Skip to Content, Skip to Navigation
Advertisement

Safeguard OSH Solutions - Thomson Reuters

Safeguard OSH Solutions - Thomson Reuters



OSH Tracker

Department of Labour v Arbor Reman Ltd (DC, 04/08/09)

OSH Tracker

Defendant:
Arbor Reman' Ltd
Arbor Reman’ Ltd was fined $55,000 and ordered to pay reparations of $20,000 under s6 of the HSE Act after an employee’s little finger was chopped off by a saw. His other fingers were badly lacerated but were able to be surgically reattached. The man was preparing to feed a piece of timber into a band saw. Following directions from the leading hand he used a spray bottle to apply lubricant to the saw blade and wheel, when his left hand came into contact with the rotating blade. At the time no adjustable guard was installed. The man had not been formally trained in the use of the band saw. The DoL said the risk of manually lubricating the saw while it was operating had not been identified, and an automatic lubrication mechanism should have been installed (Auckland DC, January 26). 
Industry:
Agriculture, Forestry and Fishing
Sub-Industry:
Forestry and Logging
Risk:
Machinery (trapped, crushed, cuts)
Harm:
Injury
Penalty Amount:
$75000.00
Reparation Amount:
$20000.00
Appeared in Safeguard issue 121

Judgment Text

ORAL JUDGMENT OF JUDGE P I TRESTON 
Judge P I Treston
[1]
The defendant, Arbor Reman Limited, has been charged that on 30 April 2008 at Tauranga it committed an offence against s 6 and s 50(1)(a) of the Health and Safety in Employment Act 1992, in that it, being an employer, failed to take all practicable steps to ensure the safety of its employee, Daryl Shane Theobald, while at work, in that it failed to take all practicable steps to ensure the safety of Mr Theobald while he was using a Morgan two-head band saw. 
[2]
The defendant has pleaded guilty and accepts that it did not have a machinespecific documentary hazard identification in relation to the machine and that it did not have documentary machine-specific health and safety training for that machine. 
[3]
The summary of facts has been presented to the Court in anticipation of the sentencing, and that provides and states that the defendant company is a timber remanufacturing company, operating a factory located at 9-11 Kereiti Street, Omanu, Tauranga. The defendant owns a Morgan USA two-head horizontal band saw, which is used to rip timber. Ripping is the process whereby the timber is pushed lengthwise with the grain through the running blade of a band saw to reduce its width. The defendant was the employer of a timber worker, Mr Theobald, who, on 30 April 2008, suffered the amputation of his left little finger to the first joint and severe lacerations to his left index and middle fingers, when his hand came into contact with the rotating blade of the band saw. Mr Theobald was hospitalised for six days following the incident. 
[4]
Mr Theobald had been employed by the defendant for approximately five years. For two years prior to the incident he was employed on a piece rate contract to operate a filleting machine. Filleting is a process used to allow air movement through the packets of timber to facilitate the drying process. Mr Theobald was a trained filleting machine operator, but has not been formally trained on the use of a band saw. He had previously used the band saw, at the defendant's direction, on one occasion, being 29 April 2008. 
[5]
On the day of the incident Mr Theobald had run out of timber for the filleting machine. Mr Theobald and another timber worker, David Albutt, were directed by the defendant's site supervisor, Mark Watchman, to use the band saw. The band saw had already been set up by the factory leading hand, Cheine Matheson, as it had been used by Mr Theobald and Mr Albutt earlier that morning. 
[6]
Mr Theobald was preparing to start the in-feed of a piece of timber into the band saw, in accordance with directions from the factory leading hand, Cheine Matheson, and was using a CRC spray bottle to apply diesel lubricant to the band saw blade and band wheel to prevent resin build up. While Mr Theobald was spraying lubricant on to the band saw his left hand came into contact with the rotating blade of the band saw. At the time of the incident the band saw had an adjustable guard that was not installed. The defendant's leading hand stated that the guard had been removed prior to Mr Theobald using the band saw. 
[7]
The informant's investigation of the accident revealed the following breach of the Health and Safety In Employment Act 1992. As an employer, the defendant was advised to take all practicable steps to ensure that Mr Theobald was not harmed whilst using the band saw. The defendant should have taken the following practical steps: 
a)
Ensured that the hazard identification had been carried out in respect of the band saw and identify the risks of manually lubricating the band saw while operating. 
b)
Ensured that only trained employees were permitted to use the band saw. 
c)
Ensured that the band saw was fitted with a suitable adjustable guard to prevent employees from contacting the operating saw blade. 
d)
Installed an automatic lubrication mechanism so that manual lubrication was not required to be undertaken by an employee. 
[8]
Flowing on from the allegations and the summary of facts, it was formulated in consultation with the prosecution and the defence that the following facts were in dispute, as follows: 
a)
That Daryl Theobald had used the band saw on only one prior occasion. 
b)
That Daryl Theobald had not been trained on this particular band saw. 
c)
That the point on the machine at which the accident occurred required a guard. 
d)
That an automatic lubrication system was required on the machine. 
e)
That Mr Theobald's injuries were not caused by his actions or omissions. 
[9]
I have heard evidence today from the victim, Daryl Theobald, and from the following witnesses for the defence: 
a)
David Albutt, who was operating the machine in concert with the victim. 
b)
Janine Prime, who was the receptionist for the defendant and also the health and safety representative for the defendant. 
c)
Cheine Matheson, who was the leading hand, to whom I have already referred, and 
d)
