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Safeguard OSH Solutions - Thomson Reuters

Safeguard OSH Solutions - Thomson Reuters



OSH Tracker

Department of Labour v Street Smart Ltd (DC, 18/02/08)

OSH Tracker

Defendant:
Street Smart Ltd
The HSE Act requires employers to protect workers from their own stupidity, according to a district court judge. 
Imposing a $55,000 fine on Street Smart Ltd for a s15 charge relating to the death of a 12-year-old boy who fell from one of its rubbish trucks, Judge Tom Everitt rejected defence claims that the boy’s father, who was driving the truck, was partially responsible for what occurred ( Thames DC, February 18). 
“The history of this [HSE] legislation is one of protecting employees from their own stupidity. 
“The company cannot escape liability. [It] must ensure that employees cannot circumvent the act and its protocols and requirements, and must take every step to envisage employees so doing.” 
The prosecution followed the death of the boy in January 2007 when he slipped from the unguarded rear footboard of the moving truck as he attempted to help with a kerbside rubbish collection.. 
Culpability, the judge said, was high because the company continued to use the truck, despite the danger of having the footboard directly in front of the rear wheel, and also because it had turned a blind eye to the driver taking his son with him. 
The boy’s father had twice been told that his son must not help with collections, but Judge Everitt suggested that by failing to suspend him for disobedience after a previous incident, the company had effectively condoned the situation. 
No order of reparations was made because a restorative justice conference had agreed on a payment of $60,000 for the boy’s family. 
Industry:
Personal and Other Services
Sub-Industry:
Other Services
Risk:
Vehicle - road (eg truck, car, bus)
Fall at same level
Struck by moving object
Harm:
Death
Penalty Amount:
$55000.00
Reparation Amount:
$0.00
Appeared in Safeguard issue 110

Judgment Text

NOTES OF JUDGE T H EVERITT ON SENTENCING 
Judge T H Everitt
[1]
Street Smart Limited has pleaded guilty to one charge laid under the provisions of the Health and Safety in Employment Act 1992, information ending 132. 
[2]
On or about 19 January 2007 at King Street Paeroa, being an employer failed to take all practicable steps to ensure that another person, namely Summer Charles Lee Huia was not harmed by the action of it's employee, namely Dallas Alfred Huia, while at work, in respect of kerbside refuse collection using a truck, registration number WY6875. 
[3]
The information was first before the Court on 23 August 2007 and on 30 October 3007 the company pleaded guilty and sentencing was adjourned until this year. It is now the sentencing date. The company is represented by Mr Beadle and the informant Paul West is represented by Mr Houliston. Both counsel have filed in advance helpful submissions as to their respective positions on sentence, and I have had the opportunity of reading those, although I am a visiting Judge from out of the area. 
[4]
Both counsel had an opportunity to advance any further particular matters arising from those submissions or indeed arising from comments that I have made from time to time in my analysis of the situation, attempting to understand factors. For example, there was a suggestion in the summary of facts, paragraph 6, that this offending truck was used to permit another vehicle to be repaired and to reduce the number of rental trucks needed over this period. Both counsel could not support that reading of the summary of facts and it would appear at first I imagined it but after some research it was located and counsel do acknowledge it is in the summary of facts but put a different slant on it. The reason basically was this truck was put into the pool, so Mr Beadle tells me, and not to avoid the expense of hiring a replacement rental truck. What it is in the summary of facts for I do not know. 
