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OSH Tracker

Department of Labour v Smith (DC, 07/05/09)

OSH Tracker

Defendant:
Isaac Nasawaqa Smith
Isaac Nasawaqa Smith was fined $1000 under sections 17, 18 of the HSE Act after a man he engaged to work with him fell through a skylight. Smith, a self-employed roofing contractor, had been engaged to replace part of the roof of a commercial premises. Skylights were identified as a falling hazard, but no measures were implemented to provide or install adequate barriers or protection. Nor was the roof inspected from the underside for structural soundness and no fall protection was installed. The victim was warned to stay away from the skylights but fell about eight metres through one onto a concrete floor. He had not been wearing any fall arrest equipment and sustained serious injuries including multiple fractures to his skull and spine, bleeding in his brain and bilateral contusions to his lungs ( Auckland DC, May 7). 
Industry:
Construction
Sub-Industry:
Construction Trade Services
Risk:
Fall from height
Harm:
Injury
Penalty Amount:
$1000.00
Reparation Amount:
$0.00
Appeared in Safeguard issue 118

Judgment Text

JUDGMENT OF JUDGE E P PAUL [ON SENTENCING] 
Judge E P Paul
[1]
The defendant, Isaac Nasawaqa Smith, faces two charges under s 18(1)(b) and 17 of the Health and Safety in Employment Act 1992 (“the Act”). 
[2]
Those charges are that on 29 May 2008 being a principal did fail to take all practicable steps to ensure that a contractor, namely Ivan Kolevatov, was not harmed while doing roofing work he was engaged to do. Furthermore being a self-employed person did fail to take all practicable steps to ensure that no action or inaction of his, while undertaking the roofing work, harmed himself. 
[3]
The facts in this case are that the defendant was a self-employed roofing contractor. He was engaged by the head contractor, Cowperthwaite Roofing Limited, to replace part of a roof of commercial premises in Sandringham with new roofing iron. The defendant engaged Mr Kolevatov to work with him. 
[4]
The contract manager for Cowperthwaite Roofing Limited met with the defendant when work commenced and the skylights on the roof were identified as a fall hazard. Mr Smith was warned to stay away from the west side of the roof, where the skylights were, as much as possible. When Mr Kolevatov started on the site, Mr Smith likewise warned him to stay away from the skylights. 
[5]
Mr Smith is an experienced roofing contractor with the appropriate skills and expertise for the job. Mr Kolevatov was trained as an engineer in Russia. He had done some roofing work in New Zealand in the past. He has his own safety harness but did not wear it on the job. Mr Kolevatov was engaged after another worker engaged by Mr Smith could not complete the job. 
[6]
On 29 May 2008, while both Mr Smith and Mr Kolevatov were working on the roof, Mr Kolevatov fell approximately 8 metres through an unprotected skylight to the concrete floor below. As a result Mr Kolevatov sustained serious injuries, including multiple fractures to his skull and his spine, bleeding in his brain and bilateral contusions to his lungs. 
[7]
Practical steps that should have been taken by the defendant to ensure both himself and Mr Kolevatov were not exposed to harm, but were not taken, included discussing and planning the work with the head contract manager — Mr Lyttle for Cowperthwaite. A determination of what type of fall protection was to be used and who was to provide the fall protection. An inspection of the roof from the underside for structural soundness and safety mesh before work commenced. Ensuring there was an effective means of fall protection — for example, covering the skylights with plywood, or other suitable material, or by providing a barrier isolating the skylight area, or ensuring the safety harnesses were worn. Also Mr Smith ascertaining from Mr Kolevatov whether he had the necessary competence and ability in relation to his health to be working on the roof that day. 
[8]
The victim impact report for Mr Kolevatov tells me he is 44 years of age. He has been living in New Zealand for approximately five years. He has been living with his partner, Svetlana, for the last two years. They each have one child from previous relationships. He worked as a marine engineer in Russia for approximately 20 years. 
