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Safeguard OSH Solutions - Thomson Reuters

Safeguard OSH Solutions - Thomson Reuters



OSH Tracker

Department of Labour v Harvey (DC, 28/04/10)

OSH Tracker

Defendant:
Ian Harvey
Ian Harvey was fined $5000 and ordered to pay reparations of $50,000 under s19 of the HSE Act following a forestry accident where a man was killed after a tree stump rolled on him. Harvey had been excavating a stump and placed it against a fallen tree on a ridge top. He did not know the other worker was down the slope. Judge C.J. McGuire said Harvey should have communicated what he was doing (Rotorua DC, April 28). 
Industry:
Agriculture, Forestry and Fishing
Sub-Industry:
Forestry and Logging
Risk:
Struck by moving object
Harm:
Death
Penalty Amount:
$55000.00
Reparation Amount:
$50000.00
Appeared in Safeguard issue 123

Judgment Text

NOTES OF JUDGE C J McGUIRE ON SENTENCING 
Judge C J McGuire
[1]
Ian Harvey, you pleaded guilty at a status hearing last year to a charge that on or about 3 February 2009, as an employee, you failed to take all practical steps to ensure no action or inaction of yours, while at work, caused harm to another person, namely Paul Haukamau. 
[2]
You are an employee and director of Forward Planning New Zealand Limited, which was engaged by P F Olsen Limited to harvest trees on the 7635 Rotoiti South Block of the Tarawera forest. The operations involved manually felling trees, and then using a hauling machine, dragging the logs to the hauling landing where the logs were processed. You have over 30 years of forestry experience and you are experienced in operating heavy forestry machinery. 
[3]
The deceased was a fellow employee of yours. He was fatally injured when struck by a root ball, a mass of roots and soil, which is exposed when a tree stump is withdrawn or pushed over. This root ball had rolled down a slope. The root ball had been placed against a felled tree on the ridge edge of a slope by a 40 tonne Volvo excavator rigged for forestry hauling operations, which was operated by you. On the day of the incident, the deceased had been manually felling trees in his assigned area, a small spur which formed the backline of the felling area. The backline is the furthermost boundary of the felling site in relation to the hauling landing. 
[4]
At approximately 10.30 am, the deceased had completed his assigned felling so he called his foreman, Mr Henman, on his RT to discuss how he was to proceed. He was directed to fell an additional triangular strip of trees adjacent to the area he had been felling. The deceased had his lunch on the felling face and then continued felling the additional strip of trees. 
[5]
At approximately 1.00 pm, the hauling crew began hauling logs to the landing. There were approximately 15 logs that needed to be hauled out so the excavator could be positioned on the backline for the hauling operations the following day. 
[6]
At approximately 2 o'clock in the afternoon, the defendant called Mr Henman, using his RT, to enquire whether the excavator should be moved to the position on the backline, and he was directed that it should. 
[7]
The incident happened after you had walked the excavator along the track to the spur that formed the backline. You found there was a large stump where the excavator needed to be positioned and you proceeded to dig out the stump using the excavator and placed the stump, which was now a root ball, against a fallen tree on the ridge top. Unknown to you, the deceased was located down the slope from where the root ball had been placed on the ridge. You then slewed the excavator around and noticed that the root ball had rolled down the spur. You could see the deceased lying on the track, the root ball having created as it rolled through the scrub. An ambulance was called and the deceased was subsequently transported by helicopter to the Rotorua Hospital. Sadly, he died four days later as a result of crush injuries that he had sustained. That is the sad background to this. 
[8]
I have received a lot of assistance. I have received today two further victim impact statements and I have carefully read the victim impact statements that have already been submitted. They eloquently speak of a tragic loss of a wonderful life. They speak with one voice of that and there is nothing that I can say today to add to that. The reports are eloquent and his loss has left a devastating hole in this family. There is perhaps one thing that I do say to the family of the deceased. It is simply this; that your husband, your father, your grandfather, was a wonderful human being, and if he has left a legacy to you, it is about how you should live your lives. Since he died, you have been devastated by grief. You need to draw strength from his example and the way he lived his life. You see, he is gone; the head of your family is gone. His children now need to stand in the breech and follow his fine legacy, and I appreciate, in your grief that is easier said than done, but it must be done for your sakes. 
[9]