Michael Lee, a consulting mechanical engineer, who gave expert evidence on behalf of the defence. 
[10]
As I have indicated, the company has accepted its responsibility in relation to the two factors that I have already referred to and, having heard the disputed facts and cross-examination, I remind myself that under s 24 of the Sentencing Act 2002 in determining a sentence or other disposition of the case at Court, I must indicate to the parties the weight I would be likely to attach to the disputed facts, if they were found to exist, and if a party wished me to rely on the facts the parties may adduce evidence as to their existence unless I was satisfied that special evidence was produced at the hearing or trial. Here, of course, there was a guilty plea and, under s 24(2)(c), the prosecutor must prove beyond a reasonable doubt the existence of any disputed aggravating fact and must negate, beyond a reasonable doubt, any disputed mitigating fact raised by the defence (other than a mitigating fact referred to in paragraph (d)), that is not wholly implausible or manifestly false, and under subs (d) the offender must prove on the balance of probabilities the existence of any disputed mitigating fact that is not related to the nature of the offence all of the offender's part in the offence. 
[11]
The defence accepts, in relation to the five facts in dispute, that paragraphs 1 and 5 are matters that fall to be dealt with under s 24(2)(d), where the burden of proof is on the offender on the balance of probabilities, which means more likely than not, but that disputed facts 2 through 4 fall to be dealt with under s 24(2)(c), where the prosecution has the burden of proof beyond reasonable doubt, which means that the Court must be sure of those facts. 
[12]
Having heard the evidence, as I say, and the cross-examination, I have listened to the submissions made by counsel on behalf of each of the parties, and the prosecution alleges that in relation to the first disputed fact as to whether or not Mr Theobald had used the band saw on only the one prior occasion on the day before the accident, which occurred on 30 April and, having used it on 29 April 2008, it was really a matter of weight with the evidence because the witness, Mr Theobald, the victim, accepted that on one other occasion, other than 29 and 30 April 2008, he had had occasion to be part of the operation of the band saw on the outside of the operation where he had uplifted the timber from the saw and stacked it. 
[13]
But Mr Matheson, on what was, really, according to my summation of the evidence, and finding a guesstimate of it as to how often Mr Theobald had used it, not based on any documentary evidence, which he was able to do in relation to some other employees, that he had used it half a dozen times, although he had said to Mr Lee that it had happened on a dozen occasions, according to Mr Lee's evidence, and Mr Albutt, who said that he and Mr Theobald had used the saw many times. The prosecution submitted that it was really a matter of weight for the Court to decide upon the evidence. 
[14]
In relation to the second disputed fact the prosecution submitted that the victim was probably unaware that the machine was missing a guard and the guard in question is what was called a “guard” or a “gate” by various witnesses, as shown in photograph A, just immediately to the left of where Mr Matheson is demonstrating lubrication of the blade. Clearly, it was common ground that it was not there on the day of the accident. But in any event, the notice that might have been on the machine was insufficient for training purposes. 
[15]
In relation to the third disputed fact the prosecution submitted that it is the responsibility in a strict liability offence such as this that the defence takes all practicable steps to ensure the safety of employees and that an adjustable guard could have been utilised and the adjustable gate or guard that was already there should have at least been present. 
[16]
In relation to the fourth disputed fact it was submitted that even the defence witness, Mr Lee, had conceded that an automatic lubrication system would have avoided the potential of anyone having to put his hands near the blade to lubricate it, even from a distance of half a metre, and that that should have been done. 
[17]
In relation to disputed fact 5 the prosecution submitted that, of course, this is a strict liability offence. There was no evidence that Mr Theobald had been using his cellphone, although the phone was found in the area, and that, in any event, the defence had not proved, on the balance of probabilities, that there was any mitigating factor arising from Mr Theobald's injuries and his alleged actions or omissions. 
[18]
On the other hand, the defence, in written submissions, has submitted that the evidence of the defence witnesses, Mr Matheson and Mr Albutt, ought to be preferred to that of Mr Theobald's, in relation to number of times that the band saw had been used by him, and that the Court ought to accept, on the balance of probabilities, it had been more than the one prior occasion on the day before the accident and another occasion when he had been on the outside of the operation, and that, in relation to the second disputed fact, that there had been training of the victim, because the evidence from the prosecution witnesses, particularly the leading hand, Mr Matheson, was that on each occasion that persons were called upon to use the band saw they were instructed verbally and physically as to the operation of the band saw, and that, as far as point 3 was concerned, Mr Lee had said that it was impracticable to guard the machine and the blade from above, for example, because, inevitably, part of the blade must be exposed, otherwise it could not operate. 
[19]
In relation to the fourth disputed fact the defence argued that the machine had not had an automatic lubrication system for the long period under which it had been operated and that Mr Lee had said, in his evidence in chief, although it seems he might have resiled from that in cross-examination, that the system was satisfactory, from an engineering point of view. 
[20]