[5]
I am somewhat uneasy about this case because it has run to a pattern which seems to be emerging and Mr Houliston has, in his submission, referred to this by an analysis of the sentencing levels pertaining in the Courts since the amendment, increasing the maximum penalty from $50,000 to $250,000 and I have some sympathy for that view, particularly in relation to paragraphs 50 onwards. With reference to s 8(e) of the Sentencing Act relating to consistency of the appropriate sentencing levels, of course one has to read that quite carefully because s 8(e) says; 
“ … the Court must take into account the general desirability consistency with appropriate sentencing levels and other means of dealing with offenders in respect of similar offenders committing similar offences in similar circumstances. ”
[6]
The wide variety of offending under the Health & Safety in Employment Act make application 8(e) somewhat problematical because no case is similar. A person being paralysed, still alive, a person being crushed under the wheels of a truck, dead. There is no similarity at all in that situation. The levels of culpability are all entirely different. Some are at the far end of the scale, others the other end of the scale and that presents problems of course for the Court also in following the Sentencing Act to fix the level of culpability which it must do, and it is no easy task. 
[7]
Mr Beadle, for example, for the company suggested it is medium range of culpability which would perhaps translate to 5 on a scale of 1 to 10, 10 being the highest. Mr Houliston would put it higher than that, 6 to 7. The difficulty in fixing the level of culpability for the purpose of discussion revolves around the use of language and I am attracted to the scale of 1 to 10 because it is quite clear, whereas language can be difficult to follow. For example, the use of the words “gross carelessness” or “gross negligence” is not attractive to the Higher Courts, particularly Justice Tipping in his analysis in McLaren Transport Ltd v Somerville [1996] 3 NZLR 424Has Cases Citing which are not known to be negative[Green]  case where he preferred a term such as “very bad”. That was not a health and safety prosecution as such. It was a civil claim for exemplary damages, but it illustrates the difficulty of expressing the level of culpability in words. Does one say “very, very, very bad” or something that is for example at the higher levels, 8, 7.5. 
[8]
In this particular case I have come to the conclusion that the culpability of the company was at the higher levels of culpability. I would have adopted a higher level than Mr Houliston and I suggest that 7.5 on the scale of 1 to 10 would be appropriate, and I say this for two reasons, culpability was aggravated in this case by the fact that firstly, the company knowingly put on the road a defective vehicle in a dangerous condition, for the use of employees. 
[9]
Secondly, the company condoned or turned a blind eye to the fact that a child was on the vehicle and knew that that child had been carrying out work activities whilst not employed. Those are the two aggravating features which put the culpability level of this defendant at the higher level. Had it been one of the runners who fell off the truck culpability would be lower. This involved a child, and knowingly so and something ought to be done in all industry to prevent children from riding with their fathers in dangerous vehicles, such as tractors, logging trucks, rubbish collection vehicles, where there is inherent danger in the activities of what is going on. 
[10]
The next point which affects culpability is a somewhat vague attempt, which I do not accept, of the company to say well, we accept responsibility, yes we did wrong, but the driver of the vehicle was the boy's father and he must take some responsibility. I do not accept that. The history of this legislation is, right from the start, one of protecting employees from their own stupidity and wilful neglect of the provisions of the Act. The case involving Perrium Wool Growers in Central Otago where the shearing gang had children in the sheds and one child inevitably got its arm caught in a conveyer belt. Regardless, the employer must be responsible, it is its obligation to ensure there are no children allowed anywhere near the danger. The company failed to do that and wishes to point the finger, to a degree, although not entirely clearly, it is said by Mr Beadle, at the driver. Persons need to be protected from themselves. There are numerous cases under this legislation where human nature being what it is employees take shortcuts. They remove, in obvious cases, simple guards to saws to make it easier to cut, they ignore standing regulations or codes of practice, as in this case, ignore those because it is convenient to do so, endangering themselves and others. 
[11]
Another case that comes to mind involved employees who determined that they wanted to finish their shift, the machine was playing up, they were not going to wait around for the company mechanic employed and the engineer of the company to come and fix the machine, the employee went into the shed of the engineer, took out a three foot long spanner and decided he would fix the machine, with that the inevitable happened, the spanner connected with the machine and the man was flung round like a rag doll at the end of the spanner. The company cannot escape liability for those actions. The company must ensure that employees cannot circumvent the Act and its protocols and requirements, and ought to and must take every step to envisage employees so doing. 
