Skip to Content, Skip to Navigation
Advertisement

Safeguard OSH Solutions - Thomson Reuters

Safeguard OSH Solutions - Thomson Reuters



OSH Tracker

Department of Labour v Blackhead Quarries Ltd (DC, 29/06/11)

OSH Tracker

Defendant:
Blackhead Quarries Limited
Blackhead Quarries Limited was fined $28,128 and ordered to pay reparation of $20,000 under s6 after an employee fell 3.6m off a steel beam. He cut his head and fractured his skull, neck, back and ribs. The DoL said the fall hazard should have been identified and controlled ( Dunedin DC, June 29). 
Industry:
Mining
Sub-Industry:
Other Mining
Risk:
Fall from height
Harm:
Injury
Penalty Amount:
$48128.00
Reparation Amount:
$20000.00
Appeared in Safeguard issue 129

Judgment Text

NOTES OF JUDGE J E MACDONALD ON SENTENCING 
Judge J E MacDonald
[1]
The defendant Blackhead Quarries Limited has pleaded guilty to a charge brought under ss 6 and 51(a) of the Health and Safety in Employment Act 1992, in that being an employer it failed to take all practicable steps to ensure the safety of its employee Hugh John Donaldson while at work, in that it failed to take all practicable steps to ensure that he was not exposed to the hazard of a fall from a height in his work place. The offence was committed on 1 September 2010 at Blackhead Quarry on Blackhead Road in Dunedin. 
[2]
I start by acknowledging that I have received comprehensive submissions from counsel. I also acknowledge that there are representatives of the defendant company present, and keenly interested in what happens here, and likewise I acknowledge the presence of Mr Donaldson and two other people who are involved in this prosecution. 
[3]
I will try to avoid repeating all the submissions. I would prefer to simply say that they have indeed been considered and then get to my conclusions. 
[4]
First, I will briefly describe what happened. On 1 September 2010, Mr Donaldson and two other employees were instructed to carry out work involved in the maintenance of a crusher. The crusher is elevated and access was provided by walkways and platforms. I have been provided with photographs of this. This particular maintenance took place about three to four times a year. The summary of facts describes how Mr Donaldson stepped from the walkway across a steel beam and onto the top of a plate, it seems in order to tighten one of the nuts on the top of the crusher. There was fall protection on three sides of the crusher but Mr Donaldson slipped off the crusher on the unprotected side, falling some three to six metres. He suffered serious harm in terms of the definition under the Act. The fact that he appears to have since recovered quite successfully does not of course detract from the fact that the injuries were severe. The injuries were to his head, back, and ribs and are described in a victim impact statement that was received earlier this week. It outlines the injuries, the ongoing impact upon him and how it might impact further in the future. 
[5]
As for the defendant, I accept that remedial action has been taken and it has been taken promptly and appropriately. 
[6]
The issue then is what sentence to impose, bearing in mind that the maximum penalty is a fine not exceeding $250,000 plus reparation. 
[7]
I note that the charge first came before the Court on 23 March 2011 with a plea being entered on 21 April 2011. That reflects that the guilty plea was prompt and I accept that it was entered at the first available opportunity. 
[8]
There is a divergence between counsel as to what the penalty should be. For the defendant the submission is that I should impose reparation in the order of $10,000 to $15,000 and a fine of somewhere between $13,500 and $20,000. The informant submits that the range for reparation is $15,000 to $20,000 and that a fine of $36,000 would be appropriate. 
[9]
I have, in the course of the submissions, raised with counsel the timing of any credit for a guilty plea. It is accepted by both that a 25 percent reduction is appropriate. 
[10]
In my view the correct approach is as set out by the Supreme Court in Hessell v R [2010] NZSC 135Has partially negative history or cases citing, but has not been reversed or overruled[Yellow]  at [73]: 
“[73]
There is no objection in principle to the application of a reduction in a sentence for a guilty plea once all other relevant matters have been evaluated and a provisional sentence reflecting them has been decided on. ”
[11]
I appreciate that is not necessarily what happened in the High Court in Ballard v Department of Labour [2010] 7 NZELR 301 but in my view the appropriate course is to consider all mitigating factors in order to arrive at a provisional sentence, and then at that point apply a deduction for the guilty plea. 
[12]
As to reparation, I note that there is no issue as to the financial capacity of the defendant and nor does the issue of insurance arise. I will come back to it later, but there is a relatively small discrepancy in terms of what the reparation figure should be. 
