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Safeguard OSH Solutions - Thomson Reuters

Safeguard OSH Solutions - Thomson Reuters



OSH Tracker

Department of Labour v Wilson (DC, 07/10/11)

OSH Tracker

Defendant:
Hugh Michael Wilson t.a Marmic Installations
A company policy that employees should not do a job if they felt unsafe was a fallacy, says a district court judge. 
A man was badly inured when he fell six metres off the roof of a Titahi Bay town house while installing a Sky dish. He was employed as an installer for Marmic Installations, which was a Sky Network Television installer subcontracted in an informal agreement with City Aerials Ltd. 
Hugh Michael Wilson trading as Marmic Installation was charged under s6 and regulation 21(c) of the HSE Act, and City Aerials was charged under s18(1)(a). 
Judge S.E. Thomas said in her judgment there had been a mantra from Marmic Installations that its workers should not do a job if they felt unsafe. But the fallacy of that policy was that the victim had fallen and sustained serious injuries (Wellington DC, June 20). 
Judge Thomas said it was an inadequate policy because there were no criteria provided to its employees relating to the height or pitch of a roof, to determine whether they should feel safe. 
The man, who had been in a coma and unable to walk for two weeks, had been hospitalised for seven weeks. His injuries included fractures to his skull, two vertebrae in his neck, his jaw and an eye socket. 
He had never had a discussion with Marmic Installations about height safety, and was not provided with a safety  harness or trained how to use one. He had also not been given any guidance on when it was appropriate to use roof ladders or a three-storey extension ladder. 
While the company said to use a cheery picker for very high jobs, it was only rarely made available. Despite the warnings to work safely the man felt pressured to do an installation if it was a fine day. His work not supervised or monitored. 
Judge Thomas said in sentencing Wilson failed to follow the DoL guidance in its publication The Guidelines for the Prevention of Falls (Wellington DC, October 7). 
She said Wilson was not entitled to rely on any argument the employee’s own actions contributed to the offending as the victim did not actively disobey any instructions.   He ordered Wilson to pay reparation of $10,000 and fined him $5000. 
In sentencing City Aerials Judge Thomas noted how the accident had impacted on the ability of the injured man to deal with his children and his social life. She also noted it was the company’s first serious accident in 20 years. Judge Thomas fined the company $24,750 and ordered reparation of $10,000. 
Industry:
Communication Services
Sub-Industry:
Communication Services
Risk:
Fall from height
Harm:
Injury
Penalty Amount:
$15000.00
Reparation Amount:
$10000.00
Appeared in Safeguard issue 132

