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Safeguard OSH Solutions - Thomson Reuters

Safeguard OSH Solutions - Thomson Reuters



OSH Tracker

Department of Labour v Alliance Group Ltd (DC, 21/04/10)

OSH Tracker

Defendant:
Alliance Group Ltd
Alliance Group Limited was fined $31,000 and ordered to pay reparations of $20,336 under s6 of the HSE Act after a worker fell while cleaning. The man was employed as a beef trimmer but had secured overtime work to set up the boning room prior to production. Included in those duties was clearing condensation from the ceilings and walls. He stood on the boning stand to mop the ceiling, but in the area of the stand where the sides of beef were entered, which had no handrails. He fell 1.54 m to the tiled floor below, fracturing both his arms, breaking his ribs and cutting his forehead. The DoL said the company had failed to identify that hazard and the gaps between the guard rails could have been narrowed by putting in a moveable guard. 
Industry:
Manufacturing
Sub-Industry:
Food, Beverage and Tobacco
Risk:
Fall from height
Harm:
Injury
Penalty Amount:
$51336.00
Reparation Amount:
$20366.00
Appeared in Safeguard issue 123

Judgment Text

NOTES OF JUDGE K J PHILLIPS ON SENTENCING 
Judge K J Phillips
[1]
The Alliance Group Limited is charged under s 5 and 51A of the Health and Safety and Employment Act 1992 in that it being an employer failed to take all practicable steps to ensure the safety of George Paki, an employee, while he was at work, was not exposed to the hazard of a fall from the beef boning stand in his place of work which was the Mataura Freezing Works. 
[2]
The company, through its counsel Mr Smith, has pleaded guilty to that charge. I must say that I greatly appreciate the written submissions that I have received from Mr Smith for the defendant company and his oral submissions today and the written submissions and assistance from Ms Szeto from the Department of Labour on behalf of the prosecution both written and orally today. A plea of guilty has always been intimated to this matter, back as far as I understand in August when it was really first before the Court. The company has never really tried to get away from the facts as to what occurred in relation to Mr Paki. 
[3]
Mr Paki was employed as a beef trimmer but he managed to secure overtime (I suppose) work setting up the boning room prior to its production commencing. Part of those duties were to clear away condensation from the ceiling and walls in the boning area. The ceiling of the area was some five metres above a boning stand where the boning work would be carried out. Mr Paki would use a mop an extended handle pushing against the ceiling and wiping it along. Whilst he was doing this, of course, in order to keep the mop up on the ceiling and to ensure that it was working and taking away the condensation, looking up as he moved it along. He used the stand which was elevated from the floor to do this. This stand, being the boning stand, had handrails around it but not in a particular area where when the boning stand was in operation where the sides of beef entered on to the stand. On 12 February 2009, at 5.30 am, Mr Paki is gainfully employed in mopping the ceiling, looking up as he moved along and he stepped over the edge because there was nothing there to stop him doing so. There had not been an identification of that as a hazard by the defendant company. Mr Paki fell as a result 1.54 metres to the concrete floor (or tiled floor) below. He suffered grievously by fractures to his left and right arms, broken ribs, a straining right knee and cuts to his forehead. 
[4]
The Department of Labour, as the prosecutor, says that the company failed to identify the hazard of a fall in the manner that occurred to Mr Paki. It could have easily done so, says the Department, by narrowing the gap between the guard rails which were around the stand, by putting in a moveable guard to eliminate the gap and to change the cleaning process. 
[5]
All of the documentation that has been put before me shows that the company, acting in its safety driven manner, had identified the risk of falling from this stand but not the risk of anyone falling from this stand during the cleaning process. It never identified that as being a risk to Mr Paki or any other person who did that. The prosecutor, through Ms Szeto, says the company should have identified that hazard and managed it appropriately or fencing or guarding the hazard during the cleaning process by (as I have already said) changing the process, wiping the ceilings from the position on the floor, putting a safety chain across the gap or the narrow gap in the perimeter fence. That is really what we are here today because the company has, by its plea of guilty, accepted that it failed to take all practicable steps as detailed. 
[6]
The victim impact statement of Mr Paki establishes that he is 65 years of age. He had fractures to his upper arm and fracture to his lower left arm, lacerations to his forehead and the injury to the right knee that I have already described. The accident occurred on 12 February. He managed to return to light duties in April 2009; full trimming duties in June 2009. It shows that he continues to suffer, however, in pain at night and also in similar matters he has a loss of confidence, he has this “dickey” knee and wrist as a result of the accident. His left arm becomes swollen. He has troubles, and he encounters it normally at home, in being able to start motors by pulling cords, such as on a lawnmower et cetera. Mr Paki is an experienced shearer and also gained income at weekends by shearing. Because of his injuries that is no longer available to him. He had incurred costs in accommodation and taxis. He says that he has now become short-tempered, has headaches and he is worried about his future in relation to matters of arthritis and ongoing difficulties as a result of the accident. 
