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Safeguard OSH Solutions - Thomson Reuters

Safeguard OSH Solutions - Thomson Reuters



OSH Tracker

Department of Labour v Goleman & Co Ltd (DC, 17/09/07)

Sentencing Tracker

Principal Offences:
Failing to ensure safety of employee (s 6 and s 50(1)(a) Health and Safety in Employment Act 1992)
Plea:
Guilty
Non-Custodial Sentences:
$3,550 reparation to victim and $13,500 fine
Aggravating Factors:
Serious harm risked by offender
Mitigating Factors:
Remorse
Remedial action at site
Victim support provided after accident
Early guilty plea
Co-operation with informant
Financial situation
Lack of previous convictions
Victim:
24, Male

OSH Tracker

Defendant:
Goleman & Co Ltd
GOLEMAN & CO LTD was fined $13,500 under s6 and ordered to pay $3550 in reparations to an employee who suffered bruises and lacerations when he fell through a skylight while scraping paint from a roof. The skylight had not been covered because it was wrongly assumed that there was a protective grille beneath it ( Christchurch DC, September 7). 
Industry:
Construction
Sub-Industry:
Construction Trade Services
Risk:
Fall from height
Harm:
Injury
Penalty Amount:
$17050.00
Reparation Amount:
$3550.00
Appeared in Safeguard issue 108

