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OSH Tracker

Department of Labour v Transpacific Industries Group (NZ) Ltd (DC, 12/03/10)

OSH Tracker

Defendant:
Transpacific Industries Group (NZ) Ltd
A rubbish collection company, fined over a rubbish runner’s 
death, had failed to set in place a system where rubbish should 
only be picked up from the side of the road the truck is on. 
Transpacific Industries Group (NZ) Ltd was fined $60,000 and 
ordered to pay $80,000 reparations after being charged under 
section 6 of the HSE Act ( Dunedin DC, March 12). 
In February last year a rubbish runner was hit by a van while 
he was collecting bags on roads in the Taieri Plains. At an intersection 
the man had crossed the road diagonally to pick up some 
rubbish on the right-hand side of the road and did not see a van 
which hit him. He later died in hospital. 
Transpacific acknowledged it failed to identify hazards on that 
particular stretch of road, and did not at the time have a policy 
that rubbish be collected from the left hand side. It failed to 
systematically identify and consider roads with respect to traffic 
volume and speed, and record that as part of a comprehensive 
and explicit traffic management plan in relation to its rubbish 
collection in Dunedin. 
Judge Stephen Coyle said the company had not met an industry 
standard of best practice, despite being on notice for a similar 
incident. 
Judge Coyle said the company was aware of the nature and 
severity of harm which could result from runners being hit by 
vehicles, and there was clearly a means available to avoid such 
a hazard. 
He accepted that the implementation of a left-hand side of the 
road policy would have a significant financial implication for the 
company, but also said Transpacific had made such a change “far 
more complex” than it should be. “I would have thought it was 
a relatively simple process by simply telling residents that from 
a certain date the rubbish collection will be from the left-hand 
side of the road.” 
The victim’s family and Transpacific had participated in a 
restorative justice conference. Transpacific had offered counselling 
to the family, along with financial and other assistance including 
domestic help to the mother. It had also offered to sponsor a trophy 
for the Caversham Harriers Club in recognition of the man’s 
passion for running, and his involvement with the club. 
Industry:
Transport and Storage
Sub-Industry:
Road Transport
Risk:
Vehicle - road (eg truck, car, bus)
Harm:
Death
Penalty Amount:
$140000.00
Reparation Amount:
$80000.00
Appeared in Safeguard issue 124

Judgment Text

NOTES OF JUDGE S J COYLE ON SENTENCING 
Judge S J Coyle
[1]
On 5 February 2009, Andrew Sime left for work. He lived at home with his mother. He yelled out as he left, “Love you, mum. See you after work.” He never returned home. He died when he was hit by a van while working as a rubbish contractor. 
[2]
Transpacific Industries Group (NZ) Limited were Mr Sime's employer. The company has pleaded guilty to a charge of failing to take all practicable steps to ensure the safety of an employee, which carries a maximum sentence of a $250,000 fine. In his submissions Mr Robinson accepts that a conviction can properly be entered and the company is today duly convicted. 
[3]
The company therefore appears for sentence today in relation to that charge. For Mr Sime's family, today is part of the justice process but I acknowledge that what I do today will not bring your son and brother back. It will not fill the void that is left in your lives. I am sure that you will agree that no amount of money is ever going to compensate you for your loss or sufficiently punish Transpacific. 
[4]
Mr Sime's job involved him collecting rubbish and recyclable materials from the side of the road, picking them up and placing them in a truck. It is a job which requires fitness and, given the presence of other traffic on the road, skill and caution. 
[5]
I am told today by Mr Robinson, on behalf of the company, that Mr Sime was a valued employee. He was well liked, highly respected and was a trainer for other runners. Other staff talked about him as being someone who was committed to safety in his workplace and someone who looked out for himself and his fellow employees. 
Facts 
[6]
On 5 February 2009, the truck that Mr Sime worked on was collecting rubbish in the Riccarton Road and Dukes Road area on the Taieri Plains. Around midday the truck approached the intersection of Dukes Road and Riccarton Road. The truck turned left into Riccarton Road and as it did so, a van approaching along Riccarton Road slowed down. The speed limit on that stretch of road is 80 kilometres per hour. As the truck turned left Mr Sime jumped off the back of the truck and went across the road diagonally to pick up some rubbish on the right-hand side of Riccarton Road. Mr Sime did not see the van. He was hit by the van. The driver similarly did not see him until it was too late. At the time it is estimated the van was travelling at around 60 kilometres per hour. Mr Sime was extensively injured, particularly to his head. The injuries were so severe that he later died in hospital as a result of those injuries. 