[12]
The facts are not greatly in dispute. This truck was put on the road for rubbish collection on 19 January 2007. The truck was a hazard potentially because it was not constructed for the purpose that it was used for. The photographs make it absolutely plain that for all to see there was a dangerous state of affairs, there was a step which was unguarded, a person falling off the step, and that can be shown in photograph 2 “close up of step”, could fall under the rear wheels because there was nothing to stop them falling under the rear wheels. 
[13]
On this particular day an unfortunate young Summers wanting to help his dad, grabbed a bag, grabbed hold of the rail, (shown there) with his right hand, the track lurched, the inevitable happened, he slipped, fell under the rear wheels of the truck as it was moving along and was killed. The simple precautions taken afterwards are shown in the photographs, which have not been given a number, but I have got them on the file, there are three and it shows an additional railing, it shows the wide platform step has been removed and replaced with something akin to a ladder upon which people cannot ride. There is a sign also to that effect, “no standing on steps”. Importantly the gap that is shown in the original truck photographs between the big platform and step, where apparently a lifting device had been removed, that gap has now been filled in with steel boxing and a shelf. More importantly, as I say, the step has been removed with a ladder and safety rails have been built all along the side of the truck so that if a person did happen to fall off the ladder they would not be able to go under the wheels of the truck. 
[14]
The young lad, Summers, should not have been in the truck. It was against company policy. The lad's father, Mr Huia, had been told on two occasions the lad was not to operate as a runner for obvious reasons. Small persons, a 12 year old, do not have the stature, strength or ability to handle difficulties that normal runners perhaps ought to. The company should have taken further steps by suspending Mr Huia for disobedience of the code but, in my view, it did not take that step because it condoned or turned a blind eye to children working with dads in the school holidays, in the sense that they were in the track, rather than being left to pursue other pursuits that 12 year olds do in school holidays. I think the Labour Department, whoever, needs to do something about this rapidly. The number of logging trucks and other heavy dangerous vehicles that one sees on the road with children in the cab astounds me. The level of culpability, as I say I fix high for those two reasons, obviously the truck's dangerous condition and the permitting by turning a blind eye, as Mr Beadle says, by a relatively junior management person to the child being in or on the truck. 
[15]
Whilst it is tempting to point the finger at the father, it is my view that the culpability of the company is complete, without the actions of the father, in taking the son along and allowing him to be a runner that morning for a while. 
[16]
The Court accepts the submissions of counsel in that the appropriate manner of dealing with the charge is to follow the principles of the De Spa case that is now enshrined in the Act, taking into account those features such as the plea of guilty, the remorse of the company, its record which is not bad record, it does have a previous conviction for an employees leg being damaged, crushed some years ago, two or three years ago. It has taken steps to modify the truck to make it safe. It has attended a restorative justice conference where the company accepted responsibility, where emotions were exchanged. Present at that restorative justice conference was the boy's mother, Mrs Huia and the boy's father. Mrs Huia was able to express all of those feelings and emotions that a mother would have, having lost a son in those circumstances. 
[17]
At that restorative justice conference, I assume although it is not clear, that Mrs Huia's views were properly expressed. The report from the restorative justice conference is somewhat different in its content of course, than the victim impact statement, where the rawness of Mrs Huia's views are clearly stated. 
[18]
The company and its lawyer and Mrs Huia and her lawyer, are able to, subject to the Court's approval, come up with some reparation for financial losses, not covered by Accident Compensation and for the family as a victim to receive compensation for emotional harm and trauma, and that is a total of $60,000.00. It is proposed that it be held in Mr Birdsey's trust account upon trust which Mr Birdsey can arrange for those children, named in the restorative justice conference, for their benefit. I have no objection to that. It would seem to me that an informal trust of that nature offered through the Court, that a trust account could be quite appropriate rather than have formal trust deeds and the like drawn up, but I will leave that to Mr Birdsey and Mr Beadle will no doubt have some input into it, but mainly Mr Birdsey to fix that. 