Judgment Text

NOTES OF JUDGE S E THOMAS ON SENTENCING 
S E Thomas Judge
[1]
Mr Wilson, you appear for sentence having been found guilty by me and convicted of the following two charges. One, failing to ensure the safety of an employee in breach of ss 6 and 50(1)(a) Health and Safety in Employment Act 1992 (“the Act”) carrying a maximum penalty of a fine of $250,000 and two, failing to provide means to prevent an employee falling more than three metres in breach of reg 21 of the Health and Safety in Employment Regulations 1995. The maximum penalty being, again, a fine of $250,000. 
[2]
The facts of the offending are that on 26 July 2008 an employee of yours, Mr Twist, was installing a Sky dish on a townhouse unit in Titahi Bay. He fell approximately six metres off the roof and sustained serious injuries, including a fractured skull, two fractured vertebrae in his neck, a fractured jaw, a fractured eye socket, blood haemorrhaging, severe bruising to his back and bruising all over the right side of his body. He was in a coma and unable to walk for two weeks and in the brain injury hospital for seven weeks. 
[3]
Now I gave an extensive written decision and I do not propose to canvass all of that but I will turn to the salient parts of the decision. 
[4]
The informant had submitted that you should have ensured that the victim was provided with and trained in the use of a safety harness and line and that was the practicable step which you should have taken to prevent your employee's exposure to the hazard of a fall from height in his place of work. Clearly, when the employee was installing the satellite dish in a location on the roof, he was exposed to a fall of more than three metres. He was, in fact, exposed to a fall of six metres. 
[5]
Your case at the defended hearing was that you had provided means and that was the availability of a cherry picker or a roof ladder. Your position was that whether that equipment was needed was totally dependent on the assessment made by your employee as to whether he felt safe. I found that three issues arose from that. The first was that the use of the roof or extension ladder without the additional use of a harness did not constitute all practicable steps in accordance with the Act. The second issue was that I was not satisfied in all the circumstances that the cherry picker was in fact provided as a suitable means to prevent your employee from falling. The third issue about which I reached conclusions was that your policy on working at height and training as to when an alternative method should be used, was inadequate. The only relevant advice in the policy you did have on working on a roof at height was the consideration that an installer did not attempt high installations on windy days. 
[6]
I also found that your employee had not been properly trained to identify the hazards of his work and when he should consider the use of specialist equipment. As a result of that, he felt safe when obviously he was not. So for those reasons, I found that the charges were proved. 
[7]
I turn now to consider the victim impact statements, that is, what your employee has said have been the consequences to him of all of this. There are three statements from him. I have already referred extensively to the injuries he suffered. He spent 11 months away from work. He says that his injuries have had a significant impact on his family and his social life. He talks about the strain on his relationship, the increased responsibility placed on his wife and the impact of his accident on his ability to deal with his two children. I note the expenses referred to in his victim impact statements and I note also the payments that he received from the head contractor, that is City Aerials. He said that he found it upsetting to have to revisit his experience and he found giving evidence in the Court case a traumatic experience. However, he has no bitterness. He wishes to put the event and the Court case behind him and get on with his life. 
[8]
Mr Wilson, you have no previous convictions or no convictions that are relevant to this charge in any event. I have received from you a statement of your financial means. That lists your income, your expenses, your assets and liabilities. You have also supplied evidence from your bank as to your bank's willingness to increase your mortgage to enable a lump sum payment to be made to the victim. 
[9]
I turn now, to consider the approach which I must take in sentencing you today in accordance with the provisions of the Act, that is the Health and Safety in Employment Act and the Sentencing Act 2002. I note the guidance in the case of 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]  which sets out the three main steps in sentencing which are first, to fix the amount of reparation, secondly, to fix the amount of the fine and thirdly, to make an overall assessment of the proportionality and appropriateness of the total position of reparation and a fine. I must take into account your offers to make amends by way of reparation as well as your financial circumstances. 
[10]
In setting the amount of the fine the Department of Labour v Hanham & Philp Contractors Ltd case identified three categories of culpability from which an appropriate starting point may be derived. First, low culpability where a fine of up to $50,000 is suggested. Secondly, medium culpability where a fine of between $50,000 and $100,000 is suggested and thirdly, high culpability where a fine of between $100,000 and $175,000 is recommended. In cases of extremely high culpability, fines can be imposed up to the statutory maximum of $250,000. I note too, the various factors to be included in an assessment of culpability and I will turn to those shortly. 
[11]
Aggravating factors in respect of offences under the Act include previous convictions or an otherwise adverse safety record. Mitigating factors include a guilty plea, co-operation with authorities, remorse, remedial action to prevent a recurrence of the offence and a favourable safety record. The amount payable under a sentence of reparation is also to be taken into account in fixing a fine. 
[12]