[9]
The victim impact report lists various problems he is suffering. Changed personality. He says he feels no emotion, frustration at his inability to do day to day things, headaches, his speech is slow and slurred, he suffers from ongoing pain. He has problems eating and talking because of the effects of a tube in his throat after the accident. He suffers from weight loss, short term memory loss, unsteadiness when walking and weakness on his left side. He experiences mood swings, sensitivity to light and noise. He has feelings of frustration and uselessness and there has been an impact on his relationship with his partner. 
[10]
A very unusual feature of this case referred to by His Honour Judge Cooper in the sentencing of the head contractor, Cowperthwaite Roofing Limited, which I will refer to later, is: at the time of the accident Mr Kolevatov was receiving accident compensation payments for a prior head injury suffered in a fall in 2006. Physical, mental and economic harm in this case is covered by ACC. Reparation in the present case is limited to reparation for emotional harm, an inherently difficult assessment to make, as stated by Judge Cooper “all the more so in this case because of the continuing effects that Mr Kolevatov was suffering as a result of the accident in 2006”
[11]
Two reports have been presented to the Court in relation to Mr Kolevatov's injuries and general situation arising from the 2006 accident. One is a neuropsychologist's report relating to an assessment in August 2007. Relevant comments in that report are: 
“Ivan expressed concerns about his abilities to return to work given his cognitive difficulty. He was cognisant of safety factors required for a return to the engineering industry and was worried that if he returned he could make mistakes. 
Based on the available information Ivan's pre-injury level of intellectual functioning is estimated to have fallen at least within the High Average range. The results are therefore compared with this baseline of functioning. The assessment revealed the following areas of impairment: 
Significant reduced speed of information processing. 
Reduced attention in working memory abilities. 
Reduced verbal new learning and memory abilities. There was a noticeable improvement compared with the previous assessment but Ivan's score remained reduced compared to pre-injury estimates. 
Reduced visual memory abilities; 
Some behavioural indicators of executive dysfunction were noted with mild impulsivity evident on some tasks. Ivan also continues to have periods of impulsive angry outbursts. There was some evidence, on testing, of reduced visual abstract reasoning abilities and difficulties on a measure of cognitive flexibility. ”
[12]
Later, the neuropsychologist goes on to say: 
“ … it is my impression that the current deficits would preclude him being able to return to his pre-injury level of employment … It is possible that Ivan will experience further improvement in these cognitive domains, although the rate of improvement will be slowing given the time since injury …  
As indicated, it is my impression that Ivan's current cognitive difficulties would preclude him from being able to return to his previous employment. I would recommend the re-introduction of an Occupational Therapist to review his current routines, fatigue management strategies and exploration of work options. Indications are that Ivan has a tendency to engage in a ‘boom bust’ type pattern which means he is not adequately pacing himself and potentially exacerbating fatigue. Therefore he would require close monitoring and guidance to ensure he manages fatigue and structures his activity participation appropriately. Ivan would also require an Initial Occupational Assessment as some time in the future to identify alternative work options. Any return to work would need to be gradual and Ivan will require both Occupational Therapy and Clinical Psychology support during this process. ”
[13]
That was the assessment made in August 2007, some 9 months prior to the accident. 
[14]
In May 2008 there was a report done by a psychiatrist, Dr Armstrong, who saw Mr Kolevatov the day before the accident. She makes a number of observations: 
“He continues to experience feelings of frustration, is readily triggered to anger and will explode quite easily. He tries to take himself away to settle down but it can take a couple of hours. He does not appear to be depressed currently, although he did go through a period of depressed mood. In the aftermath of his accident, the marital relationship, which I understand was already volatile, was put under more stress with his being unable to work, being at home and his mood problem. He had suicidal ideation at that point but no clear intent. ”
[15]
The psychiatrist observed in that report that his mood was improved, that she did not think he was still depressed. He was on medication to assist in dealing with headache, fatigue, attention and concentration and speed of mentation and to reduce his cognitive fatigue; also to control his impulsive anger. 
[16]
Before I embark on the sentencing process proper, I record when this matter came before me on 23 April 2009 I adjourned sentencing so I could obtain a copy of His Honour Judge Cooper's sentencing notes for the head contractor, Cowperthwaite Roofing Limited, judgment being issued on 19 February 2009. I have now had the benefit of receiving Judge Cooper's decision and indicate now in large part I adopt the procedure and comments made by him, in particular in relation to the issue of reparation. 
