fine available is $250,000. The informant's submissions to me are presented in written form and they have spoken to those today. They set out in introduction that the defendant company has pleaded guilty to a charge brought under s 6 and s 51(a) of the Health and Safety in Employment Act 1992. It sets out the background, the event and what occurred. They have filed a victim impact statement, which is annexed to their submissions, and an updated one, and this is prepared by, interestingly enough, a Mr Fuimaono from Health and Safety who undoubtedly was speaking to the victim in his native language, so it sets out what happened from his perspective that he was employed for one day before he had his accident and he was on a visitor's permit. He sets out that he had three toes amputated, requiring an operation for skin grafts, he was in hospital for about two weeks and discharged just prior to Christmas. 
[5]
Accident Compensation has paid for his medical expenses and his aunt was paying for all other expenses of food and clothing. He and his family were living at his aunt's house and she has a mortgage and he was not contributing as his wife was not working, nor was he. This has been a burden financially on his aunt. They had a baby born on 15 June 2007 and they had to pay hospital fees of $4,800. The aunt pays for the doctor's checks and other medical expenses. He then sets out the emotional harm that he has suffered as a result. He has problems with balance. He can no longer wear jandals. It affects his lifestyle. His foot gets sore. If he walks without shoes, he can only walk a small distance. He can no longer play sports and gets depressed, and is ashamed of the look of his injury. He is concerned that it will affect his application for permanent residency and his ability to work. 
[6]
Going back to the informant's submissions, they set out the relevant law and look at the purposes and principles of sentencing under s 7 of the Sentencing Act, holding accountable for harm done, deterrence both specific and general, s 8 of the Sentencing Act and the following matters are drawn to my attention that I must look at: 
a)
The gravity of the offending including the degree of culpability; 
b)
The seriousness of the type of offence; 
c)
The effect of the offending on the victim which I have already referred to; 
d)
The desirability of consistency with other sentencing levels and the harm done. Again, I have addressed that in looking at the victim impact statement. 
[7]
The informant then turns to deterrence and that is of particular importance in respect of this Health and Safety Act because it is a public welfare statute designed to protect people at work and those affected by work. They refer me to the well-known case of Department of Labour v De Spa & Company Ltd [1994] 1 ERNZ 339Has Cases Citing which are not known to be negative[Green] , which is, as I say, one which is very well familiar to the Court. 
[8]
They note that a high number of workplace accidents occur in this country as a result of unsafe working environments and submit that any fine imposed in this case must be at a sufficient level to genuinely discourage the defendant and others to take their obligations seriously. They look at the gravity of the offending and refer me again to De Spa. They submit that the culpability is in the medium range for the following reasons, that the hazard had already been identified because it was identified in the defendant company's health and safety manual. 
[9]
The informant submits that the instruction and training were given without being aware whether the victim was able to understand because he was instructed in English and his first language was Samoan and he spoke limited English. 
[10]
The informant submits that the hazard could be adequately safeguarded and controlled by having a guard of sufficient length and an effective interlock system. Guidelines are available for providing various options to guard the compactor. The informant submits that the offence is serious and refers to the maximum fine available, which shows that Parliament takes the matter very seriously. They refer to the effect on the victim and the victim impact statement. 
[11]
In terms of aggravating factors relating to the offending or offender, they note that the defendant company has no prior convictions for health and safety offending. 
[12]
In terms of mitigating features, the informant notes that the defendant company is entitled to credit for its early guilty plea, its co-operation with the informant throughout the investigation and supplying all information requested. 
[13]
The financial capacity of the defendant is then discussed in terms of s 35 and s 40 of the Sentencing Act and s 51(a) to (b) of the Health and Safety Act. They had no knowledge at the time the submissions were prepared as to the financial capacity and nor were they aware at the time whether the company was insured. 
[14]
They submit to me that under the Act a sentence of reparation to the victim is a primary consideration and that the Sentencing Act requires the Court first to consider a sentence of reparation and then a sentence of fine must be considered. They refer me to a number of cases. In Department of Labour v Ferrier Woolscours (Canterbury) Limited [2005] DCR 356Has Cases Citing which are not known to be negative[Green] , Judge Abbott setting out what has come to be referred as the two-step approach in which His Honour said, firstly, the Judge must fix the amount which the offender should pay by way of a reparation on a stand-alone basis. That is solely by reference to the amount which is properly claimable in the offender's means. 
