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Safeguard OSH Solutions - Thomson Reuters

Safeguard OSH Solutions - Thomson Reuters



OSH Tracker

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

OSH Tracker

Defendant:
Berger Heating Ltd
Industry:
Manufacturing
Sub-Industry:
Metal Product Manufacturing
Risk:
Fall from height
Harm:
Injury
Penalty Amount:
$67000.00
Reparation Amount:
$15000.00

Judgment Text

NOTES OF JUDGE J J D STRETTELL ON SENTENCING 
J J D Strettell Judge
[1]
Berger Heating Limited is charged that it being an employer failed to take all practicable steps to ensure that the safety of its employee, Patrick Casey Burke, while at work, it failed to take those practical steps ensuring that Patrick Casey Burke was not exposed to a hazard of a fall from height at his place of work. The company, through its counsel, pleaded guilty at an early stage. 
[2]
The facts of this are that the company was undertaking an alteration to a flue in the Christchurch area. Mr Burke was an employee of the company. On the day in question the company, through its employees, was required to access the roof of a house. It was agreed that the existing scaffolding on site could be used by the worker to access the roof. That had been put up by another company to carry out independent work. That scaffolding did not reach the top of the roof and was not put there for the purposes of the work having to be carried out by the company. 
[3]
On the day in question the employee had mounted the ladder and was on the roof. In order to get there they, that is Mr Burke and another employee, used a stepladder which they placed on top of the scaffolding. It was at a 90 degree angle and was attached to the top guardrail of the scaffold by a ratchet strap and that was tied also to a middle rung of the stepladder and the guardrail. It was not tied at the top of the scaffolding or at the top of the ladder. A position of half its length was over the top guardrail of the scaffolding and the top of the stepladder was approximately level with the roofline. The bottom of the stepladder was not secured to the scaffold boards. 
[4]
What happened during the afternoon was at one stage Mr Webber had attempted to come down the ladder and did so but he did not hold the bottom of the ladder when Mr Burke wished to descend. Mr Burke had placed one hand on the roof and one hand on the ladder and that the bottom of the ladder had then kicked out causing a see-saw motion resulting in Mr Burke falling approximately five metres. He sustained head injuries, fractured eye socket, broken nose, fractured femur and fractured kneecap and ankle and wrist. 
[5]
The company has acknowledged its culpability. I have earlier today referred to the principles and appropriate manner of approaching such cases and apply those principles also in respect to this case. 
[6]
The first issue is of course the question of reparation, that being a priority in relation to the sentencing process. The victim here has suffered significant injuries but appears likely to have a full recovery. The issue that arises here is will later be referred to as whether what might otherwise be a quantum of reparation for the loss in the sense of amenity enjoyment and emotional harm can itself be subject to reduction to reflect the need for the Court to both address reparation and fine, they being both issues that have different functions, the reparation compensatory while the fine has a deterrent aspect and other denunciation and rehabilitative and educational aspects. 
[7]
In this case, as I will later refer, the company is not capable of meeting in full what might otherwise be its full liability. The question is whether that should impact not only upon the level of the fine but also the level of the reparation. Whilst it might be said that because of the different functions the obligation is to ensure that the company is in a financial position to meet some penalty under both it seems to me and rightly put by Mr Marsh that in the Hannan decision the matter, although not specifically addressed in this type of situation, has indicated the primacy of the reparation and hence if there is to be a reduction because of the inability to meet what might otherwise be appropriate then it must be fine rather than reparation that is addressed. Hence, I think taking into account the level of initial distress but accepting that there is a full recovery I set the figure of reparation the sum of $15,000. 
[8]
Looking now at the degree of culpability setting the starting point in respect to fine, the relevant issues here are firstly this was a fairly obvious matter to address. It was easily fixed by appropriate securing of the ladder, top and bottom, or extension of the scaffolding to enable it. The risk of harm in such circumstances was high and perhaps even higher than was the resulting injuries sustained. There is a high risk of harm and must be factored in and clearly, as is accepted by the guilty plea, not all practicable steps were taken. The level of culpability has to be addressed having regard also to the obvious industrial standards which apply. In my view, the starting point places this at the mid-top of the medium culpability and no lower than $90,000 as a starting point. 
[9]
There are no aggravating factors. The discount factors here seem to be as follows. The company has obtained additional health and safety advice, purchased additional scaffolding, co-operated, maintained contact and support of the respondent and in the circumstances of a company where there was financial impecuniosity a discount of 20 percent is not unreasonable. 
[10]
In addition to that the Court is entitled to impose a discount for reparation ordered and to be paid in the sum of five percent and a discount for a guilty plea of 25 percent which results in a figure of $52,000. For a viable, strong financial company such a fine is in keeping with the above principled approach, however, the Court has to take into account the personal capacity of the company in terms of the Sentencing Act 2002 to make such payment. The incident has had a significant impact on the company itself. It is barely capable of continuing to trade. It is dependent on the directors and employees continuing to commit it themselves to support of the company. There is therefore a clear tension arising between the need for the principles of denunciation and deterrence to be measured and be meaningful against the overall impact of penalty upon the company. 
[11]
The Court was referred by counsel to the decision in Mobile Refrigeration v Waikato Cold Storage Limited. In that case on appeal the High Court declined to make any adjustment there because it firstly was not of the view that clear and unequivocal material was before the Court that a fine of an appropriate level could not be met, and secondly, that in some instances companies should not be able to escape liability simply by indicating impecuniosity and that they may simply have to take the decision whether to continue to trade or not. 
[12]
I gain from reading that case that there was a suspicion that the company was quite capable of meeting the fine through the introduction of further funds from shareholders. I consider that there is a difference to the company here which is really in the position where its shareholders have already done that in order to maintain the company as a going concern. There is nothing in the evidence I have seen which indicates that this company is being maintained in a state of limited financial means because of a decision made by the directors or because of this case. They continue to want to trade and have taken steps to attempt to do so and wish to continue but the impact of a fine will of course have an impact in an adverse way upon its ability to trade unless it is reduced. The other factor that comes into this is that fines have to be imposed having regard to the ability to pay. That is stated in the Sentencing Act and it is a principle of sentencing in any case. 
[13]
What is a penalty for an individual who has no money of $300 is for a person of significant means a mere trifle. It follows similarly in a company that, where the bona fides of a company are not in dispute, a penalty of a lesser amount has a much more significant impact as a penalty than in respect to a company that is financially well off and thus the purposes of sentencing can be met by a low fine because of its impact and that is also evident in the sense of others seeing that even those of modest means are held to account by way of penalty. 
[14]
To that end therefore, whilst I accept that a penalty that I indicated of approximately $52,000 would have been reasonable, taking into account the information that I have received, a fine of $15,000 is imposed, the discounting of the fine reflects the actual financial viability of the company. 
[15]
Accordingly, the company is directed to pay reparation in the sum of $15,000 together with a fine of $15,000. Arrangements can be made for time payment. 

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