[19]
In considering that aspect of reparation two matters have arisen. Firstly, whether the full weight of that should be brought into account in fixing the overall penalty, because the company carries insurance for the payment of reparation. On one hand Mr Beadle's argument is the fact the company is insured for it is irrelevant and should not diminish the full weight when it is taken into account. The other view is that it is relevant because, as Mr Houliston argues, if an insurance company pays then it is not coming out of the pocket of the offender and the deterrent aspect of reparation is therefore reduced. Interesting to compare but it is not possible. It is unlawful to insure for payment of fines. No doubt the reason for that is so that fines will hurt and that offenders cannot hide behind insurance companies and get them to pay the fines. It seems strange that large amounts of reparation can be covered by insurance and deducted, if I follow Mr Beadle's argument, entirely from the appropriate level of fine. 
[20]
The appropriate level of fine, in my view, needs to start with a fixing of a staring point where here we have the worst scenario possible and that is it caused the death of an innocent 12 year old naive boy, who was in the holidays with his father on his truck. The actions of the company through the driver and the company's junior officer who permitted this, have to be weighed in the balance also. The aggravating features have already been mentioned. 
[21]
The mitigating features are, as I have mentioned also, the plea of guilty which came in October, and that has been the cause of comment by the victim's mother, who believed it came rather late in the piece, that is her view of it. It certainly did not come at first blush, but as everyone sitting in the Courts knows, it takes an awful long time nowadays to get all of the disclosure and facts out so that counsel can advise properly on the factors. I do not attach any adverse weight to the plea of guilty coming in October. 
[22]
The attendance at the restorative justice conference, I have mentioned that, and Mr Beadle has asked me to accept that the victim's family received benefit from attending that conference. I am prepared to accept that. It is not easy to quantify what benefit a person does have who is a victim at those conferences. They are usually conducted in good faith, there are facilitators, there is no pressure on anyone to attend or say anything. I just hope that Mrs Huia did find it of significant benefit to her, because I am told she did. The offer to make amends is also a factor I take into account and coming up with the offer to pay $60,000 subject to the Court's approving that. I have already said that I approve that approach. 
[23]
I return to a comment I made earlier, and that is that I am uneasy about the courses taken in some of these cases. Where, from a relatively high starting point of say $100,000 with up to a third off or more for a plea of guilty and a further deduction for reparation, an insignificant fine can result, $10,000 - $15,000 - $20,000 - $30,000 for the death of a person, or maiming, and it seems to me that a pattern has emerged which has been isolated by Mr Houliston, that immediately a form of damage control is entered into, Mr Beadle does not accept this, whereby negotiations take place, subject to a plea of guilty, attending a restorative justice conference, hitting the insurance company on side, arriving at some kind of figure that might satisfy the victims, arranging payment of that subject to the Court's approval and then saying all of that must be deducted from the starting point. It is really defeating the purpose of Parliament increasing the fine level from $50,000 to $250,000 and I think the starting points are too low. Particularly where there is a case of death, where there is a case of aggravated culpability as in this case that I have found on the facts, that I am not disagreed with. My finding might be disagreed with but the facts are not. 
[24]
Under s 10 the Court must take into account offers or agreement, response or measure to make amends. Now, I have done that. The offer of reparation of $60,000 is not insignificant, although against that must be tempered the fact that the insurance company is paying that out. Under s 14 in determining the amount of the fine, the Court must take into account, in addition to those matters in s 7 to 10 of the Sentencing Act, the financial capacity of the offender. No one has suggested that this company is unable to pay reparation or a substantial fine. Sub-section 2 applies. Sub section 2 says that ss 1 applies where the taking into account the financial capacity of the offender has the effect of increasing or reducing the amount of the fine. In appropriate cases where a person can pay the fine can be increased to the appropriate level. Other cases where a person cannot pay the fine can be decreased. Sub section 4, if a Court imposes a fine in addition to its sentence of reparation it must, in fixing the amount of the fine, take into account the amount payable under the sentence of reparation. 
