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Safeguard OSH Solutions - Thomson Reuters

Safeguard OSH Solutions - Thomson Reuters



OSH Tracker

Department of Labour v Talleys Frozen Food Ltd (DC, 17/01/08)

OSH Tracker

Defendant:
Talleys Frozen Foods Ltd
A food processing company was fined a six-figure sum after 11 employees were hospitalised with carbon monoxide poisoning caused by an LPG-powered forklift at the company’s Blenheim plant. 
Talleys Frozen Foods Ltd was fined a total of $110,000 ($10,000 on each of 11 s6 charges) and ordered to pay reparations totalling $33,000, being $3000 to each of the victims (Blenheim DC, February 28). 
The incident occurred in a work area where the only ventilation was provided by three exterior doors. Although the company had both LPG and electric forklifts, LPG forklifts were allowed to enter the work area to pick up or drop off pallets. 
On June19 2006, an LPG forklift was used in the area for some six hours. The operator, who was one of the employees who was taken ill, said he had not been told about the dangers of using LPG forklifts in enclosed spaces. 
Judge Michael Behrens said the company took an ad hoc approach to LPG forklift operations in the area, and that earlier indications that the practice was inherently dangerous had been ignored. He found that forbidding gas forklifts in the area was a practicable step that could reasonably have been taken, along with adequate instruction, warning notices and monitoring of carbon monoxide levels. 
Industry:
Manufacturing
Sub-Industry:
Food, Beverage and Tobacco
Risk:
Confined space
Hazardous substance exposure
Harm:
Injury
Penalty Amount:
$143000.00
Reparation Amount:
$33000.00
Appeared in Safeguard issue 110

Judgment Text

NOTES OF JUDGE M J BEHRENS QC ON SENTENCING 
Judge M J Behrens QC
[1]
The defendant company has been convicted on eleven charges which are all the same and boil down to the company failing to take practicable steps to ensure the safety of employees, in that they were not exposed to the hazard of carbon monoxide fumes. 
[2]
The exposure took place over the 18/19 June 2006. None of the informants suffered permanent injury. The defendant is a first offender, and I am satisfied that since the events of the 18/19 June 2006 has taken remedial steps, which I am told means this will not happen again as far as the defendant company is concerned. 
[3]
The circumstances of the events, however, show that for a very long comparative period, an employee of the company was able to drive an LPG forklift in an enclosed space, all of the time emitting carbon monoxide fumes. That happened on 19 June 2006, and I am satisfied that was contributed to by similar but in time terms unknown activity on 18 June 2006. 
[4]
I think it is particularly important that there was no-one in a position of knowledge and responsibility who was able to interrupt the work of the LPG forklift particularly on 19 June 2006. That work and use went on for between 5 — 6 hours, all that time building up carbon monoxide in the area and ultimately contributing to the poisoning of eleven people, including the driver of the forklift. 
[5]
I am satisfied too that the company's approach to the problem of LPG forklifts driving inside the formfill area as stated in the decision, was on an ad hoc basis. What comes across to me is that if someone who was aware of the danger saw an LPG forklift driving within the area, he/she might take it up with the driver or someone else. It is interesting that apparently in an incident referred to by Mr Prouting in his evidence, an employee on the work floor complained about the use of a machine in the tunnel and Mr Prouting said he took it up with the driver, and ordered him out, told him to get an electric forklift. 
[6]
It seems, as I have said, the warning indications about a practice that was inherently dangerous were ignored by those who should have known better. 
[7]
I take into account the graphic evidence from the employees who were affected, that when they began to feel sick, get headaches, faint, they did not know the reason for this and it seems as though it was not until near the end of that 5 — 6 hour period that someone suggested it might have been carbon monoxide from the LPG forklift that was causing the problem. 
[8]
Those are the matters I take into account when I am considering the gravity of what happened here. I will impose fines, and I will impose reparation. When I fix the fines I proceed on a totality basis. I take into account there are eleven informations and that the total of the fine should be spread amongst those eleven informations. Similarly when I fix reparation, I take account that there eleven people to receive reparation. 
[9]
It is surprising to me that when the new formfill was built only a short time before this incident there was apparently no provision made for ventilation, apart from the doors that were built into the building. There was no carbon monoxide monitoring system, nor any alarm that might have shown carbon monoxide levels had risen above what was acceptable or safe. It might be argued in reply to that that the system was such that there would be no carbon monoxide because no LPG operated forklifts would be in those areas, but what is quite clear is that they were. It seems it would have been a practical thing despite the safety operating procedures that were in force to consider the provision of carbon monoxide monitoring, or an alarm because of the particular pernicious nature of carbon monoxide, being odourless, but that is a matter for the company. 
[10]
In the circumstances, I agree the fine must “bite” and this is not an approach that allows the company simply to put it down to experience and move on. 
[11]
Therefore in respect of each information, the company is fined $10,000, and in each case there will be reparation of $3,000 for emotional harm to be paid to the person named in the information. 
[12]
There will be costs of $150 in respect of each information. 

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