Defence counsel has filed an affidavit that is completed by you, Mr Harvey. It is a detailed and careful affidavit and in a way it complements the victim impact statements from the deceased's family, because I accept that you have done your best in the wake of this tragedy to do the right things by the deceased and his family. And indeed, their own victim impact reports focus on their grief rather than any blame of you, and I thank them for that also. 
[10]
Turning now to the question of sentencing, the Health and Safety in Employment Act, which was passed in 1992, was passed by Parliament to raise the game, if you like, of employers, and indeed employees, in the workplace to make those places safer than they had been in the past. And in doing so, Parliament set out an offence regime and appropriately set out substantial financial penalties for those who were found to be liable for breaching the provisions of the Act. Part of the process in doing that was to, as I say, raise the bar and to make it very difficult for any employer to avoid liability where there are actions that could have been taken to prevent harm coming to other workers. 
[11]
Counsel, in their submissions and in discussion this morning, have given their views on where the wrongdoing in this case lies in terms of seriousness or not. I think it is probably common ground that one area that is rightly identified is that there was no contact between you and the deceased, albeit via the foreman or any other way, prior to you digging up this stump that became a root ball that rolled down the slope and fatally injured the deceased. That is something that should have been done and that, I guess, is where the main culpability for you lies. I accept, however, the other information contained in your affidavit that otherwise paints a picture of you of being a very safety conscious person in the way you go about your work. But it is one of these areas, particularly where forestry operations are concerned, which of their very nature are inherently dangerous, given the weight of logs and tree stumps and the heavy equipment and so on that is used, particularly in that area where frankly, there needs to be, on the part of employers and employees alike, a daily review of practices and a daily focus on safety to ensure that at the end of the day, everyone goes home safely. 
[12]
When this matter was discussed prior to Christmas at the status hearing, Ms Driscoll reminds me that a decision in a similar case in Rotorua was referred to, and it is quite plain that in giving the sentence indication that I did at the time, the decision of Judge Rota in Cross's case was prominent in my mind. Ms Driscoll tells me today that your employer has insurance. Your own affidavit tells me that you are not a wealthy man and that you do not earn vast sums of money. 
[13]
Mr Houliston has done some calculations based on Hessell's case, which is a Court of Appeal decision which, helpfully, sets out to Courts like this one how the Judge should factor in matters of mitigation into sentence, albeit that Mr Houliston's calculations are pre dedicated on a very much higher starting point for a fine. 
[14]
I suppose, at the risk of sounding somewhat heretical in terms of what might be described as an established sentencing pattern in these areas, but, nevertheless, supported in this by what Judge Rota did in the Cross case, my focus, rightly or wrongly, is more on a reparation than a fine. And that is because it is plain that the family of the deceased has suffered substantial financial setback as a result of what has occurred, not to say that there should not also be factored in a sum of money for the pure grief of losing the head of a family. 
[15]
So the bottom line today is that I intend to follow through with the sentence indication that I gave last year. The fine that I indicated of $5000 would mean that the starting point before mitigating factors of the relative culpability, the fact that reparation is to be paid and the earlyish guilty plea, would probably have meant, as I say, a starting point of somewhere of between $8000 and $10,000. So the fine today, taking those factors into account, will be $5000. 
[16]
The reparation and emotional harm report from the Community Probation Service indicates an amount of $1800 as the tangible amount related to the accident. That is very much the accountant's dollars and cents figure of tangible financial loss. It does not take account of, in a monetary sense, emotional harm and the fact that major upheavals have occurred in the lives of those who are left behind, and in particular, the deceased's widow. She is faced with having to find increased rent for a house that was the family home, and which she, quite rightly, does not wish to leave, even though it is perhaps somewhat bigger than some would say it needs to be at the moment. But I do not wish to add to her discomfort or grief in anyway. So it is plain to me that her financial losses are going to be ongoing, leaving aside the reparation for emotional harm and grief, and that the ripples of this go out to the wider family as well. 
[17]
So what I propose to do today by way of reparation is to order a figure of $50,000 be paid to the deceased's widow; that is Polly Haukamo. In her wisdom, she may see fit to assist other family members who have suffered as a direct result, but that will be entirely at her discretion. 

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