I turn now briefly to consider the informant's submissions. I do not propose to go through them in detail. They are comprehensive submissions and I have taken them into account. First, concerning a submission on reparation, the informant, referring to the victim impact statements and referring to cases in which the victim suffered similar injury to those suffered by the victim in this case, submits that an award of emotional harm reparation of $20,000 to $30,000 would be appropriate. So far as the fine is concerned, the informant submits that you omitted to ensure there were adequate means and protective measures available to your employees to prevent exposure to a fall from height, that the seriousness of the victim's injuries and the inherent danger of working at height are both significant factors contributing to your culpability and that you failed to follow the guidelines in the Department of Labour publication, The Guidelines for the Prevention of Falls. That, in the informant's submission, marks a significant departure from industry standards. 
[13]
The informant submits that your culpability lies in the medium band of culpability as I have described and that a starting point of a fine of $90,000 for each charge is appropriate. The informant accepts that both charges arise from the same offending and that the fines should be aggregated. The informant accepts that you are entitled to a reduction to reflect your co-operation, payment of reparation and submits that a five to 10 percent reduction is sufficient. 
[14]
Turning now to consider the submissions made on your behalf, Mr Wilson. First you submit that because Mr Twist received ACC payments in lieu of lost earnings, there can be no reparation in respect of economic loss and certainly there cannot in respect of ACC coverage. The submissions on your behalf note that the emotional harm described in the most recent victim impact statement relates principally to having to relive the incident through the Court proceedings and you note that your employee continues to work in the same industry for City Aerials where essentially, in your submission, the same approach to safety is employed. You dispute the informant's submission that your culpability lies at the high end of the medium band, submitting that the steps you should have taken have not been clearly identified because they cannot be clearly identified and that the Court finding that a policy regarding mandatory consideration of the use of a cherry picker and/or harness, coupled with appropriate training, is consistent with your policy of having your employee make that decision. 
[15]
The submission is that although the injuries suffered by the victim were serious, there were no lasting physical injuries apart from some scarring. The submissions are that The Guidelines for the Prevention of Falls are aimed primarily at the construction industry and that they are of little relevance to the aerial installation industry. 
[16]
For all those reasons, the submission is that a starting point for the fine is at the bottom end of the low culpability range, that you should receive full credit for your co-operation with the informant and furthermore, that you have very limited financial means. The submissions on your behalf, therefore, is that your culpability is low. Initially it was submitted that a sentence of conviction and discharge was appropriate but I take it from the position today that you accept that some form of payment, particularly in relation to reparation, is appropriate. 
[17]
Mr Wilson, in sentencing you, I turn to consider the relevant purposes and principles of sentencing pursuant to the Sentencing Act. They are to promote in you a sense of responsibility for the harm and an acknowledgement of that; to provide for the interests of the victim; to provide reparation; to denounce the conduct; and to deter others. 
[18]
The principles of sentencing relevant are the gravity of the offending; including the degree of your culpability; the need for consistency with appropriate sentencing levels; and the need to consider the effect of the offending on the victim. 
[19]
The first step is to fix the amount of the reparation. The Sentencing Act creates a presumption in favour of reparation for physical or emotional damage unless the financial or other circumstances of the offender make it inappropriate. I have taken into account the cases referred to by the informant, that is, Department of Labour v Alliance Group Limited DC Gore CRI-2008-017-481, 21 April 2010 and Department of Labour v Blackhead Quarries Ltd DC Dunedin CRI-2011-012-795, 29 June 2011 as indicative of an appropriate sentence of reparation. In both those cases the Court set the award of emotional harm reparation at $20,000. 
[20]
In this case the victim suffered serious injuries which have had a significant physical and emotional impact on him, but physically he is largely recovered. I do not accept the submission on your behalf that his emotional harm is essentially limited to the harm caused by having to relive the accident through the Court proceedings. The victim impact statements describe other adverse emotional impact from the accident and I accept that. 
[21]
In conclusion, I determine that a sentence of reparation to be shared by the two parties-to be sentenced today of $20,000 is appropriate to reflect the economic and emotional harm suffered by Mr Twist, the economic harm being the costs incurred by him other than his ACC payments and which are able to be taken into account in reparation. 
[22]
I turn then to the second step which is to fix the amount of the fine. There is clearly significant divergence between the submissions from the informant and on your behalf as to the fine. In the informant's submission, your culpability lies at the high end of the medium band whereas the submissions on your behalf are that it lies at the bottom end of the low range. 
[23]
I turn to analyse the various factors. First of all an identification of the operative act or omission at issue. There is clearly a need for: 
(i)
The implementation of a workplace safety policy that adequately identified the hazard of working at height and the provision of training regarding when alternative methods of minimising such hazards could be used; and 
(ii)
The provision of and training in the use of specialist equipment such as safety harnesses or cherry pickers for use when the circumstances require it. 
[24]
I note that you are not entitled to rely on any argument that the employee's own actions contributed to the offending. The victim did not actively disobey any instructions. My finding was that there was no adequate policy or training to identify the hazard and the use potentially of specialist equipment, that the alternative method which you say was available, was not in the circumstances provided. 
