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Safeguard OSH Solutions - Thomson Reuters

Safeguard OSH Solutions - Thomson Reuters



OSH Tracker

Health and Safety Inspector v Iscaff Ltd (DC, 02/05/13)

OSH Tracker

Defendant:
Iscaff Ltd
Industry:
Construction
Sub-Industry:
General Construction
Risk:
Fall from height
Harm:
Injury
Penalty Amount:
$30000.00
Reparation Amount:
$0.00

Judgment Text

SENTENCE 
John Walker Judge
[1]
Iscaff Limited (“Iscaff”) a company which supplies and erects scaffolding has pleaded guilty to a charge under s 18A(3) of the Health and Safety in Employment Act 1992: 
“Being a person, who hired or otherwise supplied another person namely Braddock Decorators Ltd, plant, namely Layher SpeedyScaf Scaffolding, to be used in a place of work and who agreed to install the plant, failed to take all practicable steps to install that plant so that it was safe for its intended use. ”
[2]
A painter who was using the scaffolding used a guard rail to assist him to stand up from a kneeling position and the guard rail gave way, causing him to fall two metres to the ground, He suffered a fractured vertebrae. 
[3]
The guard rail was too short for the clamping mechanism (coupling) to be effective and so it was not retained when pressure was applied to it. 
[4]
It is the Informant's case that the guard rail was not installed in accordance with industry standards. The published standard required the rail to extend at least 10mm beyond the coupling. The rail was barely inside the coupling. There can be no doubt that the guard rail was inadequately installed. It was also the Informant's case that the guard rail should have been installed on the inside of the scaffold uprights so that in the event of failure the guard rail would move down the inside of the scaffolding, providing some measure of protection rather than falling out and providing no protection at all. 
[5]
There was much debate in the course of the sentencing submissions as to whether it was clear that the industry standard required the installation of guard rails on the inside. I do not consider that much turns on this. The operative cause was an insecure guard rail. Had the guard rail been secured in its clamp, then whether it was inside or outside would have made little difference. 
[6]
I proceed on the basis that the scaffold guard rail was not safely installed. 
[7]
The first stage in the assessment of penalty will be to assess the level of reparation. In this case, the painter who was injured has since died of unrelated causes and reparation does not arise. I move to assess the level of culpability. 
[8]
A guard rail, like any other component of scaffolding, must be securely installed, otherwise the whole point of the scaffolding, which is the provision of a safe platform for working at height, is defeated. Those who climb onto a scaffolding, apparently professionally installed, are entitled to assume that it is safe. 
[9]
Iscaff was inexperienced in the provision of scaffolding. The background to the company's establishment can be taken from Mr Miller's submissions, paragraphs 2 — 5 inclusive. 
“[2]
Nicholas and Claudia Samitz are joint Directors and Shareholders of iScaff Limited (the Company), a company situated at Titahi Bay. 
[3]
The Company, bought the scaffolding business formerly known as Kapiti Scaffolding Limited in February 2012. One of the Directors and Shareholders of Kapiti Scaffolding Limited, was Mr Bradleigh Savage. 
[4]
A condition of the sale of the business required Mr Savage to assist Mr Samitz with training. 
[5]
At the same time as the purchase of the business, Mr Samitz enrolled to complete a National Certificate in Elementary Scaffolding at Tai Poutini Polytechnic (the Polytechnic). ”
[10]
Mr Samitz had worked with the vendor company for two months before the purchase of that business. Mr Savage, although experienced in scaffolding, did not at the time of providing training for Mr Samitz have a valid certificate of confidence and could not lawfully supervise Mr Samitz in his work. 
[11]
By the time the accident occurred, Mr Samitz had very limited experience and training. That training could not have been for more than four months. And so, iScaff had entered into the business of supplying and erecting scaffolding with its actual operator having very limited experience. In my assessment, it is that very limited experience which allowed a guard rail to be inadequately secured. 
[12]
The hazard which would result from an unsafe scaffolding is an obvious one, a fall from height with the potential for serious injury. 
[13]
I assess the level of culpability as within the medium band and assess the starting point as at the mid range of that band, that is a fine of $75,000. 
[14]
I turn to consider mitigating circumstances personal to the Defendant. Mr Miller submits that there should be credit for a clean safety record. I do not consider that that is of mitigating value in this case having regard for the fact that the company had only been operating for two months prior to this event. It is clear, however, that the company has taken its safety responsibilities seriously by implementing procedures to advance safety. Although those procedures seem to be basic obligations, it is apparently an advance of what the previous operator had in place. Some limited credit can be given for the steps taken and that would reduce the fine to $70,000. 
[15]
The only other mitigating factor is the plea of guilty which has been entered at the earliest opportunity and that serves to reduce the fine to $52,500. 
[16]
I turn now to consider the financial ability of the company to pay a fine of that magnitude. I have had placed before me the company accounts which show a company of very limited means. It is operating in deficit and its assets comprise the scaffolding equipment and two vehicles, which equipment provides the sole means of obtaining income. Its shareholders, the husband and wife Directors, have advanced their own funds to enable the company to buy its equipment. 
[17]
The fine needs to be adjusted balancing the need to mark the seriousness of the breach with the ability of the company to pay and the avoidance of imposing a penalty which would render the company unable to operate. In this case, a substantial adjustment is required in such a balancing exercise, and the resulting fine would be $30,000. 
[18]
As a final step, I need to assess whether such a fine is proportionate to the offending and appropriate. I consider that it is proportionate and appropriate. 
[19]
The company is convicted and fined $30,000. 

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