[25]
I accept the submissions of the informant in this regard that the Court, and it would be false to suggest, the Court should not attach any weight to the fact that the reparation is not being paid by the company, but is being paid by its insurance company and that falls, in my view, maybe Judge Harding to the contrary, falls within ss 4 and does not require Parliament to make any change to the Act the question of emphasis in interpretation. In my view the company must be called to account for what I regard as a very bad case of carelessness or negligence in the discharge of its obligations under the Act and its conduct must be denounced. An obviously dangerous vehicle must not be permitted to be used by employees for the purpose of their occupation. The fact that a boy fell off the truck, under the wheels, is significant but any of the runners employed that day could have fallen off that platform under the wheels, and it was such an easy matter to see and to rectify. 
[26]
This is not a case where close observation would not reveal necessarily the hazard as in the case where the line company was replacing the line and it was not easy to see that there could be contact with another line nearby and an electrocution took place. It is not that case at all. So, I believe there is a strong aspect of calling the company to account and a general deterrent to other companies who take their obligations lightly. Whilst I acknowledge the company says, yes we accept responsibility and we have rectified our default, we are going to pay a substantial sum of money, we have apologised and attended restorative justice, I take all those facts into account and, in my view, as I say returning to the scale which I find helpful, and it is not in any way a rigorously applied scale or mathematical formula, but taking into account those matters in mitigation I believe that this falls about 7. Not the worst case of its kind, certainly not medium range as Mr Beadle would have me believe. I believe it could be higher but as the informant is not seeking any higher than 7, which I regard as a very bad case of negligence, I believe that the fine should be appropriately fixed in relation to the maximum of $250,000.00, and in doing so in my view a fine of something in the order of $175,000.00 would be an appropriate starting point. 
[27]
Taking both counsel's views into account as to a discount for a plea of guilty, I am prepared to take off from that amount something in the order of $60,000.00. I question that, again I am uneasy about that level of consent by the informant. In my view, on the bare facts put before me, there was little defence and it is traditional and always has been the case to give greater emphasis to a plea of guilty where there could be a defence, where the person has chosen not to pursue that line for various reasons. But, as I say, I am going to allow what counsel have urged and that is about a third. I have some reservations again, as I say, about the sum of $60,000.00 also being taken off completely, as being brought into account. It must be brought into account, the sentence of reparation. I have approved it, it has been arrived at at a conference with the victim's family assisted by counsel, Mr Birdsey, and accordingly I am going to allow another $60,000.00 be taken off that amount. 
[28]
That leaves a fine in the order of $55,000.00 which I believe is an appropriate fine to meet the purposes and principles of sentencing, the deterrent aspect and the high level of culpability. To reduce it any further than that would not acknowledge the significance of the offending. The suggestion being that a fine of that magnitude would be more than the current levels of fines, I do not accept that. No one has put before me a case where the facts are similar, where the circumstances are similar, where the offender is similar. Indeed, this is a somewhat unusual case, as often they all are unusual cases because the facts of human life are so varied. 
[29]
Accordingly, the company is convicted and ordered to pay reparation of $60,000.00 to the solicitor for the victims, who is to hold that sum upon trust for the various named victims. Mr Birdsey to apply for further directions. In addition the company is fined the sum of $55,000.00 and solicitor's fee $250.00 is ordered and also the Court costs of $130.00. 
[30]
Mr Beadle has drawn to my attention that perhaps I have made it by way of an order for reparation whereas it is more in the nature of an agreement to make amends and that agreement is contained in letters in January 2008 between Phillips Fox and Mr Birdsey's firm. Accordingly, I merely acknowledge that in fixing the fine I have taken into account the agreement to make amends are approved in the sense it may pay to Mr Birdsey's trust account on trust for Stevie, Natalia, and Brooklyn, upon such terms for their benefit with leave to apply for any further directions that may be necessary. 

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