[25]
Secondly, an assessment of the nature and seriousness of the risk of harm occurring as well as the realised risk. Everyone acknowledges the seriousness of the victim's injuries and the inherent danger in working at height, both being significant factors contributing to your culpability. 
[26]
Thirdly, the issue of degree of departure from standards prevailing in the relevant industry. I have had regard to the Department of Labour publication, The Guidelines for the Prevention of Falls. The guidelines relevantly provide, and I quote: 
“While these guidelines are primarily aimed at the construction industry in relation to the design, building, maintenance and demolition of structures, it also has application to a wide range of work situations where workers are placed in a position from which falls are possible. ”
[27]
Section 12 of the guidelines entitled, “Roof Erection and Fixing”, contains a subsection on “general safety” for all persons working on roofs. That is, in my opinion, highly relevant and in lieu of dedicated guidance for the aerial installation industry is likely to give an indication of best practice. 
[28]
While they may not represent standards prevailing in the industry, the characterisation of them in these submissions on your behalf as being scarcely relevant is, in my assessment, incorrect. In my assessment an organisation that is conscientious about meeting the requirements of the Act ought to have had regard to those guidelines at least for general guidance. It should at least be clear from those guidelines that a workplace safety policy that omits to identify the hazards of working at height and leaves the carrying out of work to the discretion of the employee without providing proper training in alternative methods of minimising height hazards, would be inadequate to satisfy the requirements of the Act. 
[29]
Turning to the fourth consideration, that is the obviousness of the hazard. Both parties accept that falling is an obvious hazard when working on a roof. 
[30]
The fifth consideration is the availability, cost and effectiveness of the means necessary to avoid the hazard. At the hearing you did not accept that a harness system was an appropriate method of minimising the risk of falls from height but your evidence was that use of a cherry picker was an effective alternative. In my view, the use of either a harness or a cherry picker would have been effective in the victim's case. There was no evidence provided to me that the cost or availability of alternative systems was such that you could not legitimately have been expected to provide them. 
[31]
I have already referred to the sixth consideration, the current state of knowledge of the risks and nature of severity of harm that could result and the seventh consideration, the current state of knowledge of the means available to avoid the hazard or mitigate the risk of its occurrence. 
[32]
So turning then, having considered all those factors, to assess a starting point. My view is that your culpability falls within the lower part of the middle band as described by the High Court in Department of Labour v Hanham & Philp. A starting point of $60,000 for a fine is appropriate. That is consistent with the cases cited by the informant, Department of Labour v Blackhead Quarries Ltd and Department of Labour v Alliance Group Ltd. Your culpability is slightly higher than in those cases because of the obvious and inherent danger of working at height on a daily basis but not so high as the case of Department of Labour v Mulford Holdings Ltd DC Dunedin CRI-2009-012-4382, 19 March 2010
[33]
Turning to consider then aggravating and mitigating factors. You had a clean safety record prior to the incident and that entitles you to a discount in my view (10%). You are also entitled to a discount to acknowledge your co-operation with authorities (10%) and a discount to take into account the reparation payment which now has been offered (10%). Those factors in aggregate in my assessment would entitle you to a discount of around 30 percent, reducing the fine to $42.000. 
[34]
Clearly, having defended the charges, there is no credit for a guilty plea. 
[35]
I accept that the two charges are essentially two technical breaches arising from one act or omission and therefore the total fine would be $42,000, that is on a totality basis. 
[36]
I turn then to consider your financial position. You have supplied a statement of means and I have already given the detail of what is included in that. Any fine imposed should not be excessive in relation to your financial resources. I must take into account the financial capacity of you, Mr Wilson, and that may reduce the fine. I can order that any fine is to be paid by instalments. I note, however, that the purpose of a fine is to punish the offending and it should not be used as a soft option. 
[37]
Having assessed that the amount of the reparation in total should be $20,000 but it should be split between you and City Aerials. That would leave the reparation payment to be made by you to be $10,000. I note from your financial statement that the bank will increase your mortgage to $12,000. I also note that obviously this all depends upon the co-operation from your wife as well and I give you significant credit for that. 
[38]
In my assessment, bearing your financial, quite straitened circumstances, the appropriate result is that the fine should be reduced to $5000, $2000 of which can be paid immediately or as soon as your mortgage arrangements are sorted out and the balance can be paid by instalments. I am aware that, although that is a considerable reduction, it will still be a significant burden on you, bearing in mind your circumstances. 
[39]
My third step is to make an overall assessment and I am satisfied that an overall result of reparation of $10,000 and a fine of $5000 meets the purposes and principles of the Act. 
[40]
Mr Wilson, for all those reasons you are sentenced to pay reparation of $10,000 to the victim as an emotional harm payment by one month today, 11 November. You are also fined $5000, $2000 to be paid by 11 November, the balance to be paid by instalments to be set by the Collections Department. I impose that in respect of the breach of ss 6 and 50 Health and Safety in Employment Act. In the circumstances, in respect of the breach of the regulation, bearing in mind the need for totality, you are convicted and discharged. 

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