Skip to Content, Skip to Navigation
Advertisement

Safeguard OSH Solutions - Thomson Reuters

Safeguard OSH Solutions - Thomson Reuters



OSH Tracker

Department of Labour v Silver Fern Farms Ltd (DC, 10/02/11)

OSH Tracker

Defendant:
Silver Fern Farms
Silver Fern Farms was fined $40,500 and ordered to pay reparation of $20,000 under s18(1)(a) of the HSE Act after the employee of a contractor had her arm caught in an infeed conveyor. The employee was attempting to clear grease from an exposed roller when her latex glove got snagged. She suffered a compound fracture to her forearm and degloving injuries. The company had not identified the exposed rollers as a hazard, and the conveyor was not adequately guarded ( Wanganui DC, February 10, 2011). 
Industry:
Manufacturing
Sub-Industry:
Food, Beverage and Tobacco
Risk:
Machinery (trapped, crushed, cuts)
Harm:
Injury
Penalty Amount:
$60500.00
Reparation Amount:
$20000.00
Appeared in Safeguard issue 128

Judgment Text

RESERVED JUDGMENT OF JUDGE CHRISTINA INGLIS 
Judge Christina Inglis
[1]
The defendant company, Silver Fern Farms Ltd, pleaded guilty to a charge of failing to take all practicable steps to ensure that no employee or contractor was harmed while doing work. The maximum penalty for such an offence is a fine not exceeding $250,000. 
[2]
The charge relates to an accident that occurred earlier in 2010, on 19 January 2010. The company is a meat product manufacturing business, which owns a plant in Taranaki. The victim was an employee of a company contracted to provide cleaning services to the defendant company. The victim's hand got caught in the roller of an in-feed conveyor while she was cleaning the machinery, and she suffered serious harm as a result. 
[3]
I have read, and listened to, submissions made on behalf of both parties. 
[4]
There is no dispute as to the approach the Court should take on sentencing. In Department of Labour v Hanham & Philp Contractors Ltd, HC Christchurch, 18 December 2008, the Full Court of the High Court held that the Sentencing Act 2002 is the primary consideration but is informed by s 51A of the Health and Safety in Employment Act. That provision sets out sentencing criteria for prosecutions under the Act. The Court is to adopt a three-step approach: assessing the amount of reparation; fixing the amount of the fine; and making an overall assessment of the proportionality and appropriateness of the total imposition of reparation and the fine. 
Step 1: Assessing Quantum of Reparation 
[5]
It is clear from the victim impact statement that the offending has had a significant and lasting impact on the victim. She now has a disfigurement that she will carry for the rest of her life. She requires ongoing rehabilitation and the effect on her has been significant. 
[6]
The informant submits that an order of $20,000 emotional harm reparation ought to be made, referring in support to a number of other cases involving similar injuries. The company accepts that figure as appropriate in the circumstances. 
[7]
I consider that $20,000 reparation by way of emotional harm payment is appropriate having regard to the matters before me, including the victim impact statement, which details the effect of the offending on the victim. 
Step 2: Assessing Quantum of Fine 
[8]
The purposes for which a fine is imposed by the court is different from the purposes underlining an order of reparation (which is compensatory in nature). In this case, a fine is warranted in particular to address denunciation, deterrence (both general and specific) and holding the defendant company accountable for the harm done. 
[9]
In establishing the amount of the fine to be imposed, a starting point is to be fixed having regard to the circumstances of the offending and then adjusting that starting point upwards or downwards for aggravating and mitigating factors relating to the offender1
| X |Footnote: 1
Hanham [50] 
. Three broad categories apply for establishing starting points based on the level of culpability for the offending: low culpability - a fine of up to $50,000; medium culpability - a fine of between $50,000 and $100,000; high culpability - a fine of between $100,000 and $175,000.2
| X |Footnote: 2
Hanham [57] 
 