[13]
In terms of the fine, and I acknowledge that the leading case is Department of Labour v Hanham & Philp Contractors Ltd (2009) 9 NZELC 93,095; (2008) 6 NZELR 79 (HC)Has partially negative history or cases citing, but has not been reversed or overruled[Yellow] . That sets out the proper approach to sentencing. I have to assess culpability. A number of factors are relevant to that assessment and they are set out in Hanham & Philp at para (54). 
[14]
As I understood it, the defendant accepts the omissions noted in the summary of facts and Mr La Hood has just recently gone through those. The real issue in terms of why there is a divergence about where this offending sits seems to be in relation to the obviousness of the hazard. Mr Robinson is in effect submitting that the hazard was not obvious at all. In that regard there is reliance on the fact that there was no previous incident that would alert anyone to the risk and that falls in this particular industry are not commonplace. These matters are covered in his written submissions. 
[15]
The informant, on the other hand, points to the fact that the generally, well-received wisdom of falls being hazardous is well known, and that this is a situation where there was inadequate identification of this particular hazard. 
[16]
Hanham & Philp sets out levels of culpability. The defendant puts it at the high end of low culpability and submits that the starting point should be $45,000. The informant submits that culpability is in the middle of the medium range and advocates for a starting point of $60,000. 
[17]
As mentioned I sensed that it was in relation to the obviousness of the hazard that the disparity arises in terms of the appropriate starting point for any fine. I think, however, that the point that Mr La Hood makes is valid and that is that the obviousness of the hazard is only one of several matters that I am obliged to consider. 
[18]
In the end taking all matters into account (and as I say I have not repeated the submissions in full) I would place this in the middle range and I would adopt a starting point of $50,000. That is somewhere between the figures mentioned by counsel. 
[19]
I had of course already referred to reparation without fixing a figure for that. This morning I had re-read the victim impact statement. I have compared it with other cases. In all the circumstances, I propose to fix reparation at $20,000. 
[20]
Having reached this point, there was then quite some discussion about what other mitigating factors needed to be taken into account. In that regard, I accept that the co-operation and remedial action taken by the defendant must be recognised. There is no issue with what it did and that is set out in the submissions. Likewise I accept that there was remorse and I also accept that the defendant can point to and take credit for its prior safety record. In addition there is the reparation figure that must be taken into account in this regard. 
[21]
Mr Robinson has adopted the approach, no doubt to achieve transparency in the sentencing process, of allocating a particular percentage for each factor that I have just identified. Mr La Hood, however, has adopted a more global approach. I have asked counsel as to whether they can discern any particular pattern about what level of deduction overall has been allowed in other cases but I am told that there is no real pattern. 
[22]
Overall, as I might have mentioned before, Mr Robinson is submitting that for the matters just identified I should allow a deduction of 45 percent. Mr La Hood on the other hand submits that I should not allow a deduction of any more than 20 percent. If I allow the deduction advocated by Mr Robinson, being a 45 percent deduction, and then allow a further 25 percent for the guilty plea, whenever it is applied, overall it would mean a deduction of 70 percent. In my view that seems too high. As far as Mr La Hood is concerned, the overall deduction would be one of 45 percent. 
[23]
Assessing all matters, and having fixed a reparation figure of $20,000, I take the view that a deduction for the mitigating factors identified, namely co-operation, remorse, remedial action, safety record and reparation, should be 25 percent. That is the maximum that I think is appropriate in the circumstances. With the further 25 percent deduction for the guilty plea that is a deduction of 50 percent overall. It seems to me that anything beyond that is simply not justified and would in my view be out of line with other cases. 
[24]
Assuming that my calculations are correct, I first deduct 25 percent from $50,000. That is $12,500, which brings me to a provisional fine of $37,500. I allow a further 25 percent reduction for the guilty plea, which is $9375, and that takes me to a fine of $28,128. The company is convicted and fined that sum. It is also ordered to pay the sum of $20,000 reparation to Mr Donaldson. I impose Court costs of $132.89. 

From OSH Tracker

Table of Contents