[7]
As I have said I have had detailed submissions from both sides. In dealing with the informant's submissions the first matter that I mention and accept is the object of the act, that is the Health and Safety and Employment Act 1992, that is to promote the prevention of harm to all persons at work. That casts a positive duty on employers to seek out, to identify hazards and to eliminate, isolate and minimize significant hazards and promote safety in the workplace. Here, says the informant, that failure to do this was fundamental. 
[8]
Ms Szeto refers to the cornerstone of prosecutions in this field, the decision in Hanham v Philp Contractors Limited. What I am required to do is assess the quantum of the reparation, assess the quantum of the fine and then to stand back and have regard to the impact of the reparation and fine together, to consider whether that is an appropriate response to the failure as detailed and complained of in the information. 
[9]
There is no argument here that there has been an economic loss suffered by Mr Paki of $336. That will be awarded to him. 
[10]
I have read the cases that Ms Szeto has put before me where assessments have been made where injuries include fractures. I have had regard to the matters that I have already detailed from the victim impact statement as to the emotional harm matters. I am awarding Mr Paki emotional harm reparation in the sum of $20,000. 
[11]
I note the matters that are discussed in the submissions from the Department through Ms Szeto and the comments made in the ruling of Hanham. I have regard to s 7 of the Sentencing Act factors of accountability, sense of responsibility, denunciation and deterrence when having regard to quantum of a financial penalty. I must also have regard to however the degree of culpability, the seriousness of the omission and the impact or effect of the offending. I accept at once that any fine that I impose in this situation must have a “bite”. It must have that as a concept or ingredient within it so that the company brings its mind sharply to focus and identification of any possible hazards. 
[12]
There is, in my view, an aspect in calculating quantum of assessing the general and particular deterrence required. Indeed I must take note that the legislature has seen fit to have made a major advance in the maximum penalty in this type of offending which now stands at $250,000 as a maximum penalty thus showing that the legislature has shown to the community, and thus to the Courts, that Court and a Judge (such as I) in assessing penalty must take into account the large maximum penalty detailed by Parliament. 
[13]
When I look at the questions of culpability I have regard to the obviousness of the hazard in relation to a fall. There is no question here really raised by the informant that the defendant company had identified falls as a hazard in its workplace. But what it had not done is identified here that there was a gap in the handrails of such a kind and a nature that a person cleaning in the way Mr Paki did the cleaning could easily fall and thus a hazard could easily have been identified. It is clear that Mr Paki suffered serious harm (fractures to his arms) and in my view that serious harm is above being described as moderate harm. 
[14]
I have a read a body of information put to me by both sides about hazards of a fall, industry standards and so forth, perimeter fencing and so forth and the isolation of persons from the hazard by fencing. It is accepted by the prosecution that it was not possible to have a permanent perimeter guard over this particular area. Indeed when the boning table is in operation there is no need to have any form of perimeter guard there at all because there are sides of beef coming through the gap itself. It is an issue to relating to when the cleaning process is operating that a fence or guard is required. 
[15]
Ms Szeto, in her submissions in writing, said this occurred two times a day but the process in fact was once a day in the morning. In my view here because 5.30 am or thereabouts, Mr Paki with a mop on an extended handle, walking along the boning stand and the gap not being fenced and thus falling and injuring himself, was a hazard that could have easily been identified if the attention of the relevant safety officers of the defendant company had had regard to it. 
[16]
The other issue put to me by the prosecution is in relation to prior convictions of the defendant company. There is no argument that the Mataura plant of the defendant company has had three convictions in relation to matters involving this Act. There is no argument that overall (I think eight plants that the company operates throughout New Zealand) there have been 10 convictions all over a number of years. 
[17]
