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Safeguard OSH Solutions - Thomson Reuters

Safeguard OSH Solutions - Thomson Reuters



OSH Tracker

Health & Safety v Holcim (NZ) Ltd (DC, 03/04/08)

OSH Tracker

Defendant:
Holcim (New Zealand) ltd
A small extra job that went beyond the scope of the Job Hazard Analysis (JHA) cost a contractor his life and the company that engaged him a $55,000 penalty under the HSE Act. 
Holcim (New Zealand) Ltd was fined $20,000 under s18(1)(a) and ordered to pay $35,000 in reparations to the family of a welder who died when crushed beneath a limestone hopper ( Westport DC, April 2). The company had already put $50,000 into a trust fund for his widow and children. 
The victim was replacing troughs and rollers on a conveyor system carrying limestone between a hopper and a rock crusher at Holcim’s Westport quarry. 
The victim and a Holcim employee completed a JHA to identify all hazards before they began work, but later decided to move the hopper so the conveyor belt skirtings could be replaced. 
It was expected that no work would be done on the hopper until a crane was available, but the Holcim employee returned from a break to find the welder trapped beneath the hopper, which had tipped and come to rest on the back of his neck. He was pulled free but could not be resuscitated. 
Department of Labour investigations found that the victim had cut the hopper’s mounting bolts in an apparent attempt to speed up work. Unbeknown to him, however, the hopper held a build-up of limestone at one end, to reduce wear and tear from falling rocks, and this had caused it to tip when the bolts were cut. 
If the JHA had been updated when the decision to remove the hopper was made, it is likely the hazard would have been identified. 
Industry:
Manufacturing
Sub-Industry:
Non-Metallic Mineral Product Manufacturing
Risk:
Struck by falling object
Harm:
Death
Penalty Amount:
$55000.00
Reparation Amount:
$35000.00
Appeared in Safeguard issue 111

Judgment Text

NOTES ON SENTENCING OF JUDGE JJ MORAN 
Judge JJ Moran
[1]
Holcim New Zealand Limited (“Holcim”) has pleaded guilty to one charge under s 18(1)(a) and s 50(1)(a) of the Health and Safety and Employment Act 1992 (HSE Act). This charge relates to Holcim's failure to take all practicable steps to ensure the safety of Raymond Finn, an employee of its contractor, Brightwater Engineers Limited. Holcim is liable to a fine not exceeding $250,000 in respect of this charge. 
[2]
The HSE Act came into force on the 1st of April 1993 and its principle object is to promote the prevention of harm to all persons at work and other persons in or in the vicinity of a place of work. It was substantially amended in May 2003 to reflect the importance of health and safety in the workplace, increasing fines from $50,000 to a $250,000 maximum. 
[3]
Before commencing the sentencing I wish particularly to acknowledge the presence of Mrs Finn and members of the family and those from the management of Holcim because their attendance today reflects the seriousness with which they view this matter. I also wish to thank both counsel for the comprehensive, measured and helpful submissions that they have filed and to which they have spoken today. They are agreed as to the method which I should apply and the purposes and principles of sentencing which I should adopt. Their submissions differ in the area of quantum both as to the reparation which should be ordered and the fine which should be imposed. I will return to this. 
The Key Facts: 
[4]
In early July 2007 the belt on a return conveyor utilised by Holcim at its quarry at Cape Foulwind broke. The conveyor belt needed to be replaced and, contemporaneously with that, repair work Holcim determined was appropriate, namely the replacement of the trough sets and rollers on the return conveyor was to be undertaken. The conveyors in question run at right angles to each other transporting limestone run from the quarry. The conveyors convey the limestone to a crusher. At the junction point of the conveyors is located a hopper, or rock box, which played a critical role in this tragic event. 
[5]
On the morning of the 13th of July Mr Finn, a Brightwater Engineers Limited employee and contractor to Holcim, and Mr Lough, a Holcim employee, were carrying out maintenance and repair work on the return conveyor of the number three crusher plant. At approximately 11am Mr Rogers, Mr Slater - another Brightwater employee, and Mr Nelson - a Holcim employee, met at the crusher plant to discuss that work that was to be carried out by Mr Slater during the weekend that was to follow. Mr Rogers, who was supervising the repair project had a conversation with Mr Finn where they discussed the remaining work to be done and how the hopper would be removed. Mr Rogers advised Mr Finn that the crane would come in on the Monday to lift the hopper off. It was agreed that Mr Finn and Mr Lough would continue replacing troughs and rollers. Mr Rogers said that a direction was given to Mr Finn not to do any work on the hopper. 
[6]
Early that afternoon Mr Finn made a decision to carry out some work on the hopper, presumably in preparation for its removal on Monday. No other person was present at the time of the accident but it is assumed that Mr Finn placed himself under the hopper and cut the mounting bolts with the gas axe. As the last bolt was removed the limestone build up at the back of the hopper caused the back side to tip downwards and trapped Mr Finn between the hopper and a steel channel beneath it. Tragically he died. 
Sentencing Criteria: 
[7]
In accordance with s 51(a)(2) of the Act the Court must apply the Sentencing Act 2002 and I must have regard, firstly, to Sections 7 to 10 of that Act; secondly, to the requirements of s 35 and 40 of the Act relating to the financial capacity of the person to pay any fine or sentence for reparation that may be imposed; thirdly, the degree of harm, if any, that has occurred; fourthly, the safety record of the person which includes, but is not limited to, warnings and notices and the extent to which it shows any aggravating factor or may be absent; fifthly, whether the person has pleaded guilty, shown remorse, co-operated with the authorities in relation to the investigation or taken remedial action to prevent circumstances of the kind that led to the commission of the offence occurring in the future. 
[8]
In assessing penalty, which includes the sentence of reparation, it is necessary for me to take a two stage approach. Firstly, I must fix the amount of reparation that is properly payable and then determine whether an additional penalty by way of fine should be imposed. The amount of the reparation can be taken into account in assessing the quantum of that fine.1
| X |Footnote: 1
Department of Labour v Ferrier Woolscours (Canterbury) Ltd [2005] DCR 356Has Cases Citing which are not known to be negative[Green]  approved in Department of Labour v Areva T&D New Zealand Ltd 
 