[15]
Secondly, the Judge must then determine whether any additional penalty by way of a fine should be imposed with the amount of the reparation sentence being taken into account when assessing the quantum of the fine. The informant refers me to the Department of Labour v Areva T & D New Zealand Limited, HC Rotorua, CRI-2005-463-000042, 9 November 2005, where Priestley J confirmed that two-step approach and they provide me with other cases to show guidance on the factors to be taken into account in endeavouring to quantify a sentence of reparation, and the Court is required to consider economic loss and emotional harm for the victim and I asked the informant to submit a figure which in their submission would take account of those factors and which the Court might have in mind when considering reparation and Mrs Carr has submitted an award between $15,000 to $25,000 could be given and that is with reference to decided cases where awards have been made in slightly similar circumstances, not exactly similar circumstances, of between $5,000 up to $65,000. 
[16]
Fine levels are then addressed and the informant notes that there are no tariffs for offending of this nature. They refer me to the dicta of Priestley J in Areva as to where His Honour says there is nothing improper about imposing a fine where Parliament has imposed one. A fine is a penalty and a sentence. 
[17]
The informant then sets out some tables to illustrate fines under the Health and Safety Act and, in particular, the fines post the increase of the maximum penalty. 
[18]
The submission of the informant is that the existing fine levels in respect to health and safety prosecutions are consistently inappropriate and that the Court is consistently failing to recognise the seriousness of health and safety offending. However, the informant submits that Courts have not been taking this fully into account and they refer me to a case where the penalty imposed by the Court in the first instance was increased four-fold by the High Court in the Department of Labour v Fletcher Concrete and Infrastructure Limited t/a Golden Bay Cement, CRI-2007-488-000001, a decision of Gendall J in the Whangarei Registry dated 10 August 2007. 
[19]
The informant then goes on to consider the appropriate fine for this defendant, that the Court should clearly identify a starting-point and then consider the particular circumstances of the offender. The gravity of the offending is such that a starting-point in the vicinity of $120,000 should be considered. Culpability being a major component and the submission being that the culpability is of a medium range because the hazard had been identified and the defendant company had failed to adequately control this hazard. Because of those factors, the informant submits that given a proper discount for guilty plea, co-operation and the personal circumstances of the company, a fine in the range of $60,000 should be given. 
[20]
The informant then goes on to consider the issue of insurance, and note that it is unlawful under the Act for a company to be insured in respect of their liability to pay a fine, but it is lawful to be insured in relation to reparation. They note that if a Court imposes a fine, s 40(4) of the Sentencing Act provides that if a Court imposes a fine in addition to a sentence of reparation, it must in fixing the amount of the fine take into account the amount of reparation under the sentence of reparation. The informant submits that the reparation will be met by the defendant's insurer and that that should not be taken into account when assessing the fine. A solicitor's fee of $250 is also sought. 
[21]
The defence submissions to me set out an introduction and background to the health and safety systems. They are annexed to the submissions under tab one, and those procedures are certainly, when one looks at the number of pages and the sort of matters which are covered, comprehensive. What they cover in the submissions are as follows: 
a)
Safety manual; 
b)
Occupational, safety and health policy; 
c)
Health and safety assessment form; 
d)
Hazard identification and control; 
e)
Health and safety monthly meetings; 
f)
Employee induction and training. 
[22]
Despite its efforts to ensure a safe working environment, the company accepts it failed to undertake all practicable steps once it identified the potential danger of an employee being caught in the compactor. They did, however, engage a mechanical engineer to investigate and his report, all 16 pages of it, is at tab two of their submissions. 
[23]
It is clear that Mr Stevens does not find a solution easy. Mr Stevens' report, however, confirms that the company identified getting caught in the compactor as a significant hazard and the company accepts it should have instigated the additional step of ensuring more appropriate guarding. To induct Mr Collins on his first day of employment, the company acknowledged that his first language is Samoan but he does speak some English and appeared to understand what was said. In discussing the matter with counsel, I asked how the company had dealt with the issue of translation of the voluminous health and safety literature which is on the file with someone with English as a second language, and also to deal with the cultural aspects of Pacific people agreeing with those in authority because they wish to appear respectful. 