Mr Smith, in addressing this issue on behalf of the defendant company, makes out the point that when one has regard to the large number of employees of the defendant company, the nature of the workplace itself, that one must have and take into account in assessing what degree of culpability because of prior sentencing should be taken into account, that a Judge must take into account also the nature of the operation, the number of employees and the workplace itself. He would say that the Mataura plant, operating since prior to the turn of the 20th century, having had three convictions of this kind shows a good record rather than a poor record. 
[18]
Ms Szeto, on behalf of the Department, says that in her view the level of culpability of the company is at the top end of the medium culpability band identified in Hanham. Although she accepts that there has been remorse and co-operation, that the company is entitled to a 33 percent reduction from a starting point because of its early plea of guilty and to a reduction because of reparation, at the end of the day there should be, because of aggravating circumstances relating to the prior convictions, an uplift of 20 percent. Mr Smith, on behalf of the defendant company, has in his submissions argued that the matter falls in the low band of Hanham
[19]
When the matter was first called this afternoon (because I was involved in another matter in Court) Mr Smith and Ms Szeto had time to talk. As I understand what has been the result is that Mr Smith has accepted that the offending falls in the medium band but at the lower end of that band (as again assessed in Hanham). So the difference between the two parties is not the band, it is the position in the band which I have to assess through the matters of culpability. 
[20]
I have regard (when I have regard to the issues that are before me for decision) to the following matters when I assess culpability. It is clear to me that the defendant company has put in place a significant process of eliminations of hazards. As Mr Smith appropriately put it in his oral submissions today, it is working towards being perfect but in this type of industry the arrival at a state of being perfect is a continuing moving facet. However, the company is and has put in place audit systems, reporting systems, meeting, officers, training of staff and other similar such matters that relate to its attitude to its plant being a safe place for workers to work in. I accept that submission. 
[21]
I also accept from Mr Smith that I have to take into account the nature of what the hazard was, that was that it was a hazard to the cleaner, and a small number of persons were exposed to the hazard prior to the production commencing when the hazard in fact disappeared. I accept that it was not a cavalier disregard by the company of its responsibilities. 
[22]
I note with interest the submission Mr Smith that for the period 2005 through 2009, in Accident Compensation Corporation relation information, there has been a reduction in injuries in this plant of 30 percent. Mr Smith would assess that this should, in the medium level band of Hanham, be at the lower end of that band and the company should be given recognition of what it does in the field of safety. 
[23]
I go back to what I have said earlier — at the end of the day when one comes to do the assessment that is required for the purposes of this sentencing exercise there was a hazard in existence. It was a hazard to Mr Paki. It had not been identified by the company albeit that it was available for identification. It was a hazard that was there during the cleaning process and has now been rectified by actions taken by the defendant company in relation to the installation of rails that narrow the gap, by installation of a longer extended deck and by the installation of a chain which comes into place once production is completed. I have regard to all those factors. 
[24]
In my view I assess the culpability here of the company as moderate, but at the lower end of the medium range. In my assessment an appropriate starting point for the fine would be the sum of $55,000. The company, as I have said, is allowed one-third for its guilty plea (i.e. $19,000), then I bring the figure to $36,000 accordingly. I am awarding reparation and I allow 15 percent as against the $55,000 in relation to reparation ($8,255) a total of $27,745. However there are prior convictions. In my view there must be an uplift for those prior convictions. My end point in relation to the matter is a fine of $31,000. I then stand back as I am required to do and have regard to the overall position. If I am correct in my assessment of the monetary penalty at $31,000 overall the total imposed is a sum of $51,000. When I consider the position and have regard to what counsel have told me, both in writing and orally today, I am of the view that appropriate reflects the level of culpability. 
[25]
Accordingly, I deal with the matter in this way — the company is convicted on the charge it faces. 
It will pay economic reparation to Mr Paki in the sum of $336. It will pay that sum by 30 April 2010. 
It will pay emotional harm reparation to Mr Paki in the sum of $20,000. It will pay that sum in a lump sum no later than 30 April 2010. 
It will pay, by way of monetary penalty, the sum of $31,000 and Court costs $130. 
There are no issues as costs. 
[26]
Again I thank counsel who have been of major assistance to me. 

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