Skip to Content, Skip to Navigation
Advertisement

Safeguard OSH Solutions - Thomson Reuters

Safeguard OSH Solutions - Thomson Reuters



OSH Tracker

Department of Labour v Professional Harvesting Systems New Zealand Ltd (DC, 21/09/09)

OSH Tracker

Defendant:
Professional Harvesting Systems Ltd
A judge decided against fining a forest management company af­ter a contractor was killed by a falling tree – finding that the manhad taken upon it himself to do work he’d explicitly been told not to. 
Professional Harvesting Systems Ltd was instead ordered to pay reparations of $30,000 ( Tauranga DC, September 21 2009). The company had pleaded guilty to a single charge, under s18 of the HSE Act. 
The contractor was killed at Te Puna after being struck by a falling tree which he had uprooted with his excavator. He had been engaged to carry out road and track formation to allow a logging crew access to a wood lot on a kiwifruit orchard. 
Following a disputed facts hearing Judge T.R. Ingram concluded the contractor was working in an area he was instructed not to. The DoL had taken a different view – that the man was doing work he was contracted to do. 
Judge Ingram said in sentencing that he had found “clear and unequivocal” the evidence of a wood lot procurement man­ager. He had told the contractor not to go into the area wherethere were overhanging trees, because he had seen an unsafe situ­ation arising from what is known in the trade as a “sailor” – a tree hanging in another tree. That had required the skill and equipment of another contractor who was due to start work on that part of the job the next day. 
The DoL had argued the company had failed to ensure it had documented systems in place to identify the hazards, or controls to manage them. 
Judge Ingram said there was no reference in the legislation that any instruction be written down. He said while there were many circumstances where instructions needed to be given in writing, there were also numerous exceptions – including where there was a long history of dealings between parties. The manager and contractor had known each of other for many years, were friends, and trusted each other. 
Judge Ingram said the culpability must be “as low as it possible to get”. He found the only penalty required was that of emotional harm reparation. 
Industry:
Agriculture, Forestry and Fishing
Sub-Industry:
Forestry and Logging
Risk:
Struck by falling object
Harm:
Death
Penalty Amount:
$30000.00
Reparation Amount:
$30000.00
Appeared in Safeguard issue 123