[24]
According to the submissions, Mr Collins confirmed that he understood the process in a statement to the informant on 23 April. They sent the induction process, a copy of it, home with him so that his aunt could translate it for him. 
[25]
In the submission, they attach a copy of the translation of Mr Collins' statement and in that he acknowledged that he was trained and understood the safety issues and that he did not follow the instructions. In addition to what is supplied by way of safety instruction and the written matters, apparently the company shows by way of putting a piece of four by two into this compactor to show exactly and graphically what happens if the machinery is dealt with improperly. 
[26]
In terms of the sentencing, the defence submissions acknowledge that the Health and Safety Act obliges the Court to apply the Sentencing Act and the particular regard that the Court must have to s 7 to s 10 of the Sentencing Act, the requirements of the offender to pay a fine and/or reparation, the degree of harm that has occurred, their safety record, the fact that they have pleaded guilty and shown remorse for the offence and harm caused. They have co-operated with the authorities and taken remedial action. They submit that the Court is of course obliged to consider the particular circumstances of each case. And fundamental to that is the assessment of culpability for the breach. They submit the highlighting by the informant of the need for deterrence, that this broad policy factor should not outweigh the particular circumstances of the case. 
[27]
They acknowledge also the factors in s 7 and s 8 of the Sentencing Act that the Court must take into account and in particular as far as s 8 they note not only the factors which the informant has but also highlight the particular circumstances of the offender and they have in an effort to show the Court consistent with appropriate sentencing levels submitted a table that looks at 18 months' worth of sentencing in the courts with similar, although of course not exactly the same, types of offending. 
[28]
They accept that the victim suffered serious harm. They look at the steps taken in terms of failing to provide adequate guarding and say that the failures were not deliberate, that it is a small employer with limited resources, which took its obligations seriously and undertook to take extensive steps to identify and eliminate hazards and to induct Mr Collins on safety aspects. Their submission is that the culpability is at the lower end of the scale given their attempts to fully train him and they do not agree with the informant's submissions that further guarding could easily have been installed and point to Mr Stevens' report and the difficulties that he discussed in that report in implementing the various guarding options. The suitable guard arrangements that are proposed by Mr Stevens and note that Ridland Contracting Limited is now implementing the first and second options outlined at page 14 of Mr Stevens' report and that it is continuing to further remedy the truck in consultation with the Department. 
[29]
Although the company identified the hazard, it is submitted that they were not capable of simple or minimal effort rectification. They refer me then to tab five and the comparison that they have submitted with other sentencing levels. 
[30]
With the effect of the offending on the victim and the degree of harm, they note the submissions and the victim impact statement. They refer me to s 9 and s 10 of the Sentencing Act and what the Court must take into account as mitigating features and they are the early guilty plea and any fault on the part of the victim in evidence of the company's previous good character. Further, that the Court must take into account any remedial action taken or proposed to be taken and in mitigation it is submitted that the following matters have been done which include: 
a)
The removal of the automatic function from the operator of the compactor mechanism; 
b)
The positioning of the controls where the operator cannot reach the compactor mechanism; 
c)
They have taken further significant steps to prevent the accident reoccurring; 
d)
They have fully operated with the informant, allowed unfettered access to the Department of Labour; 
e)
Commissioned a mechanical engineer's report; 
f)
Entered into discussions with the Department of Labour's mechanical engineer on remedial options; 
g)
They have no previous convictions and an excellent health and safety record. 
[31]
On reparation, they refer the Court to s 12. The only case they have been able to find is Clutha Chain Mesh Products Limited v Department of Labour [2005] 7 NZELC 97 at para 17 and they have attached that as tab seven of their submissions. They refer to the High Court stating as follows: 
“The Judge's function is to identify what the proper level of reparation is in a particular case. The Judge must then consider the offender's capacity to pay. If the capacity to pay is unlimited that does not justify any increase in a reparation order because the offender is insured or wealthy. At best, the victim will get the full amount of what can be justified. ”
[32]
It is submitted that the table of cases supplied by the defence in tab five indicate an appropriate reparation report that is within the range of $5,000 to $15,000. They then go on to look at a fine. Ridland Contracting is in financial difficulty. At tab six, they have supplied an accountant's statement and in the letter, which is the first page of the financial statement, the accountant notes that the company now has negative assets at $74,000. In addition, its current liabilities exceed its current assets making it technically insolvent. However, as the external current liabilities amount to only $49,000, the directors are comfortable that through continued trading these can be reduced. The letter goes on to say, however, the company based this on its current trading performance, and the health of the company, it would have severe difficulty in raising any additional finance and would suffer severe hardship if it incurred additional liabilities. 