Impact on Victims 
[7]
I have before me today the victim impact statements from his mother, Mrs Sime, his brother, Wayne, and his sisters, Suzanne and Marnie. Mr Sime's mother's world fell apart on 5 February 2009. Mr Sime lived with her, helped her out financially and practically around the home and had promised to look after her throughout her life. She initially was told her son had a broken leg and it was only when she arrived at the hospital that she learned the awful truth. She describes at that point her world going crazy. Courageously, in my view, she then had to make the difficult decision of whether her son's organs were to be taken and donated to others. 
[8]
She understandably has felt rage and hate towards Transpacific. For a month afterwards she could not return home and could not face seeing or entering her son's bedroom. She has had to put her house renovations on hold. In September of last year she suffered a serious heart attack. Whether that was caused by the stress of the accident or through other factors, I do not know. I put that to one side. She tells me she will never get over her son's death. Her one solace is the knowledge that there are now five people around New Zealand alive today because they have her son's organs which have given them new life. 
[9]
Mr Sime's brother, Wayne, in his victim impact statement talks of the horror of seeing his brother's injuries. He is bewildered by the loss of a brother that he was clearly close to. He has agonised as he has watched the effects on his mother. There is a sense of loss of shared dreams and future plans that he and his brother had which have been destroyed and a hole now exists in his life. He feels aggrieved and overlooked by the company and bewildered why it took the death of his brother for changes to workplace safety to be instituted, a sentiment which has been echoed today by other family members. 
[10]
Suzanne Sime's life has been ruined in her mind. She has spent a lot of time crying. She is still not over her brother's death and not only have her children lost an uncle but she grieves that her granddaughter has never got to meet her great uncle. She too talks of a sense that part of her mother has died through the death of her brother. As a consequence of the accident, Suzanne lost her job as she was simply bereft at the loss of her brother and is now in receipt of a sickness benefit. She says she has no motivation and can see no way out of the black hole of grief and despair that she is in at present. 
[11]
Mr Sime's sister, Marnie, has similarly provided a victim impact statement which expresses similar sentiments to those I have already referred to. She talks of feeling empty, of her heart being ripped out leaving her numb and of her being lonely and extremely distraught. Her daughter has also suffered at the loss of her uncle and is engaged in a manner of dealing with that grief, which has caused Marnie a lot of grief herself. She too expresses some disquiet that it has taken the death of her brother before, in her opinion, the company have begun adequately addressing their safety concerns. She expresses a view that if the company had done that then her brother would still be with her. She similarly talks of the effect on her mother and the wider family. 
[12]
A sense I also get from all the family when I read their victim impact statements is that Mr Sime's death is constantly brought to their consciousness as they regularly see Waste Management trucks around Dunedin. Marnie in particular talks of looking out on the trucks for her brother but not seeing him. 
[13]
I mention those victim impact statements firstly because there are victims of this offending and they deserve to have their views and pain squarely confronted by the Court and the defendant company. Secondly, in terms of the sentencing process that I need to undertake, I need to consider their views and the effects that this offending has had upon them. 
Restorative Justice 
[14]
The Sime family and Transpacific have participated in a restorative justice conference. I accept without question that Transpacific's motivation for attending that conference was genuine in an effort to confront the Sime family and try and bring some sense of healing. 
[15]
The company has offered a means of moving forward and there has been some discussion, although agreement has not been finally reached on the exact details. Transpacific have: 
a)
Put forward an offer for counselling for family members which is expected to cost around $5000 
b)
Offered to consider paying for the conversion of Mrs Sime's bathroom with an estimated cost of between $17,000 and $20,000 
c)
Offered to assist Mrs Sime with domestic assistance if inadequate services are going to be available to her within other avenues that she can explore 
d)
Offered to provide wheelie bin rubbish collection service for Mrs Sime while she resides at her current address 
e)
Offered to fund a plaque for Mr Sime's headstone which is estimated to cost around $1000 
f)
Lastly, but equally as significantly, they have offered to sponsor a trophy for the Caversham Harriers Club in recognition of Mr Sime's passion for running and his involvement with that club. The estimated cost is around $1500. 
[16]
Transpacific, in pleading guilty, has acknowledged that it failed to identify hazards on the particular stretch of road upon which Mr Sime's died. It acknowledges that it did not have in place a policy that rubbish would be collected from the left-hand side of the road at the time of Mr Sime's death. It also acknowledges that it failed to systematically identify and consider roads with respect to traffic volume and speed and to record this as part of a comprehensive and explicit traffic management plan relating to its rubbish collection in Dunedin. 
