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Safeguard OSH Solutions - Thomson Reuters

Safeguard OSH Solutions - Thomson Reuters



OSH Tracker

Department of Labour v Taylor Preston Ltd (DC, 19/08/09)

OSH Tracker

Defendant:
Taylor Preston Ltd
Taylor Preston Ltd was fined $54,000 and ordered to pay reparations of $10,000 after an employee’s hand was mutilated in an unguarded auger. The company was charged under s6 of the HSE Act following the incident where the cleaner’s hand was trapped between the slowly revolving auger and a channel in which it operated. He hand was badly cut along and a finger was fractured, a finger joint exposed, and further damage to nerves, muscles and tendons. He was able to resume light duties about four months later. The company had in 2006 identified the absence of a guard on the hopper as a hazard. No action was taken and the “white fat” room was decommissioned a year later. A few months later the room was re-commissioned but no guard was installed, and that inaction was noted on a hazard ID form. Judge John Walker noted in sentencing that the company had two previous convictions under the act. In 2005 a machine operator’s fingertip was amputated while trying to clear a blockage in an unguarded auger. The second conviction, in 2007, had involved a cleaner’s hand being caught in unguarded rollers. Judge Walker said the previous convictions ought to have made the company highly vigilant ( Wellington DC, August 19). 
Industry:
Agriculture, Forestry and Fishing
Sub-Industry:
Agriculture
Risk:
Machinery (trapped, crushed, cuts)
Harm:
Injury
Penalty Amount:
$64000.00
Reparation Amount:
$10000.00
Appeared in Safeguard issue 118