Step 1 - The Sentence of Reparation: 
[9]
The starting point in considering this is s 32 of the Sentencing Act which directs the Court to consider a sentence of reparation in respect of any loss consequential on physical harm, so economic loss and emotional harm. 
[10]
As counsel have both said judges have repeatedly articulated the difficulty in assessing the sum payable for emotional harm in such tragic circumstances and I reiterate that. No figure can remedy the loss which has occurred but I must nevertheless undertake an assessment of that based on the purposes and principles of sentencing. In this case I have particular regard to the Victim Impact Statement and I have considered the Case Book which has been provided to me by counsel which gives some guidance on other cases as consistency in sentencing in such cases is desirable. 
[11]
I must also take into account the measures that Holcim has made to compensate Mr Finn's family. Significantly, Holcim and Mr Finn's employer, Brightwater Engineers Limited, have jointly established a trust fund for the benefit of Mr Finn's widow and children. They each contributed $50,000 to it and that will provide some measure of ongoing support and compensation to the family. In this respect Holcim has acted responsibly and, I have no doubt, genuinely. I am told that Holcim has been in continuous contact with Mr Finn's family and has made every effort to assist in any way possible, including meeting the costs of travel and accommodation where necessary on a number of occasions. 
Reparation: 
[12]
The informant submits that a sentence of reparation totalling $60,000 would be appropriate while counsel for Holcim submits that a payment in the region of $20,000 would be more appropriate given that Holcim has already contributed $50,000 to the family's trust and that Mrs Finn and the children have not suffered any economic loss consequent upon the offending. In my view, balancing all factors, the appropriate figure for reparation for emotional harm is $35,000. 
Step 2 - A Fine: 
[13]
I come now to assess the level of fine in respect of the offence, bearing in mind the reparation order which I have decided is appropriate. The informant seeks a fine in the sum of $35,000 and, while accepting that consistency in sentencing is required under s 8(e) of the Act, submits that the section also requires consistency in appropriate sentencing levels and that currently they are not being imposed by the court. Again I have helpfully been referred to relevant case law in this regard.2
| X |Footnote: 2
Department of Labour v Concrete and Infrastructure Ltd trading as Golden Bay Cement (unreported, 10 August 2007, Whangarei Registry, CRI 2007-488-000001, Gendall J) 
 