[17]
Ms Szeto, in her submissions, has reminded me of the purposes that are set out in the Act. In particular she has referred me to the Central Cranes Limited v Department of Labour decision where the Court of Appeal said: 
“It is clear that the Act adopts a preventative approach to maintaining and promoting health and safety in the workplace. Its principle object is to provide for the prevention of harm. To achieve this object employers are required to promote safety in the workplace and both employers and others associated with the workplace are subject to the duty to take all practicable steps to ensure such safety or ensure that employees and others in the workplace are not harmed. ”
[18]
The approach I need to take on sentencing is set out in the Department of Labour v Hanham and Philp Contractors Limited and Ors, a decision of the full bench of the High Court. Both counsel have referred me to this decision and, as Mr Robinson has submitted, both counsel agree on the approach to be taken. Firstly, I need to fix the level of reparation. Secondly, I need to fix the amount of a fine. Thirdly, I need to stand back and make an overall assessment of the combined effects of reparation and a fine taking into account the circumstances of the offending and the offender. 
[19]
As the High Court said in the Hanham decision, reparation is compensatory in nature and is designed to recompense an individual or family for loss, harm or damage resulting from the offending. On the other hand, a fine is essentially punitive in nature involving the imposition of a pecuniary penalty imposed by and for the State. A fine is intended to serve the statutory purposes of denunciation, deterrence and accountability. Each requires separate attention in the sentencing process. 
Reparation 
[20]
Reparation is a factor that I need to take into account in terms of ss 7(1)(a) and 7(1)(d) of the Sentencing Act 2002. I agree with Mr Robinson that ss 7(1)(a) and 7(1)(b) are not relevant to a sentence of reparation. A sentence of reparation is provided for in s 32 of the Sentencing Act 2002, It clearly envisages the ability, pursuant to s 32(2), to impose reparation in respect of emotional harm but only in relation to victims of offending. In the context of this case it is clear to me, pursuant to the definition of ‘victim’ in s 4 of the Act, that the victims of this offending include not only Mrs Sime but also, pursuant to subs (4), Mr Sime's siblings as well. 
[21]
The loss here is quite squarely the death of a loved son and family member and no amount of money will ever compensate for the loss felt by Mrs Sime and her family. As Judge Kiernan noted in Department of Labour v the Sir Edmund Hillary Outdoor Pursuit Centre decision, a decision arising out of the tragic death of the students in the Mangatepopo Gorge: 
“No price can be placed on a life lost. It would be abhorrent to calculate in dollar terms the cost to each family of a loved one … Reparation orders in other fatality cases are really of little assistance. ”
[22]
In this case the loss felt is clearly an emotional loss but also financial in that Mr Sime was a contributing financial member of Mrs Sime's household. That is, in my view, recognised by Transpacific in their offer in terms of the restorative justice conference to assist with the renovation of part of Mrs Sime's home and to assist with other matters which clearly are financial in nature. 
[23]
In assessing the amount of reparation that I intend to impose, I need to take into account the offers made in the context of the restorative justice conference. Also, as submitted by Mr Robinson, Transpacific have contributed around $5000 towards the funeral and other expenses relating to the wake following the funeral and have paid that amount for the family. Fixing of reparation is no science and it is purely discretionary. 
[24]
Transpacific submits an appropriate figure is $50,000 which it sees as incorporating payment of the restorative justice conference proposals which in my calculations are around $30,000 (in the known and at this point in time quantifiable figures) but is in addition to the $5000 already paid by way of funeral expenses. 
[25]
In assessing the issue of quantum for reparation and in exercising my discretion, it is my view that I can take into account the financial position of the company. That can be contrasted with the Outdoor Pursuits Centre case which are clearly, on the facts of that case, in a less than healthy financial situation. That is not the case in this matter before me today. I note that in the Outdoor Pursuits Centre case, reparation of up to $60,000 was imposed for families who lost loved ones in that tragedy. 
[26]
I have decided that the sum of $80,000 should be payable by way of reparation. In fixing that figure I take into account the offers made during the restorative justice conference and I see that that figure incorporates payment of those monies. It excludes the amount paid already by the company for the funeral expenses. Adopting the approach in the Outdoor Pursuits Centre case, I apportion the reparation as follows: 
a)
$50,000 is payable to Mrs Sime, the mother of Mr Sime. 
b)
$10,000 is to be paid to each of his three siblings. 
