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Safeguard OSH Solutions - Thomson Reuters

Safeguard OSH Solutions - Thomson Reuters



OSH Tracker

Department of Labour v Proform Plastics Ltd (DC, 26/06/12)

OSH Tracker

Defendant:
Proform Plastics Ltd
Proform Plastics Ltd was fined $42,000 under s6 after an employee’s arm was lacerated by a CNC router blade. He had reached across to clear a jammed tailgate and thought the machine had stopped. The router was unguarded and had no interlock. The SOP was for the operator to press the emergency stop button before reaching in (Hamilton DC, 26 June). 
Industry:
Manufacturing
Sub-Industry:
Petroleum, Coal, Chemical and Associated Product Manufacturing
Risk:
Machinery (trapped, crushed, cuts)
Harm:
Injury
Penalty Amount:
$42000.00
Reparation Amount:
$0.00
Appeared in Safeguard issue 134

Judgment Text

NOTES OF JUDGE M L S F BURNETT ON SENTENCING 
M L F S Burnett Judge
[1]
The defendant Proform Plastics Limited is before the Court on one charge of failing to take all practical steps to ensure the safety of an employee under ss 6 and 51(A) Health and Safety in Employment Act 1992. In particular, the employee Mr Tengu, who is employed by the company and has been since 30 August 2010, was operating a machine on 7 October 2011 and as a consequence of operating that machine, incurred an injury which was a cut to his lower arm area that required three stitches. 
[2]
This charge carries a maximum penalty of $250,000 and the background to the incident is set out in the summary of facts, which has been read to the Court and is attached to the informant's submissions. No dispute is taken with that summary, but in essence, the defendant is in the plastic canopy and bed liner manufacturing business, has a manufacturing operation here in Hamilton and produces a number of products using a range of machinery, including a CNC computer numerical control router machine. 
[3]
The incident that occurred on 7 October 2011 resulted when the employee, Mr Tengu, was using the router to trim tailgates when the router jammed on a tailgate. Mr Tengu thought that the router had completed a cycle and if it had completed the cycle, the blade would have ceased moving. However, it had not completed a cycle but the blade had stopped. Mr Tengu had the opportunity, as he was trained, to press an emergency stop button, but thinking that the blade had completed a cycle, he reached across to cut away the scrap and while doing this, the blade began moving again, because it had not completed its cycle. and cut Mr Tengu's right arm. He received treatment on site, went to a medical centre, received three stitches and returned to work on light duties. 
[4]
As a result of the Department of Labour's investigation into the accident it revealed that the defendant, the company had failed to take two practical steps. These were failure to install a guard to securely fence the CNC router machine, which would prevent employees being able to reach into the path of the machine blade and also failing to install an interlock device to ensure the power to the router blade is automatically disconnected if the guard is opened, so that while the guard is open the machine cannot operate. 
[5]
It is common ground that the company has not previously appeared before the Court, although I understand it has received a notice in the past. As to the sentencing process that applies, the informant refers me to the Department of Labour v Hanham and 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] , and also Department of Labour v De Spa and Co Ltd [1994] 1 ERNZ 339 (HC)Has Cases Citing which are not known to be negative[Green]  which sets out the principles established, namely to reinforce the proactive and preventative approach required by the Act, to promote the prevention of harm to all persons at work and in the workplace, or in the vicinity of a workplace. 
[6]
The Court has recognised that the levels of fines earlier imposed have been increased fivefold as a consequence of amendments in 2003 and Department of Labour v De Spa and Co Ltd reinforces to the Court that the levels of fines need to reflect the five-fold increase in the maximum. 
[7]
Now, when assessing the appropriate penalty, there is a three-step process. The first is assessing the amount of reparation, the second is fixing the amount of fine and third is making an overall assessment of the proportionality and appropriateness of the total imposition of reparation and fine. 
[8]
In the current position, no reparation is sought by the victim, Mr Tengu, and no reparation is pursued by the Department and so the Court moves to the second step, which is assessing the quantum of fine. The Court is referred to Police v Ferrier, HC Auckland CRI-2003-404-195, 18 November 2003, which at para (15) is noted as describing a fine as essentially punitive. It is a pecuniary penalty imposed by and for the State. In relation to a fine, the informant relies on the following purposes of sentencing in s 7; the need to hold the offender accountable for the harm done and to the community by the offending; the need to denounce the conduct, and the need to deter the offender and others from committing the same or similar offences. 
[9]
