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Safeguard OSH Solutions - Thomson Reuters

Safeguard OSH Solutions - Thomson Reuters



OSH Tracker

Department of Labour v South Road Quarries Ltd (DC, 18/08/10)

OSH Tracker

Defendant:
South Road Quarries Ltd
South Road Quarries Ltd was fined $30,000 under sections 6 and 71(A) after an employee was struck on the head by a rock which fell off a conveyor belt. It had failed to ensure a lockout procedure or ensure the rock crusher was adequately guarded. The company’s sole director Shane Michael Kells was convicted and discharged under s6 (Hawera DC, August 18). 
Industry:
Mining
Sub-Industry:
Metal Ore Mining
Risk:
Struck by falling object
Harm:
Injury
Penalty Amount:
$30000.00
Reparation Amount:
$0.00
Appeared in Safeguard issue 126

Judgment Text

NOTES OF JUDGE R J MURFITT ON SENTENCING 
Judge R J Murfitt
[1]
Comparatively small accidents and oversights have such far-reaching effects, and expensive consequences can follow. In this case South Road Quarries Limited and its sole director, Mr Kells, face charges under the Health and Safety in Employment Act. The company faces two charges and Mr Kells one. 
[2]
Each of the charges which the company faces carry maximum penalties of $250,000. The charges arise from a situation which occurred in October 2009 when Mr Jenkins, an employee of the company, was sent by Mr Kells to clean up a hopper in the quarry at South Road. A latent trap in the operation of the plant lay in the fact there was no isolation of a conveyor belt leading into the hopper from the power supply that operated other areas of the plant. It is apparent that Mr Kells himself had been working in the hopper for an hour while the power supply to the conveyor belt had been switched on, and he later sent Mr Jenkins in to work there as well. 
[3]
This quarry is in the final stages of operation. Its resource consents have expired and in essence it is in the process of being closed down, and so its employment force has reduced to 1.5 man equivalents and Mr Kells himself, of course, is one of those. 
[4]
From some unknown source a rock no bigger than a cricket ball fell onto the conveyor belt while Mr Jenkins was working in the hopper. This rock was conveyed up the belt and fell into the hopper while Mr Jenkins was there. It struck him. Fortunately he has suffered no lasting injury. He was able to remove himself from the hopper. Later he had some minor difficulty with his neck ligaments, but in a heartening display of robustness unlike some other accident victims known to the Court, he has taken a philosophic approach. He is living in Australia. He does not seek to capitalise on this incident by wanting reparation. 
[5]
The cause of the accident is accepted. It occurred because of a significant failure by the company to meet industry standards and isolating the power to this conveyor belt from the power supply generally to the plant. Certainly as Mr McCarthy highlights, there is a significant public interest in emphasising that employers carry a high duty to maintain a safe environment for their employees and other people who enter the workplace. That is why Parliament has increased the level of fines for this type of offence five-fold. 
[6]
I have read the submissions filed by the Informant and those in reply by Mr Parker. Mr McCarthy's ran to 88 paragraphs and Mr Parker supplemented them with another 70. I am reminded of the words of Oscar Wilde when he wrote to somebody apologising for writing a long letter because he did not have time to write a short one. However, I have read the long letters of both counsel. There is, I think, a risk in over-analysing the sentencing process in a case of this type, but ultimately I must exercise a balancing between the purposes of this legislation, any aggravating features, mitigating features, and taking into account the totality of the sentences imposed. 
[7]
In this case, as I have said, there is a significant purpose in the legislation of bringing home to the operators of industrial sites, and indeed any employment site, the need to maintain a safe environment for those who are there. 
[8]
When I look at the circumstances of this failure it is significant, but again in the context of the operation of this business in its closing phases the fact that this plant was effectively past its operational days and was in the process of being closed down, I do not see this particular breach as a severe one. Over the years of operation of South Road Quarries there has not been a similar accident known to have occurred. 
[9]
Mitigating features include that the company and Mr Kells have been very co-operative in the investigation. He, on behalf of the company, has been certainly remorseful and steps were taken to remedy the failure. A switch was installed to enable the conveyor belt to be isolated from other power sources. Written hazard notices have been erected to warn others of potential risks. No significant harm has been occasioned to the employee in this case and that is a factor which distinguishes this case from others in Taranaki, including the Roebuck Cranes case which involved a fatality, and the Ben Hikanui case which involved double amputation. 
[10]
On the other hand, this is not the first occasion that South Road Quarries has been prosecuted. An earlier occasion arose of a prosecution under the Health and Safety in Employment Act when the company was fined $10,000 by Judge Bidois. That was a different type of accident altogether involving a motor vehicle, and while it is an aggravating factor I place it in the context that it did not serve to make the company or Mr Kells more alert in advance to this second accident, or the risks of it occurring. 
[11]
Counsel both agree that in the scale of the guiding case of Department of Labour v Hanham and Philp Contractors Limited & Ors (2008) 6 NZELR 79Has partially negative history or cases citing, but has not been reversed or overruled[Yellow] , this incident should fall into the medium band in respect of which the starting point for appropriate fines falls over $50,000. At the conclusion of his submissions Mr McCarthy urges the Court to look at fine levels in the range of the mid-$70,000. Mr Parker urges the Court to impose a fine in the range of $30,000. 
[12]
Balancing the factors which I have referred to I intend to adopt a start point in this case at $60,000 but to allow, in relation to the overall sentencing exercise for both defendants, a measure of mitigation for the co-operation, remorse and steps taken to immediately rectify the failures of 25 percent. In addition, and in accordance with the decision in R v Hessell (2009) 24 CRNZ 612 (CA)Has partially negative history or cases citing, but has not been reversed or overruled[Yellow]  I must recognise that the company has pleaded guilty at the first opportunity allowing the Informant and the Court to see a clear path through to resolution of these proceedings. I propose to allow a further discount, then, of 30 percent to recognise that fact. 
[13]
On the charge under s 71A of the Act, the company is convicted that being an employer it failed to ensure there were in place effective methods for systematically identifying existing hazards to employees and it is fined $5,000. 
[14]
On the charge under s 6, that being an employee that failed to take all practical steps to ensure the safety of its employee, it is convicted and fined $25,000 and Court costs $130. 
[15]
I accept Mr Parker's submission that to additionally fine Mr Kells, who is the alter-ego of the company, would be to implement double jeopardy. I do not intend to impose further fines and Mr Kells is convicted and discharged. 

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