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Safeguard OSH Solutions - Thomson Reuters

Safeguard OSH Solutions - Thomson Reuters



OSH Tracker

WorkSafe New Zealand v Roof Manufacturers Ltd (DC, 13/05/14)

OSH Tracker

Defendant:
Roof Manufacturers Ltd
ROOF MANUFACTURERS, trading as Roofman, was fined $25,000 and ordered to pay reparation of $10,000 after an employee suffered a dislocated and crushed wrist in the clamp of a metal folding machine (Tauranga DC, 14 May 2014). 
Industry:
Manufacturing
Sub-Industry:
Metal Product Manufacturing
Risk:
Machinery (trapped, crushed, cuts)
Harm:
Injury
Penalty Amount:
$35000.00
Reparation Amount:
$10000.00
Appeared in Safeguard issue 145

Judgment Text

NOTES OF JUDGE T R INGRAM ON SENTENCING 
Judge T R Ingram
[1]
Roof Manufacturers Limited face a single charge of being an employer that failed to take all practicable steps to ensure the safety of an employee whilst at work. 
[2]
The particular hazard that Mr Neely was exposed to was a crush injury, resulting from the use of a mechanical folder machine used in sheet metal working. 
[3]
This offence occurred on 30 July last year, when an employee reached into the machine which requires to be operated by two persons, to clear something from the machine. The other person commenced the folding operator, trapping and quite seriously injuring the hand of the person reaching in. It is particularly galling that this type of kind of injury should occur, given that this machine is specifically designed to prevent this type of injury occurring. This machine is provided in a format that allows it to be operated by two persons through the use of pedals based some distance apart, preventing the machine from being operated, unless both pedals are pressed down, 
[4]
The evidence before me satisfies me that this company and its employees did not realise that this machine had that operational feature. As soon as it was identified they took the necessary steps not only to commence operations under that procedure, but also to back it up with yet another available piece of technology which has recently become available, namely a laser system of prevention of operation if any unauthorised person is within range of the machine. 
[5]
The injury suffered was a substantial one and although it did not result in the loss of a limb or a digit, it nevertheless was a serious injury which eventually required the injured man to face the reality that he would no longer be able to carry out the kind of work that he had been carrying out, despite the defendant's best efforts to keep him in its employment. He has had to leave that line of employment. It is clear that he will have this injury and its affects with him for a long time to come. 
[6]
The maximum fine on a charge of this kind is $250,000. There is no other penalty specified. 
[7]
The correct approach to be adopted to sentencing under the Health and Safety in Employment Act 1992 was set out in considerable detail by the High Court, Department of Labour v Hanham and Philp Contractors Limited HC Christchurch CRI-2008-409-2, 18 December 2008. This approach involves assessing, firstly, the amount of any reparation to be paid, secondly, the level of any fine, and a third step, to carry out a methodical assessment of the level of a fine. Then finally making an overall assessment. 
[8]
The first issue is the level of reparation. I do not need to consider this in great detail, other than to say that the prosecution and defence have discussed the matter and agreed on a figure of $10,000. Much of the material on which that assessment is based is before me and I accept that as being a thoughtful and carefully calculated figure, which I endorse. There is no difficulty with paying that amount and I accordingly am required to consider that amount in the context of the fine. 
[9]
It is also desirable that I at least mention that the defendant company has done a great deal more than simply offer to pay $10,000. They have made practical amends by keeping the injured man on the payroll and paying him whilst he was injured, providing him with what amounted to part-time work and paying him his full wage. Providing him with supermarket vouches and making sure that he was able to meet medical appointments and attend to the other requirements of daily life, by providing him with a driver as required. Those are matters which I take into account. 
[10]
In terms of fixing the amount of the fine there are a number of matters that I am required to address, including the specific statutory purpose of denunciation and deterrence, both general and specific and holding this company accountable for the harm that they have done. The banding approach set out in the R v Taueki is the approach which has been accepted by the Court in Hanham and Philp Contractors Limited case. There, three broad bands were recognised. Low culpability would generally involve fines of up to $50,000, a medium culpability fine of between $50,000 and $100,000, with higher culpability above that. 
[11]
A number of factors to consider in relation to assessment of culpability. First, the identification of the operative acts or omissions — in this case its omissions — and identifying the practicable steps which the defendant could have taken under the Act. Obviously here, the thing that was required was recognising and then setting up the machine for a two-person operation. The evidence satisfies me that this machine has been with the company for some time now and a number of employees with the company were there when it was set up. Nobody in the company was aware that the machine could be set up for a two-person operation with two pedals, as a safety mechanism. 
[12]
Secondly, it is clear to me on the evidence, that the injured man was trained not to do what he did, but that training clearly was not sufficient to meet the temptations put before him, in terms of getting through the work that he had to do. 
[13]
To their credit, the defence accept those points. They accept that there should have been a policy of a two-person operation and certainly enquiries of the manufacturer probably would have revealed that a safer method of operation was available, I accept that it has been established that setting up a two-person operation was a practicable step, not just relying on training. Of course, the company have also gone to the extent of providing the laser detection system as an additional safety measure, which should be an all but complete bar to any further injury of this nature. 
[14]
I turn now to assess the nature and seriousness of the risk of harm occurring as well as the realised risk, Obviously, the risk of harm is injury which could be pretty serious given the type of machine. The risk of harm, really, is a serious risk. 
[15]