Judgment Text

NOTES OF JUDGE T R INGRAM ON SENTENCING 
Judge T R Ingram
[1]
The defendant, Professional Harvesting Systems New Zealand Limited, has pleaded guilty to a single charge laid under the provisions of s 18(1)(b) and s 50(1)(a) of the Health and Safety Employment Act 1992 in that it being a principal, failed to take all practicable steps to ensure that no contractor, namely Noel Leonard Mason, was harmed while doing work, namely road and track formation, that the said contractor was engaged to do. 
[2]
The prosecution which has been brought, relates to the death of Mr Mason, who was struck by a falling tree, which he had uprooted with his excavator. Mr Mason died at the scene and this prosecution has followed. 
[3]
There is a fundamental aspect to this case, which is, at least in my experience as a Judge and indeed before that as counsel at the bar, unique. 
[4]
An affidavit was filed by the defence outlining steps that the defendant had taken for the benefit of Mr Mason to specify the work that he was being required to do. He was required to work in the open and demolish a set of cattle yards, to work on some track upgrading in a number of places, and he was advised that another contractor was going to work in the area where Mr Mason was killed. 
[5]
This matter was of such significance that I heard evidence, in the course of the sentencing process, from Mr Brown, who was sworn and who was cross-examined. His evidence was clear and unequivocal. Mr Brown is a man in his sixties, who had known Mr Mason for a number of years, was close friends with him, Mr Mason having stayed with him on occasions. 
[6]
His evidence was that they walked the job before Mr Mason commenced it and the parameters of the job were explained to him by Mr Brown. Mr Brown told him that he should not go into the area where there were overhanging trees because he had seen an unsafe situation arising, from what is known in the trade as a “sailor” a hung up tree, which had been blown out and was hung up in another tree. Mr Brown had identified that area as requiring the skill and equipment of the other contractor, Mr Rolston, who was due to start on that part of the job the very next day. 
[7]
Unfortunately, it would appear, on the basis of Mr Brown's evidence on that point, that his instructions were disregarded by Mr Mason, who Mr Brown said was a man who would go the extra mile and who was diligent to ensure that he was providing the service that he was engaged to do. 
[8]
That is no minor matter in this particular case, because I asked counsel to provide for me any case that they could locate which involved an assessment of liability where an independent contractor had been specifically told not to work in an area and has taken it upon himself to go into an area that he has effectively been barred from. 
[9]
I acknowledge that with men of the age of Mr Brown and Mr Mason and their working relationship, it would be unlikely that Mr Mason would have regarded the discussion as being an absolute bar in the sense that it might be in circumstances where a young trainee is being inducted into a job. But nevertheless, it is clear to me on the evidence of Mr Brown, and I accept his evidence unequivocally, in total his evidence demonstrated, beyond argument, that the particular stretch of roadway, which Mr Mason was working upon when he was killed, had been identified as being hazardous by Mr Brown and they had discussed it. Mr Mason had been told that it was Mr Rolston's job to deal with that area and that he (Mr Mason) should get on with the other parts of the work that were available to him and leave that area to Mr Rolston. 
[10]
So we have the position where an independent contractor, extremely experienced and very highly regarded by Mr Brown, has done something which had been discussed between them and the hazard identified and a plan adopted, whereby Mr Mason knew that he should not go there until Mr Rolston had finished with his work. 
[11]
I am not aware of any case, which assesses the liability of a principal in those circumstances. 
[12]
The prosecution say that there were two failings on the part of the defendant. Firstly, ensuring that it had documented systems in place to identify the hazards associated with the job and appropriate controls to manage the hazards. That is in short, a submission that if it is not written down, then it did not happen. I do not accept that that is the law in relation to hazards or hazard identification and I do not accept that it is the law in connection with the obligation of any employer for that matter. 
[13]
I accept unreservedly that there are many circumstances where instructions need to be given in writing, but I consider there are numerous exceptions to that rule and one of those exceptions must be where there is a long history of dealings between the parties, each of whom have different areas of expertise, one of whom is contracted to the other, with a mutually respectful relationship, and the parties have walked the job and identified the hazards and the extent of the job immediately to be done. 
[14]
The critical feature is, what work was the contractor engaged to do? Here, I am satisfied on the evidence, Mr Mason was contracted to do work other than work in the area where the tree fell upon him, which area Mr Rolston had been engaged to deal with. It is conceivable that Mr Mason has misunderstood. Nevertheless there is evidence to support that finding and I would need to be satisfied beyond reasonable doubt, that he has in fact misunderstood what work was reserved to Mr Rolston. 
[15]
The law is clear as far as proof of facts is concerned, that the prosecutor must prove beyond reasonable doubt, any disputed aggravating fact and must negate any disputed mitigating fact beyond reasonable doubt, that is not wholly implausible or manifestly false. Far from being implausible or false, I accept Mr Brown's evidence in relation to this crucial aspect and accordingly, the company has proven to my satisfaction, on the balance of probability, that they told Mr Mason he should not be there, that someone else was going to do that work. 
[16]
So the prosecutions submission that the practical step of having a documented system in place on this occasion is, in my view not apposite. I find no reference anywhere in the Act, and I asked counsel to refer me to any such reference and counsel was unable to locate any reference in the Act, to a requirement that any instruction be written down. As I said there are cases and circumstances where writing is plainly desirable and necessary, for example on a large construction site, an oil rig, a mine, a forestry operation which involves a number of people. That is not the case here, this is one man telling another man what he has been engaged to do and these are men who have known each other for many years, are experienced in their jobs and in life and who trust each other completely. In my view, writing it down would have made not the slightest difference to the outcome in this particular case. Accordingly, the claim made here of an absent practicable step is not tenable in my view. 