So, I have set out the facts. I have set out the disputed facts. I have set out the submissions that have been made, and it falls upon the Court now to rule upon those disputed facts and make findings of them, as far as sentencing will be concerned. 
[21]
In relation to the first disputed fact, that Mr Theobald had used the band saw on only one prior occasion, it is clear that while he had been part of the operation on other occasions, I am satisfied, on the balance of probabilities, and I do not consider that the defence has swayed me in that regard, that while he might, as I say, have been part of the operation, he had not, in fact, used the band saw from the input side of the machine, other than on the occasion on 29 April and, of course, again on 30 April, and although there was some equivocation in the evidence about whether or not it was Mr Albutt who was the operator, the evidence was that he and Mr Theobald had on the day swapped roles in between smoko times and break times and that each operated it, and I find, in relation to the disputed facts in that regard, that Mr Theobald had used the band saw as an operator only on 29 and 30 April. While he might have been involved, as I say, in the operation, he had not been the operator, as such. 
[22]
In relation to the second disputed fact, I accept that there had been demonstration and explanation, both verbally and practically, by the leading hand, Mr Matheson, each time that there was to be an operation by those out of his general area as to the operation of the machine, but, clearly, as the defence has accepted, there was not a machine-specific documentary hazard identification, nor documentary machine-specific health and safety training. So, to the extent that there was a practical, physical and verbal instruction, there certainly had been no documentary instruction in relation to the utilisation of the machine. That, of course, would have had to have been reinforced by the reading of any document to the victim because he was somewhat handicapped in relation to his reading ability. 
[23]
As to the third fact in dispute, I am of the view that, clearly, the machine did require a guard of some sort or another in the area where the blade and the guides had to be lubricated from the top area. While it is clear that the lubrication of the blade itself could be done from the side, underneath the green painted guards, it is clear from the evidence that there also had to be lubrication of the guides and the blade from the top area, and that, at least, the gate or guard, and Mr Matheson himself, who was the leading hand and the one who demonstrated the machine, had considered that the gate or guard was to prevent and to cover as much of the blade as possible, because, obviously, it was absent when the accident occurred, and he, himself, was a little cavalier about his understanding about his use of the guard or guide. He said it was more trouble than it was worth, and unfortunately, guards which are seen to be more trouble than they are worth are sometimes removed by employees. Of course, that is not the case here, but it was not there at that stage, and it had the dual purpose, in my view, of preventing ready access to the blades, as well as acting as the gate for the timber to be placed squarely on to the guides. 
[24]
As to the fourth disputed fact, as I understand it, an automatic lubrication system has now been installed, and it is my view that, even at the time of the accident, it should have been available to prevent any possibility of workers coming close to the blade, when lubricating it when the machine was operational. Common sense would dictate that that would be safer, and Mr Lee, the expert for the defence, in fact, himself agreed, although not in evidence-in-chief, but certainly under cross-examination, that that would have been a much safer option and, I am glad to say, that it has now been attended to. But my finding is that, in hindsight, and hindsight is a great thing, but nevertheless, an automatic lubricating system was required on the machine at the time. It was probably more good luck than good management that there had not been an earlier accident. 
[25]
As to paragraph 5, that is a matter which falls, as I have already said, to be determined on the basis of the defendant having the onus to prove on the balance of probabilities and more likely than not. I am not of the view that the victim's injuries were caused by his actions or omissions. He had clearly been required to, and had observed others, lubricating the saw in the area where he eventually came into contact with it. While I bear due weight to the evidence given by Mr Lee, for example, about the way that the machine and the blade rotated, nevertheless, I am satisfied that the victim's injuries were not caused by his actions or omissions. There was some hint that he may have been using his cellphone. That is unsubstantiated one way or another, either on the balance of probabilities or beyond reasonable doubt, but I am satisfied that, in accordance with the strict liability aspect of the legislation, that the injuries were not caused by his actions or omissions. 
[26]
Those are the findings of fact which I make. And following on from that submissions as to sentence can be filed in due course. Bearing that in mind, I have made enquiries about a suitable date when that can occur. Unfortunately, my commitments in the September week that I am returning to this Court are such that it will be impossible for me to attend to the sentencing on that date, and the best we can do is a sentencing date which I have organised with the registrar for Friday 6 November 2009 in this Court. So time has been set aside specifically for that, as a priority, and I have mentioned to the registrar that it will need to be set down for an hour and a half. 
[27]
Bearing that in mind, I think it is now appropriate to timetable the filing and service of submissions and, consequently, I direct that as the disputed facts have been determined and my reasons given, the prosecution is to file and serve written submissions as to sentence and an updated victim impact statement by 11 September 2009. The defence is to file and serve written submissions by 16 October 2009. 
[28]
The defendant company is remanded to 10 am on 6 November 2009 for sentence. 

From OSH Tracker

Table of Contents