[10]
It is accepted that there were a number of steps that the company failed to take, including failure to identify the exposed rollers of the conveyor belt as a hazard. Nor was the conveyor adequately guarded, as the rollers were exposed. As the informant says, a guard would have prevented the machine from operating once the guard was removed. The informant submits that the company failed to maintain guarding in line with the relevant industry standards, including Departmental guidelines which state that every dangerous part of any machinery should be securely fenced, unless it is in such a position, or of such construction, as to be safe to every person as it would be if securely fenced. 
[11]
There is no doubt that the victim has suffered serious harm — compound crushing to her right forearm, de-gloving and fracture injuries. She has had to endure five operations on her arm, requiring lengthy periods of hospitalisation. Her ability to enjoy life, including simple pleasures such as playing ball with her son, has been adversely affected. Her arm is severely and permanently disfigured and there has been a loss of movement in it. 
[12]
The company submitted that while trapping points for manned stations are well known, that is not the case for unmanned stations. It was further submitted that the circumstances surrounding the offending in this case can be contrasted with those that arose in Department of Labour v Insulpro Manufacturing Limited DC Dunedin, 27 April 2010, Judge O'Driscoll (relied on by the informant). In Insulpro an employee's hand became trapped in a conveyor in a working production line, where a guard had been broken some two years earlier and which had not been replaced. The Judge found that there was a failure to have in place a process to regularly ensure that there were safety mechanisms in place, and that the offending involved a “fundamental and major departure from industry standards.”3
| X |Footnote: 3
At para [16]. 
 
[13]
The present case bears a number of distinguishing features. While a guard would have reduced the risks of the incident occurring, this was not a case where the company had failed to fix a guard that had broken away. The station was unmanned during normal processing. While the company had commissioned an independent company-wide conveyor-belt health and safety audit in 2004, the nip-point for the shrink wrap tunnel conveyor was not identified as a specific hazard. Nor was it identified as part of the regular hazard inspections and reviews routinely undertaken by the company as part of its hazard management system.4
| X |Footnote: 4
Affidavit of Charlotte Stevens, Manager, Silver Fern Farms Limited, filed in support at paras [14] to [16]. 
The present case can also be distinguished from Hanham, where the construction of temporary scaffolding was found by the full Court to be “obviously inadequate” and “inexplicable”.5
| X |Footnote: 5
Hanham [156]. 
 
[14]
In addition, there were agreed protocols in place between the company and the cleaning contractor requiring the machinery to be isolated prior to cleaning. This had not occurred prior to the accident. The safety protocols were reflected in a written booklet entitled “Site Safety Induction”.6
| X |Footnote: 6
Annexure “A” to affidavit filed in support. 
The victim had been inducted on site in July 2009 for the 2009/10 season. She had earlier signed an acknowledgement of having read and understood the contents of the “Rules and Safety Procedures for Contractors Engaged at Silver Fern Sites”, and had agreed to comply by the rules and procedures set out therein. 
[15]
These factors distinguish the present case from Insulpro (where a starting point of $70,000 was adopted) and are relevant to an assessment of overall culpability. 
[16]
Having regard to the circumstances relating to the offending, I conclude that the case falls within the second Hanham category and that a starting point of around $60,000 is appropriate. 
[17]
Having established a starting point, consideration needs to be given to the aggravating and mitigating factors relevant to the offender. 
[18]
The company has three previous convictions for breaches of the HSE Act, although not in relation to the Waitotara plant, where the accident occurred. The informant submits that this record warrants an uplift of 5%. This is accepted on behalf of the company. 
[19]
The company co-operated with the department in relation to its investigation and subsequent prosecution. It took immediate remedial action to prevent the recurrence of circumstances of the kind that led to the commission of the offence. In particular, the company installed a guard on the nip-point; fixed the emergency stop button; installed an isolation switch; re-audited the plant for any other conveyor hazards; and clarified protocols with the company contracted to carry out cleaning services in the plant. It is said, on the company's behalf, that these remedial steps took some time and were costly. 
[20]
The company, through its Manager, has expressed remorse for what occurred and has offered an apology to the victim. 
[21]
I consider that the mitigating factors warrant a discount in the region of around 15%. 
[22]
In Hanham, the Court stated that a discount of up to 10 to 15% in the level of fine is reasonable to recognise the order for reparation in the case of an offender of adequate means.7
| X |Footnote: 7
Hanham [69] 
 
[23]
The offender entered a guilty plea at a relatively early stage. In my view, an allowance of 25% is appropriate to reflect the timing and circumstances relating to the plea. 
[24]
In the circumstances, I consider that a fine of $40,500 is warranted. 
Step 3: Overall Assessment 
[25]
I am satisfied that an order of $20,000 reparation, coupled with a fine of $40,500, is proportionate to the circumstances of the offending and the offender, having regard to the applicable principles and purposes of sentencing in this case. 
[26]
Accordingly, the company is ordered to pay the victim $20,000 by way of emotional harm reparation (payment to be made within 28 days) and fined the sum of $40,500. 


Hanham [50] 
Hanham [57] 
At para [16]. 
Affidavit of Charlotte Stevens, Manager, Silver Fern Farms Limited, filed in support at paras [14] to [16]. 
Hanham [156]. 
Annexure “A” to affidavit filed in support. 
Hanham [69] 

From OSH Tracker

Table of Contents