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Safeguard OSH Solutions - Thomson Reuters

Safeguard OSH Solutions - Thomson Reuters



OSH Tracker

Department of Labour v Textile Bonding Ltd (DC, 11/04/08)

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:
$15,000 fine plus Court costs of $130 and solicitor's costs of$250
Mitigating Factors:
Early guilty plea
Efforts of Directors of company to see victim after accident and all work put in that regard
Lack of previous convictions
Financial situation

OSH Tracker

Defendant:
Textile Bonding Ltd
TEXTILE BONDING LTD was fined $15,000 under s6 after a worker’s hand was crushed in a mangle. The injured worker was quality checking a length of fabric as it travelled from a water bath to the mangle. When he attempted to straighten a folded edge, his left hand became trapped in the mangle. The injuries caused total disablement of his hand, but no reparations were ordered because he had already received $20,000 from the company following a restorative justice conference ( Manukau DC, April 11). 
Industry:
Manufacturing
Sub-Industry:
Textile, Clothing, Footwear and Leather Manufacturing
Risk:
Machinery (trapped, crushed, cuts)
Harm:
Injury
Penalty Amount:
$15000.00
Reparation Amount:
$0.00
Appeared in Safeguard issue 111

Judgment Text

NOTES OF JUDGE J D HOLE ON SENTENCING 
Judge J D Hole
[1]
The defendant Textile Bonding Limited is charged that on or about the 5th of June 2007 that being an employer failed to take all practicable steps to ensure the safety of its employee Mathew Davidson, in that it failed to take all practicable steps to ensure that Mathew Davidson was not exposed to the in running nip of the pad mangle on line two. The defendant company coats and laminates home furnishing fabrics. As I understand it, this involves the operation of rolling machinery and it is well known that machinery that contains moving and rolling parts by its very nature will pose a hazard to those people using it. As Ms Carr pointed out quite rightly, since the 1890s there has been legislation in New Zealand requiring that moving parts of machinery be guarded. 
[2]
In this particular instance the victim Mr Davidson was feeding material through a number of rollers and the water solution in a water bath to remove impurities. The material was then fed around and entered a pad mangle consisting of two rollers where most of the water was squeezed from the material. Mr Davidson understood that his job was to include attending to the faults in the fabric by removing loose threads, eliminating creases in the fabric and to stop the machine where tears in the fabric were located. 
[3]
Where the fabric entered the water bath it travelled underneath a roller and up out the other side of the water bath towards the pad mangle. Just below this mangle is a splash back which prevents the water as it is being squeezed out of the fabric from splashing over the machine. As the fabric came out of the water bath Mr Davidson noted that the edge of the fabric had rolled over. In attempting to unfold the edge of the fabric before it went through the mangle, he used his right hand to unfold the fabric as after it came around the roller, at the same time holding the fabric flat with his left hand as it moved towards the mangle. The injuries that he sustained occurred when his left hand travelled up with the fabric underneath the splash back and entered into the running nip area of the rollers trapping his hands. 
[4]
Effectively he sustained severe injuries to I think four fingers of his hand. The result of the surgical procedures have meant that his left hand effectively contains no fingers and has ended up in the form of like a closed fist as I understand it. He certainly cannot use it in a manipulative way at all. On top of that as a result of this and the surgical and remedial procedures which were undertaken, he sustained I think in the accident itself a dislocated shoulder but in any event his shoulder then became frozen which has inhibited its movement to quite a significant extent. 
[5]
The accident has been very traumatic for Mr Davidson and he was obviously an active person. He has not been able to work to date although there is some prospect that he may be able to drive fork lift vehicles in the future. Indeed the defendant company has indicated that it might be able to offer him work in that capacity some time in the future, subject of course to what I have to say about the company itself. There has been a Restorative Justice Conference which according to its minutes which seemed to have been a very productive conference. The end result of the conference was that the company offered and ultimately Mr Davidson accepted a sum of $20,000 by way of compensation which is intended to be reparation. That sum of money has been paid. The deficiencies found by the inspectors from the informant were first of all that the running nip area of the rollers which trapped his hands was not guarded and indeed could have been guarded. In addition to that, the water bath was supported by like a timber. No one had asked the engineer to repair it, he did not believe it was a problem but had the normal hydraulic system been working, the water bath would have been sitting higher than it was at the time of the accident and thus the access to the in running nips would have been significantly reduced. 
[6]
The defendant company has pleaded guilty to the charge at the earliest opportunity. I have the difficult task of assessing an appropriate penalty. The difficulty in assessing a penalty as is always the difficulty in cases like this, is that there is no finite way of going about the task. The Court of Appeal in R v Taueki & Otrs [2005] 3 NZLR 372Has partially negative history or cases citing, but has not been reversed or overruled[Yellow]  has urged the Courts in sentencing to identify a starting point. That starting point is essentially to assess the gravity of the offending and one of the factors involved in determining gravity is culpability. Culpability relates to such matters as intent motive foreseeability and circumstances that bear on an offender's blame worthiness. As Ms Carr stated, in the health and safety context the failure to control a glaringly obvious hazard is graver than the failure to control a more obscured one. 
[7]
Ms Carr in her submissions has adopted Hall's Sentencing Law and Practise [2.2.2] by pointing out that gravity of the offending involves both harm and culpability. In the health and safety context especially where reparation is already being determined as here, I have reservations about the inclusion of harm in assessing gravity. I accept potential for harm is undoubtedly a component and I accept that an accident causing harm is undoubtedly a component. I am not so sure that the extent of the harm is relevant. 
[8]
