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Safeguard OSH Solutions - Thomson Reuters

Safeguard OSH Solutions - Thomson Reuters



OSH Tracker

Ministry of Business, Innovation and Employment v Greenway Developments Ltd (DC, 30/01/14)

OSH Tracker

Defendant:
Greenway Development Ltd
GREENWAY DEVELOPMENTS LTD was fined $25,000 and ordered to pay $5000 in reparation after a contractor fell from the roof of a garage under construction, fracturing his jaw and left wrist. He was helping secure a truss to the top plate of the garage when he slipped and fell three metres to a concrete floor. There was no means of fall protection in place (Tauranga DC, 30 January 2014). 
Industry:
Construction
Sub-Industry:
General Construction
Risk:
Fall from height
Harm:
Injury
Penalty Amount:
$30000.00
Reparation Amount:
$5000.00
Appeared in Safeguard issue 144

Judgment Text

NOTES OF JUDGE L M BIDOIS ON SENTENCING 
Judge L M Bidois
[1]
Greenway Developments Limited has pleaded guilty to a charge of, as a principal, did fail to take all practical steps to ensure a contractor, Mr Giles, was not harmed while doing work that the contractor was engaged to do in the erection of trusses. 
[2]
The defendant company is in the business of building houses. Mr Giles is an independent contractor who provides and erects trusses on houses. 
[3]
On 13 May last year, Mr Giles was erecting a truss on a residential house. That involved him working three metres above the ground. Together with others, he tried to position the truss at one end of the house. In doing so he fell and as a result suffered a fractured jaw and fractured wrist, no doubt trying to break his fall. 
[4]
The defendant is now for sentence having accepted that although the company was not directly responsible for the harm caused, there were some practical steps that it could have carried out to ensure that this did not happen. That involved providing some sort of support, such as temporary scaffolding, that workers could have stood on whilst trying to adjust the six metre truss into position. Matters were compromised by the fact that the truss was heavier than usual, it having become waterlogged. 
[5]
In relation to this matter, I have received submissions from the informant; I have heard from Ms Pille. In support she says that a fine is appropriate; that the level of culpability in this case is in the higher end of the medium range because, mainly, that it would have been obvious that a person could well fall from the position that the victim was working at and some fall protection should have been used; that there is always risk of harm being caused when there is a fall from approximately three metres; that there were standard guidelines which would have been available and should have been known by the defendant, which were not followed, and submits that the appropriate starting point should be around $80,000. 
[6]
The only aggravating factor pointed to is that two workers were also working from the same height and were exposed, effectively, to the same hazard. Ms Pille recognises that there are a number of mitigating factors available to the defendant company. 
[7]
Mr Beadle, for the defendant, submits that the level of culpability is low and justifies a starting point of $30,000. He acknowledges that the victim suffered some pain but relies on a number of matters, including the fact that the victim was a self-employed contractor with over 40 years' experience in the construction game and should have known the proper procedures to be adopted when erecting a truss. 
[8]
There were a number of other matters that are also discussed in submissions. Some weight is put on the financial position of the company and there are comprehensive financial details of the company before the Court. The defendant company offers to pay reparation, albeit that is not sought, has pleaded guilty, was cooperative, has taken remedial steps, has supported the victim throughout and is a first offender and significant credit is sought for that. 
[9]
The only aggravating feature that I can see is the effect on the victim but he is a robust Kiwi who has suffered very little emotional harm. Any physical harm that he suffered he has made a full recovery from and the victim impact statement is very supportive. The victim and the defendant have known each other for a considerable period of time. In fact the principal of the defendant company learnt his trade from the victim. 
[10]
The mitigating factors are strong. There was an early guilty plea, there has been an acceptance of responsibility, remedial steps have been taken, there is the fact that the defendant is a first offender, there is the support to the victim and there is an offer of amends. 
[11]
I have to assess the overall seriousness of the offending. I am aware of all the policy reasons why we have this type of legislation and the safety of workers, whether they be employers or contractors, is paramount on any work site. 
[12]
I recently dealt with a case in November last year of Bed Rumours Limited. In that case the company had erected a mezzanine floor from which items were stored. Workers were required to recover those items from the mezzanine floor. One of the methods was going up on the platform on a forklift. On one occasion a worker fell from, I think it was 2.7 metres height, and suffered a broken wrist, concussion, a fractured jaw as well, some bruising and a laceration to his chin. In my assessment of that case, the risk of a fall was obvious, as it was in this case. 
[13]
When workers, whether they be employees or contractors, are working at heights of around three metres that has to be addressed because there is the risk of a fall, albeit I am of the view that if there was a fall then the likely injuries it would cause may be some broken bones, a leg at worst. Death is unlikely to ensue. If you were very unlucky you might break a back but it is not as if you are falling from a 10-storey building. 
[14]
In that case I fixed the starting point at $75,000. In this case there are similar circumstances in terms of risk and it was obvious that workers were working three metres above the ground and the circumstances were somewhat similar. The victim here did not suffer the physical injuries to the extent of the victim in that case but they are similar. 
[15]
The victim does not seek emotional harm reparation, although the defendant is prepared to pay so. There is a significant difference, however, between the two cases. In the Bed Rumours Limited case, the victim there was an employee so there was direct responsibility by that defendant company for its employee. Here the victim was a contractor, he was therefore independent and he was therefore responsible for his own decisions. He had 40 years in the business and so was experienced. 
[16]
The defendant had taken the precaution of speaking with him the day before about the risks involved. The victim had the ability to address the concerns or the risk that presented itself but did not take advantage of that. In my view the fact that the defendant had engaged a contractor to carry out the specific work and the discussions that were held the day before about the process significantly impacts or reduces the level of culpability of this defendant. That is, however, somewhat compromised and an adjustment to that needs to be made because one, if not both, of the workers at the other end of the truss were employees. 
[17]
The defendant knew that although he engaged a contractor that the contractor would be using his men and so he had a greater responsibility to his own workers, albeit I recognise at the end of the day they did not fall. I think the reason there was a fall was because of the victim knocking his glasses and then losing his footing or something like that. But there needs to be a reduction in the starting point in this case than what I had fixed in that Bed Rumours Limited case. 
[18]
I therefore, in this particular case, given the obvious risks that were known, I fix a starting point at $55,000. I order $5000 reparation to the victim. That is to compensate him for the pain and suffering that he sustained. There would have been inconvenience but it also impacts on family. There would be apprehension and anxiety. It is a modest amount but in fixing that I have taken into account that the victim is a robust Kiwi who in fact is supportive of the defendant and did not even seek reparation but I order it. 
[19]
As earlier stated, the defendant is entitled to significant credit for his guilty plea, remorse, offer of amends, support, co-operation, being a first offender and remedial work taken. I give a global reduction of 50 percent from the $50,000, having deducted the $5000. That is a fine of $25,000. 
[20]
I have seen the financial details. I am satisfied that there is an ability to pay over a period of time and there are costs of $132. 

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