[14]
Counsel for the defendant submits that $12,000 more appropriately reflects the fine and the sentencing criteria for which I must have regard. 
[15]
In the leading decision of the Department of Labour v De Spa the Court emphasised the need for penalties to be tailored to particular cases in the particular circumstances upon which they turn. In this instance the informant suggests that Holcim's culpability is in the medium range but I consider that it falls at the lower end of the scale. There is no doubt, and Holcim accepts, that the potential hazards associated with removing the hopper were not identified by Holcim as part of the job hazard analysis that had been completed but that was because it was not updated when the work changed to require the removal of the hopper. Failure to ensure that those JHA procedures were being strictly adhered to may have increased the likelihood of harm to workers and, in particular, to Mr Finn. 
[16]
Certainly had that steps been taken more stringently then it would have identified the specific tasks that each employee was to undertake and may have prevented Mr Finn determining that he could take others tasks. If he had appreciated just what could have occurred then he would never have taken the steps that he did. 
[17]
There was also, as Mr Hargreaves outlined, a number of other steps that could have been taken, including some formal training of staff in relation to this procedure. However, there is no challenge to Mr Rogers account that there had been a discussion and a decision to deal with the hopper on Monday. 
[18]
Mr Finn was a highly regarded and experienced welder. It seems that he was actively involved in hazard identification and clearly, and tragically, he did not identify the hazard that existed with the build up of limestone at the back of the hopper. It seems that he had worked on similar crusher systems beforehand. I accept that this was not an easily foreseeable hazard and nor, indeed, was it foreseen. 
[19]
Mr Finn took steps, possibly to assist others on the Monday by readying the hopper and removing the mounting bolts. In doing so he must have considered that the hopper would have been stable over the weekend. I accept Mr Young's submission that with Mr Finn's level of experience and skill and his familiarity with this type of equipment and the fact that he was clearly wrong in this regard illustrates just how difficult it was for Holcim to identify the hazard. While intending no criticism whatsoever of Mr Finn he made a fatal error of judgment in beginning work that he was not instructed to do and in relation to the stability of the hopper. However, I must also have regard to the harm that resulted and, in this case, it was tragically ultimate. 
[20]
Mr Hargreaves referred in his written submissions for the need for the Court to denounce and deter Holcim and said they were particularly important purposes and principles of sentencing because the Act is a public welfare statute designed to promote prevention of harm to people at work and those affected by it. By way of a general proposition that is clearly correct, however, in this case, I take into account Holcim's safety record, both on an international and national basis, where they are operating in areas involving heavy machinery and inherent dangers. It has comprehensive safety measures in place that have led to a steady reduction in workplace accidents and injuries over the last 15 years. 
[21]
By way of mitigation I also take into account the early guilty plea and the remorse shown. Holcim has co-operated from the outset with the authorities to address matters relating to this tragedy and to ensure that there is never a repetition of it. Holcim has taken a range of steps to prevent the recurrence of similar events which have been outlined at length in the written submissions which include a review of the job hazard analysis, introducing safety alerts and working alone policies to name but a few. In my view the most appropriate principle in sentencing Holcim in relation to the aspect of fine is accountability. 
[22]
Taking into account all of those factors and given Holcim's low culpability but, nevertheless recognising the seriousness of the harm that occurred, I consider the appropriate starting point for a fine at $75,000. I discount that by 50% for all of those factors. I must then take into account a reconciliation exercise because when imposing a fine s 40(4) of the Sentencing Act directs that I must take into account the sentence of reparation that is ordered. In my view when doing so the fine should be reduced to $20,000 and, therefore, the defendant is sentenced as follows: 
Reparation 
$35,000 
Fine 
$20,000 
Total 
$55,000 
Solicitors fee of $250.00 is ordered. 


Department of Labour v Ferrier Woolscours (Canterbury) Ltd [2005] DCR 356Has Cases Citing which are not known to be negative[Green]  approved in Department of Labour v Areva T&D New Zealand Ltd 
Department of Labour v Concrete and Infrastructure Ltd trading as Golden Bay Cement (unreported, 10 August 2007, Whangarei Registry, CRI 2007-488-000001, Gendall J) 

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