Turning to this case, in terms of culpability I accept that the defendant had a number of in running nips in the machinery which had operated. They were guarded or most of them were guarded, however in this particular case it is clear that the hazard was not visible. Because of that the defendant company and its offices did not turn its mind to preventing access to the relevant and running nip. Thus the in running nip was accessible for the reasons I have mentioned, but it was not visible. This point is clearly made in the minutes to the Restorative Justice Conference. The victim Mr Davidson pointed out that he was totally unaware of the hazard and the Director of the company who was talking with him at that Conference indicated that he too was unaware of it. 
[9]
In those circumstances it seems to me that this was a situation which comes within the comment made at paragraph 54 of Ms Carr's submissions that this was a failure to control an obscure hazard rather than a glaringly obvious one. Some support for that can also be obtained by reason of the fact that this was not a defendant who was unaware of his health and safety obligations, the engineer used to check these matters looking for hazards about once a month. Personnel were sent for training and I think so significantly in 30 years of operation this company had never had a similar accident. 
[10]
The hydraulic issue probably was not foreseen as a hazard either and the relevance of that is that it has increased the accessibility to the hazard rather than anything else. However, nevertheless it was something that probably should have been addressed and was not. 
[11]
I accept the prosecution's submissions that too have guarded the machine would have been something that could have been done readily and indeed remedial action was ultimately taken in that regard. The prosecution through Ms Carr has identified a starting point of $90,000. In my view that is too high. It includes the actual harm that has occurred which in my view it should not, because I consider that what we are talking about is the assessment of a fine not an overall sentence. I consider that it is always too high because of the invisibility of the hazard. When one looks at the various provisions of the Sentencing Act in this regard, starting with s 7, it seems to me that in assessing the starting point there is no real need to hold this offender accountable. It would be a different matter if this offender had a history of offending in similar ways. Likewise the sense of responsibility. This defendant company plainly recognises its responsibility and I think it is very significant that both its Directors are here today, that indicates how seriously it regards this matter. Denunciation, of course. Deterrence is always a factor but very hard to assess. 
[12]
Turning then s 8 of the Act, I have talked about gravity which includes seriousness. The other factor that it is suggested that I should take into account in determining the starting point is the effect of the offending on the victim, I disagree. That would be appropriate in assessing the whole sentence but not simply the quantum of a fine. Turning again to culpability I should also take into account such matters as the training procedures adopted by the company, the way hazards were checked each month. The fact that personnel was sent for training. The fact that injuries such it has been sustained by employees have decreased in recent years and that there has never been a similar accident. 
[13]
Taking all those factors into account, I think that this was low level culpability. In assessing the starting point I should also take into account the maximum penalty applicable to this type of offence which is a fine of $250,000. If medium culpability including all the factors assessed by Ms Carr is $90,000 and Ms Carr frankly conceded that that figure was somewhat of a stab in the dark. And then plainly the starting point for low culpability must be significantly less than $90,000. The conclusion that I have reached is that the starting point in this case is about $50,000. From that I think there needs to be the following deductions. 
[14]
First, the early guilty plea. That indicates remorse on the part of the Directors of the company, it also has the effect of meaning that that does not have to be a lengthy hearing to determine liability. Traditionally, the deduction for these matters is about one third. In this case I think it should be greater, because I am conscious of the efforts of the Directors of the company made to see the victim Mr Davidson after the accident, and all the work which has been put in that regard. I therefore deduct from $50,000, $15,000. 
[15]
The next mitigating factor is the fact that there have been no previous convictions in 30 years of operation by the defendant company. Yes there had been the odd notice, obviously one would wish there were none but one has to also take into account the nature of the operation. I consider that a deduction for of $10,000 is appropriate in respect of the company's history. 
[16]
Finally, there is the financial position of the company. This is a company that has made a loss in trading over the last three years. It's accountant is concerned as to it's future to the extent that the accountant is worried that the company might be entering into a position where it is trading whilst insolvent. In those circumstances, I have made a further deduction of $10,000 to recognise those difficulties. According to my calculations then, that comes to a nett figure of $15,000. 
[17]
The next thing that I must do applying the two prong approach referred to in Department of Labour v Areva T & D New Zealand Limited unreported, 9 November 2005, Rotorua High Court is to stand back and look at the overall financial penalty to the company. That of course is required in terms of s 41(5) of the Act as well. If one takes a nominal reparation figure of $20,000 and adds to it the fine of $15,000 the total financial penalty is $35,000 which seems to me to accord overall with all the matters to which I have referred. I have referred to nominal reparation because there is no need for me to impose a sentence of reparation as the reparation has already been paid. 
[18]
Taking all those factors into account the company is convicted and fined $15,000, ordered to pay Court costs of $130 and solicitor's costs of $250. 
[19]
I appreciate that I have gone about this sentencing at a slightly different way from what is customary. I could have referred to all sorts of cases which I have not done but rather I have tried to accede to Ms Carr's request to try to actually show how the fine is calculated. 
[20]
I will attend to the exercise but I appreciate that and I doubt that I have really been of a huge amount of assistance because there are so many imponderables in the overall equation. But there can be a check done too. And that check is to go the other way and look at the sorts of nett fines that had been imposed in some other cases and then one can work backwards. There is no need for me to detail the various cases but the one in particular was referred to in the defendant's submissions which seem to me to be very much in line with the situation here and that was Department of Labour v Matamata Piako District Council. Thank you very much for your patience. 

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