[17]
That leaves the second point made by the prosecution that falling object protective structures should have been fitted to this particular piece of equipment. Again the difficulty with that is that the work that Mr Mason was engaged to do was fundamentally work in the open. In relation to the hazardous area, another contractor had been engaged to deal with the hazards and to do the necessary work in respect of that. All Mr Mason was to deal with were the sections of track after removal of the hazards by the other contractor. 
[18]
Nevertheless a plea of guilty has been entered and I accept that there is some substance in the proposition advanced by the prosecution that if your workmen are in the forest, you should have overhead protection as a general proposition. The company have accepted that in their submissions and for the purposes of this sentencing, I consider that it should have been required of Mr Mason that he had overhead protection whenever he went onto a forestry job where there was a risk of overhead objects falling on the vehicle. Here, the risk must have been absolutely minimal, if he had stuck to his instructions, carried out the work that he was engaged to do, in the sequence that he was engaged to do it. He did not. 
[19]
In reaching that conclusion I do not wish in any way to be critical of or belittle Mr Mason. Plainly he was a man who worked hard and he was a man who was clearly very highly thought of by Mr Brown who knew him well. I have little doubt that the relationship between them was such that any agreement reached between then would have been adhered to by both of them to the extent that they could. Clearly Mr Mason has gone into an area that he was not scheduled to go into until the hazards had been removed, and one of those hazards has killed him. 
[20]
So what is the culpability of the company in circumstances such as this. In my view the culpability must be as low as it is possible to get and still infringe the statute. The defendant has pleaded guilty and I accept, for the purposes of assessment, that the lack of the overhead protection is a relevant consideration, a practicable step that was available. But given the work that he was specified to do, there was little, in fact there was no appreciable risk of anything falling on his machine had he stuck to what he was engaged to do. That is no minor point. The statute is clear; the reference is to the work that the contractor is engaged to do. Here, as I have indicated in my view, Mr Mason was acting beyond that. 
[21]
For those reasons, it seems to me, that culpability is as low as it is possible to get under the statute. I am informed that the defendant company carry insurance in respect of reparation. Some reparation has already been paid in the sum of $4000. There is an offer to pay further reparation, but the quantum of such reparation is for the assessment of the Court. 
[22]
Giving the matter the best consideration I can and making the assessment that I am required to make in terms of the steps which Judges are required to undertake in making such assessment, it seems to me that an appropriate reparation sum would be the sum of $30,000. That assessment is made in relation to emotional harm, this is not a case where any assessment is required or could be made for losses of income as the Supreme Court have recently made clear, it is not appropriate for Court to make any award in respect of economic losses in circumstances such as this. Nevertheless Mr Mason was a man with three children and a wife, he was obviously much loved and the loss of their father and husband is as great as any Court could imagine. 
[23]
Looking at the matter overall, it seems to me that the interests of justice would best be served by an award of reparation in circumstances such as these and the imposition of no fine at all. I say that having born steadily in mind the observations in Police v Ferrier (unreported, 18 November 2003, Auckland High Court, CRI-2003-404-195) and in particular the observations of the Full Court in Department of Labour v Hanham & Philp Contractors Limited & Ors (unreported, 18 December 2008, CRI-2008-409-000002, Randerson J and Panckhurst J). That decision is well known to me, I have read it with some care. 
[24]
The issue for me is, how could further workplace harm be avoided in circumstances such as these, if an employee fails to carry out the directions of the employer, that is one thing. It is another thing entirely when an experienced and capable contractor who is a contractor in his own right and who's expertise has been relied upon by a forestry company; in those circumstances it seems to me that the interests of justice do not require any further financial penalty. In the end hazard identification is a process which can only operate where the parties concerned take the time and effort to identify the hazards, to specify means to avoid hazards and take care to ensure that the safety requirements of the particular job are considered and acted upon. 
[25]
Here we have a man in his sixties, who was told not to go to this particular area and that another contractor would do so and he, in breach of that direction, has gone in there out of an excess of zeal and unfortunately that has lead to his death. Quite why that should justify a financial penalty in terms of a fine, is frankly beyond me. I accept that better equipment would have prevented this death, but I must bear in mind that he was engaged not to go to that area until the hazards had been removed. 
[26]
The submissions of the informant that every vehicle requires to be fitted with a falling object protective structure has some substance, but it is clear that such structures are only useful in circumstances where there is the risk of a falling object. Had Mr Mason not been in an area where he was told there was such danger, this could not have occurred and it seems to me there must be some recognition by the Court of the fact that a highly experienced, independent contractor has made his own assessment of risk in association with the person instructing him to carry out the work. The equipment was fit for the work that he was engaged to do. The risk was that he would not do what he was engaged to do, but would take his machine into places that he was specifically told not to. 
[27]
In circumstances such as that, with a man of the age and experience of Mr Mason, I fail to see that there is any substantial culpability which should attach to the defendant company and in my view, there is no case for me to impose any further fine. It would not deter anybody because the person who did what they were not supposed to do, is the unfortunate Mr Mason. 
[28]
For those reasons, I have reached the conclusion that the only penalty which is required, is the penalty of emotional harm reparation in the sum of $30,000 and there will be an order accordingly. 
[29]
That sum is to be paid in full within 28 days. 

From OSH Tracker

Table of Contents