Judgment Text

Sentencing Decision of Judge John Walker 
Judge John Walker
[1]
Taylor Preston Limited (TPL) has pleaded guilty to one charge under section 6 of the Health and Safety in Employment Act 1992 that 
“Being an employer he failed to take all practicable steps to ensure the safety of its employee, namely Rupeti Simi while at work, in that it failed to lake all practical steps to ensure that Rupeti Simi was not exposed to hazards arising out of cleaning the Palmia auger/screw conveyor in the White Fat Room at his place of work. ”
[2]
The accident giving rise to this charge arose at the defendant's meat works on 19 August 2008. 
[3]
Mr Simi was employed by TPL as a cleaner and it was part of his work to clean an auger conveyor which was used to convey fat to a holding tank. Mr Simi was using a hot water hose on the turning auger to clean it. He noticed that a piece of fat had not been dislodged from the auger and he turned the auger off. and then reached into the hopper to remove the fat by hand. It takes up to twelve seconds for the auger to stop revolving and while it was still slowly moving Mr Simi's hand became trapped between the auger and the channel in which it operated. Mr Simi decided that the only way to extract his hand was to turn the auger on again and remove his hand when it became free. This was successful but his hand was already injured. 
[4]
Mr Simi suffered deep lacerations to the back and palm of his right hand, an opened and crushed spiral fracture to his finger, an exposed finger joint, and muscle and nerve and tendon damage across the back and palm of his hand. 
The practicable steps available but not taken 
[5]
The dangers of unguarded machinery are well known in any industry. The Department of Labour has published specific guidelines about guarding screw conveyors. Following the accident TPL was able to take straight forward steps to avoid the risk and those steps demonstrate what practical steps could have been taken. An interlocked guard has now been installed over the hopper. The guard cannot be lifted until the auger has stopped turning and the machine cannot be restarted while the guard is open. 
[6]
TPL had identified the absence of a guard on the hopper as a hazard in 2006 at a time when the White Fat Room in which the auger was operating had been closed down. The absence of a guard was noted again in May 2007 but at that time it was also noted that the room was not being used. As a result of the decommissioning of the room no steps were taken to deal with the hazard. 
[7]
When the room was put back into action after July 2007 TPL did not revisit the earlier hazard identifications and no guard was installed. 
[8]
In November 2007 a Hazard Identification Form noted “no guard has been installed”
[9]
It appears therefore that the hazard was identified, both when the room was out of action and again after the room was re-commissioned, but no action was taken to avoid the hazard. 
[10]
The first step in the sentencing process is to assess the amount of reparation. It is common ground in this case that there is no economic loss suffered by Mr Simi. I need to assess the emotional harm suffered by Mr Simi and assess an appropriate level of reparation for that harm. 
Emotional harm 
[11]
What I need to assess in this case is the emotional harm occasioned by the trauma of the accident itself and the subsequent operations and recovery. 
[12]
Mr Simi is 55 years of age. A plastic surgeon described Mr Simi as having suffered a “mutilating injury” to his right hand. He required a repair to his broken finger which required plates and screws, removal of a dead piece of skin flap and a consequent skin graft and he required the repair of a tendon. This tendon repair required repeat surgery following damage to the repair in physiotherapy. Mr Simi spent six days in hospital. 
[13]
Mr Simi was still undergoing treatment as at 20 October 2008, a month after the accident. He was assessed as being fit for a return to light duties on 10 November 2008. From the Victim Impact Statement it appears that he was unable to drive for three months and his wife was unable to drive and this prevented him from taking part in a number of social and family activities. His inability to work meant that his wife needed to work longer hours and caused some level of strain within the family. Mr Simi has returned to work and on the information before me the injury is not going to have a lasting impact on his employment opportunities. It is not an injury within the “life altering event” category. I need to consider the level of reparation from emotional harm assessed in other like cases, recognising that emotional harm is unlikely to be the same in any two cases. 
[14]
I have considered the case referred to me by the informant, Department of Labour v Downer EDI Works Limited (unreported 8/6/09 DC Wellington) and Judge Broadmore's helpful discussion in that case. In that case the injured worker had undergone five operations, his sporting activities were affected and there were long term effects on the use of his hand, and at the time of sentencing he was still unable to work. The Judge assessed reparation for emotional harm at $15,000 although he considered that a higher amount could have been justified. 
[15]
Taking into account the accident itself and the extent of medical treatment required I consider that a payment of $10,000 would be a proper reflection of the emotional harm suffered by Mr Simi in this case. 
Assessing the fine 
[16]
I turn next to consider the appropriate level of fine. This involves assessing the level of culpability for the offending. 
[17]
I have already detailed the practical steps which could have been taken. Clearly there was a need for a fresh hazard assessment and remedial action to be taken before the plant was re-commissioned. It is noteworthy that even when there was a subsequent identification of the hazard, no steps were taken to guard the auger. 
[18]
In assessing the nature and seriousness of the risk of harm occurring, as well as the realised risk in this case, I take into account that an open and accessible auger gives rise to a risk of serious harm. The injury in this case was at a time when the auger had been switched off and there can be no doubt that the injury would likely have been more serious if the auger was in full operation. I recognise that if the auger was in full operation the need for anyone to touch it in those circumstances would be much less. In my assessment an unguarded and accessible auger presents a high risk of serious injury. 
[19]
As I have already noted the risk was obvious because it was in fact noted in risk assessments and the means of avoiding the hazard were readily available and straight forward to install. The need to guard augers has been the subject of Department of Labour publications and would have been well known to the defendant. 
[20]
Taking those matters into account I place this offending towards the top of the medium culpability band and I take a starting point as a fine of $80,000. 
Aggravating factors 
[21]
TPL has two previous convictions under the Act. The first in 2005 involved a machine operator suffering an amputation of the tip of a finger in attempting to clear a blockage in an unguarded auger. The guard had been removed by a maintenance engineer two weeks before the accident and not replaced. 
[22]
The second previous conviction was in 2007 when a cleaner's hand was caught in unguarded rollers. The cleaner suffered a severe crush injury to a finger which required surgery. These two convictions, involving as they do injuries as a result of unguarded machinery, ought to have made TPL highly vigilant in this area of hazard and the fact of the two convictions are aggravating factors and serve to increase the fine to $100,000. 
Mitigating factors 
[23]
The first mitigating factor is the plea of guilty by the Company. The Company indicated that it intended to plead guilty at an early stage and is entitled to the maximum credit, saving the victim from having to relive the accident and the resources of a defended hearing. The plea of guilty serves to reduce the level of the fine to $66,700. 
[24]
Additional mitigating factors are the fact of co-operation with the investigation, the taking of immediate remedial action by way of guarding the machinery and additionally, putting in place a management system designed to bridge the communication gap between the engineers and the health and safety services within the Company. It was this lack of communication which TPL has identified as the reason why the identified hazard was not remedied when the Fat Room was re-commissioned. 
[25]
The Company has acted as a good employer in managing Mr Simi's return to work. 
[26]
These additional mitigating factors lead to a further reduction of the level of fine to $60,000. 
[27]
I now take into account the sentence of reparation which I have assessed as being appropriate. A reduction in the fine of 10% to reflect the reparation amount results in a fine of $54,000. The total monetary penalty of $64,000 including reparation is in my assessment an appropriate and proportionate response to this offending. 
[28]
The Company is fined $54,000 and is ordered to pay reparation of $10,000, to be paid within one month of the delivery of this decision. In addition the defendant is ordered to pay court costs of $130 together with a solicitor's fee of $250. 

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