Fine 
[27]
Turning now to the issue of a fine. The fine, as Ms Szeto has submitted, has relatively recently been increased by Parliament from $50,000 to $250,000. That clearly reflects the importance that Parliament sees in employers acting responsibly in terms of their obligations under the Act. In terms of the Sentencing Act 2002 and the s 7 principles, I need to take into account the need for the company to be held accountable and responsible under ss 7(1)(a) and 7(1)(b) of the Act and for there to be denunciation and deterrence under ss 7(1)(e) and 7(1)(f). Given the matters that I have heard today as to industry standards and guidelines which appear to not be universally followed, in my view there needs to be a wider public denunciation and especially a deterrent aspect to this sentence so that, as the family have so eloquently put it for me, the death of Andrew Sime is not in vain and no other family have to go through what this family has had to endure. 
[28]
In terms of s 8, I need to take into account the gravity of the offending, the seriousness of the offence and the effect of the offending on the victims. As I have already mentioned, I also need to take into account the remorse of Transpacific Industries and their offers of restitution. There are no tariffs in relation to this type of sentencing. The approach is set out in the Hanham decision which endorses the Taueki approach of firstly a starting point then either an uplift or a decrease for the aggravating and mitigating circumstances of both the offence and the offender and then a Hessell discount for a guilty plea. 
[29]
In terms of a starting point, the High Court has identified three categories. The first is low culpability with a fine of up to $50,000. The second is a medium culpability with a fine between $50,000 and $100,000. The third is a high culpability with a fine of between $100,000 and $175,000. The Court recognised that there will be exceptional circumstances in cases where an extremely high fine of between $175,000 and $250,000 is imposed. 
[30]
The disagreement today in the submissions I have received is as to classification with Ms Szeto on behalf of the Department submitting that this is a matter which falls within the high category range and Mr Robinson on behalf of Transpacific submitting that this is a matter that falls within the medium culpability. 
[31]
In assessing culpability, I need to have recourse to the following factors. Firstly, I need to identify the operative acts and omissions that are in issue. They have already been referred to me in that Transpacific have accepted that it failed to identify the hazards on the particular stretch of road upon which the accident occurred. Secondly, it failed to have in place a policy that rubbish would be collected from the left-hand side of that road. Thirdly, it failed to systemically identify and consider roads with respect to traffic volumes and speed and record this in a comprehensive and explicit traffic management plan relating to its rubbish collections in Dunedin. 
[32]
The next is an assessment of the nature and seriousness of risk of harm occurring as well as the realised risk. In the context of this case it is accepted that in terms of harm occurring Mr Sime's injuries were fatal. This places the matter at the high end in terms of this assessment. What is in dispute is the assessment of realised risk. 
[33]
Ms Szeto, in her submissions at paras (56) through to (69), refers to industry guidelines and practice which are in the public domain and specifically deal with the issue of collection from the left-hand side. In particular she refers to the document Health and Safety Issues in the Solid Waste and Resources Industry of May 2007 which at para (20.3) has reference to undertaking collection from the left-hand side of the road. She also points out that in relation to that and the Health and Safety in the Waste Industry Strategy of October 2006, the health and safety and environmental manager of Transpacific's parent company wrote the foreword to both of those documents. Clearly in my view the risks were high and should have been known for people working on roads with traffic moving at speeds of up to 80 kilometres per hour. 
[34]
The company in response points to several factors including its health and safety policy which had been recently communicated to all employees, including Mr Sime in the month before his death. It acknowledges that systemic identification had not occurred in relation to all streets in the collection route but submits that a process was underway and that the company was in the process of implementing the left-hand collection requirement as its standard norm. 
[35]
Mr Robinson submits at para (42) that the company believes that the systemic identification of hazards in relation to all streets in the collection routes has more complexity than the Department submits and that this is particularly so given the topographical features of Dunedin City. However, Mr Robinson also acknowledged that Riccarton Road is currently in the media because of debate as to whether it should be widened because of its narrowness. 
[36]
It seems to me that the company is making a move to left-hand side of the road collection far more complex than it should be. I would have thought it was a relatively simple process by simply telling residents that from a certain date the rubbish collection will be from the left-hand side of the road and if their bin is not on the left-hand side of the road their rubbish will not be collected. In reply Mr Robinson submitted that an unnamed local body in New Zealand has declined a contract that Transpacific tendered for on the basis that they had such a requirement. This to my mind is slightly different because it is an existing contract and such explanations cannot take away from the fundamental obligations in the Act for employers to do whatever it takes to put in place a safe working environment for employees. 