[17]
The sentencing procedure then is set out in the decision of Department of Labour v Hanham. & Philp Contractors Ltd & Ors (unreported, 18 December 2008, CRI-2008-409-000002, Randerson and Panckhurst JJ)
[18]
The High Court has set out three steps that need to be applied: First, the fixing of reparation. Second, the fixing of the amount of the fine. The fine to address the specific statutory purposes of denunciation, deterrence and holding the offender accountable for the harm done. 
[19]
The approach in R v Taueki [2005] 3 NZLR 372Has partially negative history or cases citing, but has not been reversed or overruled[Yellow]  is to be adopted. That is fix a starting point based on the circumstances of the offending and then adjust upwards or downwards for aggravating or mitigating factors in relation to the offender. 
[20]
The assessment of a starting point is based on a level of culpability as set out in Hanham & Philp. Furthermore, under step 2 the Court is required to consider the financial capability and capacity of the offender. As indicated at the hearing, this consideration would be significant given Mr Smith's impecuniosity. 
[21]
The final step 3 requires the Court to make an overall assessment involving a consideration of the total imposition on the offender of the reparation and the fine, whether it is proportionate and appropriate for the circumstances of the offending and the offender. 
[22]
Dealing with step 1 reparation there is no economic loss as Mr Kolevatov was and is in receipt of ACC payments. It is the emotional harm which must be assessed. 
[23]
I have received helpful submissions from both the informant and the defendant. Mr Tuiqereqere for the defendant refers to the fact that many of the problems suffered by Mr Kolevatov after the 2008 fall were present as a result of the 2006 fall. Many of the symptoms identified in the victim impact statement were caused by the 2006 injury and it is not possible, given the lack of medical information from September 2008 to the present, and in fact a victim impact statement was prepared only 7 months after the fall to consider what, if any, of the 2008 symptoms are permanent. 
[24]
I infer from Mr Tuiqereqere's submissions — in particular para 3.13 — there is an acknowledgement that harm has arisen from the 2008 fall but it is the extent which he says is clouded by the harm from the earlier fall in 2006. 
[25]
Those concerns were echoed by His Honour Judge Cooper when sentencing the defendant Cowperthwaite. He said at para [21]: 
“[21]
Dealing now with the step by step assessment that is required. In relation to step one, fixing the reparation, that is a particularly difficult assessment in this case. It goes without saying that a fall of eight metres, causing the serious injuries it did, inevitably would result in some emotional harm beyond the physical and mental injuries and economic loss suffered by the complainant. The difficulty is in assessing the extent to which that emotional harm is referable to the 2008 incident. 
[22]
I take it from the report in 2007 and the report in 2008 from the neuro-psychologist and the psychiatrist that over time, the emotional effects of the 2006 injury would slowly resolve, and I think it is an available inference that because of the 2008 accident, there is an impact on the pre-existing emotional harm; to increase it, to cause a continuation of harm which would otherwise resolve. ”
[26]
Following on from those comments, Judge Cooper found an appropriate figure for emotional harm referable to the 2008 incident was $20,000. No apportionment of that figure for reparation was indicated. It is apparent from His Honour Judge Cooper's decision that he saw the total reparation for which the victim Kolevatov was entitled was $20,000. That being so, no further reparation order is warranted and none will be awarded. 
[27]
I now address step 2 of the process — assessing the fine. The starting point involves a consideration of the nature and seriousness of the risks. In this case there was an obvious fall hazard recognised by the defendant and the head contractor. The harm that occurred to Mr Kolevatov was serious injury. 