As to the principles of sentencing, the following are referred to the Court by the informant under s 8 Sentencing Act 2002, that is the gravity of the offending, including the degree of culpability of the offender, the seriousness of the offence and the effect of the offending on the victim. The effect of the offending on the victim is at the low end, considering the actual damage that could have been imposed. There is certainly the capability of removing a digit or rendering the arm or wrist or hand useless as a result of a significantly greater damage to that limb. Although the effect on this victim was at the minor end, the capability of inflicting a wound was significantly more. 
[10]
In establishing a starting point, the culpability refers to the factors of intent, motive and foreseeability in circumstances that bear on the offender's blameworthiness, and includes the following as set out in Department of Labour v Hanham and Philp Contractors Ltd, that is identification of the operative acts or omissions, in other words the practical steps. Here, there was a failure to install a guarding preventing employees being able to access the dangerous parts of the CNC router and a failure to install an interlock device as I have earlier referred to. 
[11]
The defendant had three other machines, which were fitted with guarding but did not have an interlock device. I accept that there was safety training requiring the employee to wait until the blade had stopped. Of course, in this case we know it had stopped. It had not returned to its full cycle, but the employee either made a wrong assessment there, or was simply in error and the employee did not press the emergency stop button, although trained to do so. 
[12]
The company has installed the interlock device and a guarding system. It has taken nine weeks to do so. The estimate cost is $60,000 and I am assuming that goes over the three machines, to install the interlock over a nine-week period, requiring approximately 1000 hours. 
[13]
There was always a serious risk of harm, although I have outlined the actual injury inflicted on Mr Tengu. There was the obviousness of the hazard and the standard operating procedures, which were in place, but were not sufficient to prevent Mr Tengu (who I take to be a reasonably experienced employee, having been employed at this company for over a year at the time of this incident) suffering an injury. 
[14]
There is the degree of departure from industry standards, and the requirement to guard dangerous parts of the machinery is well known. There has been a focus by the informant to educate and raise awareness and since 2010, the informant has focussed on reducing harm and injury caused by unguarded or poorly guarded machinery through the, “Safe Use of Machinery Project.” 
[15]
There were means to mitigate the risk. Those means were not onerous. They were available. The devices have been designed. They have been built and installed now and were clearly available prior to this incident. 
[16]
The informant refers me to the case of Department of Labour v Fonterra Co-operative Group Ltd DC Hawera CRN111021500375, 7 March 2012 and there the starting point was $90,000 by way of a fine. The employee suffered amputation of the tip of a finger after reaching in to clear a jammed machine, which restarted whilst her hand was exposed to the hazard. The hazard had been identified by the company previously, but only partial guarding had been installed. It seems distinctly similar to this offending. 
[17]
I accept that there are no previous convictions as I have earlier referred to. The mitigating factors include co-operation and remedial action. There is genuine remorse and Hessell v R [NZSC] 135 confirms a separate reduction for remorse and then there is the early guilty plea. There are no previous convictions but one previous interaction with the Department of Labour, requiring an improvement notice. 
[18]
For the defendant, Mr Scott has pointed out all of the mitigating factors, including the level of harm actually sustained by Mr Tengu, the company's support of Mr Tengu and his ability to return to work, his lack of physical damage and no emotional harm and also the defendant's commitment to safety. He seeks a starting point in the mid range of the lower band. 
[19]
For the informant, a starting point of $80,000 is sought and I have to agree with the informant that the circumstances of the offending, the circumstances of the risk, the starting point is reflected by the decision in Department of Labour v Fonterra Co-operative Group Ltd that I have earlier referred to as a similar circumstances. There, the employee lost the tip of her finger, rather than a cut sustained in this situation. However, the hazard and the circumstances were similar. 
[20]
I take a starting point of $80,000. I allow a 30 percent discount for the mitigating features. I do not quite accept the percentage of mitigating features as sought by the defendant, but rather, I acknowledge a discount of $24,000 for the mitigating features and a full 25 percent discount for the guilty plea, which produces an end fine of $42,000. 
[21]
There is no financial reason why this fine is not able to be satisfied, taking into account the current economic climate and I am of the view when I assess the impact of the fine, that it is a proportionate response to the conduct and also to the defendant's response to this incident. 

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