[37]
The next issue is the departure from industry standards and I have already in part referred to that issue in my earlier comments. It is clear to me that the industry standards set in place a left-hand side of the road collection as best practice. Given the type of road and the speeds on that road, I would have thought it incumbent on Transpacific to move as speedily as possible towards a left-hand side of the road collection. I take into account that they were in the process of that occurring but the simple reality is, as they have accepted with their plea, they have failed to comply with their obligations in terms of the Act and they have fallen short of an applicable and appropriate standard. 
[38]
The next issue is the obviousness of the hazard. Clearly it is a known hazard as it is a hazard that is clearly spelt out in policies and practices which existed within Transpacific at that time. In terms of industry standards, death is a known and highlighted hazard for rubbish runners. 
[39]
In addition, in my view it is significant, as submitted at para (74) of Ms Szeto's submissions, that in June 2008 a rubbish runner working in Fitzroy Street suffered bruising when he was crossing the road and was struck by the side mirror of a passing vehicle. That is, Transpacific had already had an experience of an incident in which a runner crossing the road collecting rubbish on the right-hand side of the road was struck by a vehicle. It is my view that at that point in time it became incumbent on Transpacific to put in place a left-hand side of the road rule in accordance with the industry standards. 
[40]
The next issue I need to consider is the availability, cost and effectiveness of the means necessary to avoid the hazard. There is some dispute in that with the company estimating it will cost around $450,000, in large part occasioned by more driving needing to be undertaken. I accept that implementation of a left-hand side of the road policy is going to have a significant financial implication on the company. 
[41]
The last two issues are really interrelated and that is taking into account the current state of knowledge of the risks and the nature and severity of the harm which could result and the means available to avoid the hazard or mitigate the risks of its occurrence. Again, those are issues that I have already referred to in terms of the industry standards. Again, Transpacific was on notice, given the previous incident, of the nature and severity of harm which could result to its runners and there was clearly a means available to avoid the hazard or mitigate the risk of its reoccurrence in terms of the industry standards. 
[42]
As I indicated at the outset the High Court in the Hanham decision have put in place three categories. They are not clearly set in concrete but really serve as guides to the Court. I have reached the view that in relation to this offending the culpability is at the lower end of the high culpability range. In terms of a fine, I therefore believe the starting point to be $110,000. 
[43]
It is accepted on behalf of the Department that there are no aggravating features in relation to the offending and Mr Robinson sets out in his submissions the mitigating factors which he urges me to take into account. They are the defendant's ongoing commitment to safety, remedial action following the accident and in particular implementing a left-hand side of the road collection more broadly than it had previously, that knowledge gained from the incident will be made available to the wider industry, the efforts made by Transpacific to assist the family of Mr Sime including the restorative justice conference proposals and their favourable safety record. 
[44]
It is true that this is the first offending for this company in that it has no previous convictions, but in my view I am entitled to take into account the previous incident in assessing the safety record. Those mitigating factors clearly justify a discount. 
[45]
In addition, it is accepted on the facts of this case that the Hessell decision of the Court of Appeal requires a full 33 percent discount to be undertaken for the entry of the guilty plea at the earliest opportunity. While Mr Robinson points to the remorse, which I accept on behalf of Transpacific is genuine, the Hessell decision. makes it clear that concepts of remorse and discounts for remorse are incorporated into the early guilty plea discount. In addition, in accordance with the Hanham decision, a further discount of between 10 and 15 percent is allowed for the reparation that is to be imposed. In this case, given the quantum of reparation, the full discount should be applied. 
[46]
I am then required to stand back and examine the implications of the fine and reparation in the totality of all matters. Taking into account the sentencing purposes and principles in the Sentencing Act 2002, and the combination of the fine and the reparation, I have reached the view that subject to some minor adjustment the combined effect is not disproportionate in the circumstances to the offending. 
[47]
In relation to the charge that Transpacific Industries. Group (NZ) Limited failed to take all practicable steps to ensure the safety of its employee, Mr Sime, the company is accordingly convicted and fined $60,000 and ordered to pay reparation in the sum of $80,000 in the proportions that I have previously indicated. 
[48]
To the Sime family, I want to say thank you for coming. I know this has been very difficult for you and I know what I have done today is going to do nothing to bring Andrew back. I wish you all well in the future. I know it will be difficult for you but I wish you all the best. 

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