[28]
I cannot improve on Judge Cooper's comments at para [27]: 
“[27]
I note that practical, simple and inexpensive steps could have been taken to avoid the harm, such as covering the skylights with suitable material or providing an isolating barrier or ensuring that safety harnesses were worn. ”
[29]
Judge Cooper found the culpability of Cowperthwaite in the medium range in terms of the Hanham & Philp decision. The defendant here submitted culpability in the low range with a starting point of $5,000 to $10,000 as appropriate. With respect, I see little distinction between the culpability of the head contractor, Cowperthwaite, and Mr Smith. Accordingly, the culpability must be in the medium range. In particular, Mr Smith's culpability must be tied to the obviousness of the hazard, the significant harm that was risked by such a fall hazard and the ease with which the hazard could be controlled. Mr Smith made a number of dangerous assumptions which ultimately contributed to Mr Kolevatov's fall. From his experience with Cowperthwaite, he understood the head contractor would ensure the site was safe. That proved to be in error. As a self-employed contractor in a high hazard workplace, it was not reasonable for him to simply expect the head contractor to undertake all the necessary safety work and precautions at the site. Particularly so when the hazard had been clearly identified to Mr Smith at the commencement of the job. Accordingly, culpability must be found to be in the medium range and I do not depart from the starting point found by Judge Cooper of $80,000. 
[30]
The figure must then be adjusted for mitigating and aggravating factors relevant to the offender. There are no aggravating factors relevant to the offender in this case. 
[31]
There are mitigating factors. First, an early plea of guilty. Second, his co-operation with the Department of Labour and empathy towards Mr Kolevatov's situation, going to visit him during his recovery. 
[32]
An allowance of 30 percent is extended for the early guilty plea. A further 5 percent for co-operation and empathy toward Mr Kolevatov's plight. That would result in a total reduction of $28,000, leaving a figure of $52,000. There is a further fact in this case which can properly be taken into account and was relied on by the defendant. That, of course, was the actions of Mr Kolevatov himself. It is apparent from the reports in August 2007 and May 2008 that Mr Kolevatov was in no way ready to return to work as a roofer. Roofing, by its very nature, carries significant risk which can be managed but not with someone in Mr Kolevatov's condition. His actions in returning to work were premature. They appear to have been without sanction by ACC. Nor did he advise Mr Smith of his condition and symptoms which would have put Mr Smith on notice he was unsuitable for the work. Again, I would apply the same figure as His Honour Judge Cooper and further reduce the fine by $10,000 because of Mr Kolevatov's own actions. 
[33]
Significantly in this case, in completing Step 2 I need to consider the financial capacity of the defendant to meet a fine. In that regard I have been assisted greatly by an affidavit from the defendant which confirms he is unemployed; that he currently has no income; that his wife is employed as a cleaner and is the only income earner, receiving $404 nett per week; that even with family assistance of $145 the total family income is $549; that after expenses totalling $770 there is a significant shortfall in income. In effect, Mr Smith has a negative income. 
[34]
Although the defendant is actively seeking employment, it seems to me I can only rely on his current financial circumstances to establish his capacity to meet any fine. It is obvious from my preceding comments that Mr Smith has no capacity to meet a fine. Accordingly, there is no way the defendant could meet a fine of $42,000. Through his counsel he has offered to pay a fine of $1,000 but, of course, that would have to be by way of time payment. 
[35]
The final position is that the defendant in relation to the charge relating to Mr Kolevatov will be fined $1,000. There will be no order for reparation. 
[36]
In relation to the charge relating to himself, the defendant will be convicted and discharged. 
[37]
I now step back and, in relation to step 3, consider whether the fine totalling $1,000 is appropriate to the circumstances of the offence and the offender. In fact, the fine is only a token of what would be appropriate but for the significant lack of financial capacity of the defendant. 
[38]
Looking at the position as a whole, I am satisfied that, standing back, total financial imposition of $1,000 is appropriate. 
[39]
I make this final comment after considering all the materials. It is apparent that Mr Smith made far too many assumptions in terms of the safety hazards present on the site and made far too few inquiries both of the head contractor and of Mr Kolevatov's ability to undertake the work. That combination of factors proved to be directly related to the injuries suffered by Mr Kolevatov. I would urge Mr Smith not to consider re-entering the roofing industry until such time as he has undertaken the necessary training, skills and programmes incumbent on a self-employed contractor in this type of industry to avoid this situation ever happening again. 

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