[33]
Looking then at the issue first of reparation and the two-step approach that should be taken. I asked Ms Carr to address the issue of the level of reparation in her oral submissions to me. She has of course been counsel for the Department for many years and so from her knowledge she has made a submission that awards range from between $5,000 in relation to amputation of fingers through to amputation of a leg below the knee of $65,000. The defendant has supplied me with the range of fines and reparations ordered in tab five and therefore that it is a principled approach to try to distil what should be imposed in the circumstance. 
[34]
Of course, in looking through the injuries sustained by various workers or employees, the fact situations are all very different and as Mr Mitchell has pointed out, it is hard to obtain sentencing notes of these matters to more fully inform the Court of the factual situations so they must rely on the brief factual situations which they have included here. They submit that probably the most analogous factual situation that can be distilled from this table is a decision in the District Court in Invercargill on 18 July 2006 with the defendant being D T King & Company Ltd where the reparation award was $12,000. 
[35]
So in attempting a principled approach to what should be an award of reparation, having accepted that it should be given in this case, and that there is insurance to cover it, I am of the view that a reparation order in the figure of $15,000 should be imposed and I do so impose it. 
[36]
I then go on to consider the question should there, or should there not be a fine. Quite clearly, in my view, there must in terms of the decided cases, the Sentencing Act, and the Health and Safety Act, be a fine. Clearly, also, Parliament intends this Act to be taken seriously given the height of the maximum fine available. Also, it is the submission of the informant which I do take account of that fines which have been imposed in District Court for this legislation have been found by the High Court to be inadequate and it may well be that they have been consistently so. The cases which have been supplied to me by the informant, however, deal with major companies and the names of the likes of Carter Holt Harvey and Fletcher Challenge and their various subsidiaries have been quoted in the case law supplied by the informant. I have to deal with a company which is a small company which has the mitigating factors identified by the defence which I accept as being the mitigating factors involved here and the financial position of the company which has been fully set out by their accountant. 
[37]
All of these factors must be balanced so in accepting that there must be a fine and quite possibly the fines imposed in this District Court have been too low, I must keep in mind the personal circumstances of the company. A starting point must be identified. Credit must be given for a guilty plea and co-operation and the other factors referred to by the defence and a final figure then arrived at. 
[38]
It is certainly difficult in this circumstance to pinpoint that starting point given all the factors which both the informant and the defendant have pointed out to me. Certainly, also, the Sentencing Act and Health and Safety Act, factors which have been pointed out, again make this very difficult. In accepting of course that serious harm has been done to the victim, I now consider the culpability which assists in coming to the starting-point. The culpability I find is in the low to medium range, in the middle thereof. Then taking a starting point, I am of the view that a starting-point here is $50,000. I have no doubt that the company will then be considering that that starting point is very high when one looks at their financial circumstances. 
[39]
I now come to consider those factors. An early guilty plea entitles a considerable credit. Co-operation entitles them to a considerable credit. Identification of the hazard, their health and safety record, also entitles them to a credit. The steps that they have taken to remedy the situation entitles them to a credit. It is clear in my view from the engineer's report supplied by the defence that this is not such a simple problem as the informant submits. So then the financial considerations, they are in this particular company's circumstance most important. I then come to, in their particular circumstances, and this cannot possibly be in any shape or form considered as any form of precedent for any other company or individual who transgress in this way, so having considered all those factors that I have just enumerated, I then come out at a fine in the figure of $10,000. There are court costs of $130 and a solicitor's fee of $250 imposed. 
[40]
An arrangement can be entered into with the Registrar to pay that off on a weekly or monthly basis and the company will have to do that. 

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