Judgment Text

RESERVED JUDGMENT ON SENTENCE OF JUDGE DJR HOLDERNESS 
Judge Djr Holderness
[1]
The defendant company, Goleman & Co Limited, pleaded guilty on 28 June 2007 to a charge laid under s 6 of the Health and Safety in Employment Act 1992 (“the Act”). 
[2]
By its plea the defendant acknowledged the allegation made by the Department of Labour that, being an employer, it had failed to take all practicable steps to ensure the safety of an employee namely, Cvetan Mitkov Ivanov, (“the victim”) while at work, in that it failed to take all practical steps to ensure that he was not exposed to hazards arising out of working at a height namely, the risk of falling through an unprotected skylight in his place of work. 
[3]
The offence occurred on 7 February 2007. 
[4]
The defendant is a contracting company. Since 1993 it has specialised in the Christchurch area in work carried out at heights. 
[5]
On the day in question the victim was working on the roof of the Bishopdale Community Centre. He tripped while scraping paint from an almost flat roof surface and fell through a dome shaped plastic skylight. It was one of three such skylights on the roof. 
[6]
The victim fell approximately 5.25m onto a carpeted floor in a hallway beneath the skylight. At about the time he landed on the floor the victim struck a table. As a result of the fall the victim sustained significant bruising to his back and left hip together with minor lacerations which were apparently caused as he fell through the broken plastic of the skylight. 
[7]
After being taken by ambulance to hospital the victim was x-rayed and physically examined. No major injuries were apparently. The informant suggests, and the defendant accepts, that the victim was extremely fortunate not to suffer serious, possibly fatal injuries. 
[8]
The victim was medically unfit for work for several weeks after the accident. The victim impact report discloses that he was considered fit to return to light duties by 20 February. 
[9]
In the event, the victim resigned from the defendant company as he did not wish to continue with the type of work he had been doing. He had been working for the defendant company for about two months prior to the accident. 
[10]
In early April the victim, who had come to New Zealand from Bulgaria where he had completed a masters degree at a sports university, commenced part-time employment with a soccer club as a coach. He has since undertaken some work as a relieving teacher. 
[11]
Reparation for direct financial loss amounting to $550 is sought. The defendant accepts this figure and through its counsel, Mr Ekanayake, also acknowledges that a modest award of reparation for emotional harm may be appropriate given the matters canvassed by the victim when he addressed the Court during the sentencing hearing. 
[12]
The victim was aged 24 at the time of the incident and is now aged 25. He explained to the Court that the accident occurred during his first day on this particular job. He said that the previous week he went up onto the roof of the community centre with Mr Brian Goleman to familiarise himself with the roof and the requirements of the job. 
[13]
The victim explained in his address to the Court that he had resigned from the defendant company because the significant fall had left him insufficiently strong mentally to continue working at heights. He said that the defendant company had gone out of its way to look after him after the accident and had provided him with a very good work reference. 
[14]
The victim expressed the view that he feels mentally strong now and that, although the effects of his injuries were substantial for a period of 20 to 30 days after the fall, he now feels he is improving every day and will be able to put the incident behind him and forget it. 
[15]
Mr Sam Eilmelech, of the defendant company, also addressed the Court as to the company's remorse and the steps it took to ensure that no further accidents of this nature will occur again. Mr Eilmelech also outlined the support the defendant company provided for the victim after the accident. 
[16]
I bear in mind all that the victim and Mr Eilmelech said in addressing the Court. 
[17]
The informant submits that the defendant's culpability is in the medium to high range because the skylights were not identified as a hazard despite the defendant being a specialist in relation to work at heights; because a failure to guard or otherwise protect the skylights was inherently dangerous with a potential for serious harm resulting from a fall of about 5m through one of them and because the installation of temporary covers would have been a relatively easy measure with only small expense being involved. Indeed, after the incident covers were apparently made from materials available from the defendant's own workshop. 
[18]
As to culpability, the defendant company acknowledges that it assumed there were grilles beneath the skylights. A check could readily have been made from within the building. Unfortunately, the situation was not checked and the defendant's assumption that any fall would be prevented by an internal grille in the skylight shaft was unfounded. 
[19]
As to s 7 and 8 of the Sentencing Act, the informant submits that denunciation and deterrence are of particular importance in this case given the degree of the defendant's culpability. 
[20]
As to penalty the informant submits that the amendment to the Act which took effect in May 2003, increasing the maximum fine for this type of offence from $50,000 to $250,000, would justify a starting point for a fine, before any discount, of $125,000. It is submitted that the defendant's failure: 
“ … to identify and control a glaringly obvious hazard which was notorious in the industry in which the defendant claims to be a specialist is, in health and safety terms, about as blameworthy as it can be. ”
[21]
It is also submitted by the informant that the harm risked by the defendant was very serious and could have led to a fall resulting in serious injury, paralysis or even death. The fact that the victim escaped with relatively minor injuries should not, the informant submits, operate to substantially lessen the fine. The informant suggests a 30 — 35% discount would be appropriate for the defendant's prompt guilty plea (entered on the first call of the information) and its significant co-operation with the informant. The informant acknowledges that a further discount to reflect the defendant's relatively modest financial position would be appropriate. 
[22]
In his submissions, Mr Ekanayake emphasised the defendant's previous unblemished record in relation to health and safety issues, the steps it took to identify hazards in relation to the job at the community centre (as a result of which the company's experienced safety officer undertook the riskiest work close to the edges of the roof) and the defendant's response to the accident including its remedial action at the site and its concern and support for the victim and his welfare after the accident. 
[23]
Mr Ekanayake stressed that the defendant is a relatively small company with a profit margin that is by no means substantial and that its financial position would not allow payments in reduction of a large fine at a rate of more than about $3000 per annum. 
[24]
Mr Ekanayake submits that the company's culpability in respect of the offence is low, or at the least moderate. 
[25]
Counsel referred to a post amendment case namely, Department of Labour v Fletcher Concrete and Infrastructure Limited trading as Golden Bay Cement (High Court, Whangarei Registry, CRI-2007-488-000001, 10 August 2007). 
[26]
In the Fletcher Concrete case the victim, an employee truck driver, fortuitously leapt from the cab of his truck, which he had reversed near to the edge of the respondent’ quarry, just as the ground beneath it gave way. The victim fell down the quarry face behind the truck. Although injured and rendered unconscious, the victim survived. The Court observed that had he remained in the cab his survival would have been unlikely. The victim was in hospital for one night, was off work for about three weeks and sustained no permanent injury. 
[27]
Counsel submitted that this case bears some similarities to Fletcher Concrete. In that case Gendall J discussed (inter alia) the sentencing criteria set out in s 51A of the Act and the proper approach to the assessment of penalty over and above any reparation fixed, as earlier discussed in Department of Labour v Ferrier Woolscourers (Canterbury) Limited [2005] DCR 356 and Department of Labour v Areva T & D New Zealand Limited (High Court, Rotorua, CRI-2005-463-000042, 9 November 2005). 
[28]
In Fletcher Concrete Gendall J (at [14]) described the offender's culpability as being in the medium range and observed (at [15]) that, but for his prompt action, the victim could have lost his life. After fixing reparation at $6000 the District Court Judge had imposed a fine of $4000. Gendall J increased the fine to $16,000 from a starting point of $25,000 or thereabouts. Allowance of almost a third for the guilty plea reduced this to $17,000. However, His Honour considered that an uplift of at least $5000 was warranted to reflect the respondent's two previous convictions for breaches of the health and safety legislation. This meant that His Honour saw a total penalty of $22,000 (including reparation) as the absolute minimum necessary by way of overall penalty. 
[29]
Although Gendall J in Fletcher Concret, had indicated (at [22]) that fines under the Act for this type of offence should bite, Ms Hoggard submitted that the increased fine of $16,000 imposed by His Honour did not meet that description. 
[30]
I consider that the judgment in Fletcher Concrete is of assistance in this case and that there are some broad similarities between the two cases. In my view the offender's breach in Fletcher Concrete was somewhat more serious. The risk of grave injury or death seems to me to have been greater in that case. 
[31]
I assess the defendant's culpability in this case as being in the moderate range. Although I consider the breach of s 6 in this case as somewhat less serious than in the Fletcher Concrete case, it was nevertheless a significant breach. The defendant's assumption about there being a grille beneath the skylight to prevent a fall down the shaft was the result of an approach which was too cursory. The skylights ought to have been covered or some other form of protection should have been put in place. That would have involved little expense or inconvenience for the defendant and it would have meant that the risk of injury would have been minimised. 
[32]
As mentioned above, Ms Hoggard (at para 41 of her memorandum) suggests a starting point of $125,000 for the fine before any discount for the defendant's guilty plea and other factors. For this type of case that would involve a very substantial increase in the level of fines previously imposed. It would in my view be quite out of line with, for example, the Fletcher Concrete case. In the absence of decisions of the higher courts indicating that the Health and Safety in Employment Amendment Act 2002 should be seen as justifying such a substantial uplift in the level of fines, this Court should in my view continue to be guided by the approach of the High Court in cases such as Fletcher Concrete
[33]
I consider that an appropriate award of reparation in this case is in the sum of $3550. This includes the figure of $550 for the direct financial loss suffered by the victim. The balance of $3000 is an amount which in my view is appropriate to compensate the victim for the emotional harm he suffered, which he described but did not over-emphasise in addressing the Court. 
[34]
I, therefore, order that $3550 be paid to the victim as reparation. 
[35]
As to the assessment of an appropriate fine, and taking into account the overall reparation figure, I have decided that the figure of $20,000 is an appropriate starting point. Given the defendant's previous good health and safety record; the lack of any previous convictions; its very prompt guilty plea and its response to the accident I am satisfied that a discount of approximately 33% is appropriate. I, therefore, impose a fine of $13,500. In doing so I have had regard, pursuant to s 51A(2)(b) of the Act to the defendant's financial capacity to pay a large fine. 
[36]
Together with the reparation the total penalty is therefore one of $17,050. 
[37]
The defendant is ordered to pay court costs of $130 and a solicitor's fee of $250. 

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