Assessing now the degree of departure from the standards prevailing the relevant industry, I accept industry standards prevailing have generally been met, to the extent that I am satisfied that experienced people in this industry have no idea, often, that these machines are capable of being set up in a way which will preclude this type of accident, In particular, the principal of this company has 14 years in the industry and simply did not know that these metal folders could be set up in this way. Accordingly, the falling below widespread industry standards is not a feature of this case. I accept that the hazard was obvious and I am persuaded, given the availability and the cost effectiveness of the means necessary to avoid the hazard, it was fairly obvious and something should have been done about trying to ensure that an accident of this type did not occur before the accident occurred. 
[16]
I have taken into account the current state of knowledge of the risks and the nature and severity of the harm which could result from unguarded machinery of this kind. I have concluded this machinery posed a moderately severe risk of causing injury of the kind suffered by the complainant, in the state in which it was set up. 
[17]
On the current state of knowledge the means available to avoid the hazard or mitigate the risk is such that the defendant ought to have identified readily available means of avoiding the hazard and mitigating the risks, by setting up a two-person operation and not just relying upon training. 
[18]
I have accordingly reached the conclusion that the level of culpability of the defendant is properly assessed as falling on the boundary between low and medium culpability. The prosecutor sought to persuade me that a fine in the region of $90,000 would be an appropriate starting, which would be an assessment towards the high end of the medium range. I simply do not accept that here. Primarily, because we have an experienced operator in this industry simply having no idea that a machine with the built-in capacity could have been set up in a way which would have precluded this. I am not satisfied that it is general knowledge, within the industry, that such a machine can be set up to preclude this type of injury or this opportunity for injury. 
[19]
I turn now to consider adjustment for aggravating and mitigating factors. The aggravating factors here are, obviously, the nature of the harm caused, the losses that the victim has suffered and to a much more limited extent, his vulnerability given the type of machinery and the type of work and the workflow that is required to operate it. There are, of course, no prior convictions here and that is a major mitigating factor. The defendant company has pleaded guilty at the earliest possible opportunity. I cannot pass over the fact that the victim did something he had been trained no to do. I accept that the defendant company have done every single thing that is opened to them, both to assist the victim and to ensure that there is no further repetition of this type of injury, as a result of incorrect operation of the machine. In short, I accept that the machinery has now been made as safe as it is possible to make it and I take into account the company's good record. 
[20]
I accept that this defendant has shown remorse in a practicable way. They have paid the victim more than they are required by law to pay him, provided him with part-time work, supermarket vouches, driven him to and from medical appointments and the supermarket. Of course, they have made the offer of reparation, which the prosecution has considered and regards as an acceptable level of reparation. 
[21]
The company has co-operated with the authorities, not only in relation to the investigation and prosecution of the offence. Also in relation to remedial action that can be and has been taken to prevent any recurrence of this accident, by setting the machine up so it can only be operated by two persons standing on separate pedals at the same time and providing a laser system, costing something in the order of $10,000. 
[22]
I am required under the Sentencing Act 2002 to hold this defendant accountable and promote a sense of responsibility and denounce the offending conduct and deter the defendant and others from like offending and to protect the community with the sentence imposed. This is a moderately serious offence. The sentence must consistent with sentences imposed on other cases. Although I do not propose to review them in detail, counsel has drawn my attention to other cases which stand and fall on their own facts. 
[23]
I am required to consider the effect of offending on the victim and consider where there are any particular circumstances of the offender, than an otherwise appropriate sentence would be disproportionately severe. With a company, that simply does not arise here, because the company is well able to pay the kind of penalties that are to be imposed today. I have to consider the victim's vulnerability together with the extent of the loss and harm resulting. The company, of course, has no prior convictions and they are entitled to credit for the guilty plea, the remorse and the amends offered, 
[24]
This is a case where there is some insurance cover, but in this particular case I do not consider that has any effect herein, 
[25]
The authorities reveal that a reduction in the order of 10 to 15 percent in the level of fine is appropriate, to recognise an order for reparation in the case of an offender with adequate means. Here, I assess the appropriate reduction as 15 percent. I allow a further 10 percent, to reflect the defendant's good record and a further 10 percent, to cover remorse and amends which amounts to the support, both financial and practical, which has been provided to help at the time of the greatest need namely, money, employment, a ride when needed. Those total 35 percent and there must, of course, be a reduction for the earliest practical plea, of 25 percent in accordance with the authorities. The financial resources here are not a limiting factor. 
[26]
My overall assessment of the matters is that the total imposition on the defendant, the reparation and the fine must be proportionate to the circumstances of the offending and the offender, against the background of the statutory purposes and principles of sentencing. I take a starting point of $50,000 being on the cusp of between the low and the medium bands, I would allow 35 percent for the reparation offer, the other amends made, the remorse and the good record. That would require a reduction of the sum of $17,500 which would take this down to $32,500. Then, there is the matter of credit for a guilty plea, which in this case must be 25 percent, because it was entered as early as possible. That would technically produce a figure of $24,375 but, in my view, that should be rounded up to $25,000. 
[27]
Taking into account the amends which have been made and involve a considerable expenditure of time, effort and money together with reparation of $10,000, a fine of $25,000 would be an appropriately proportional penalty in the circumstances of the offending by this victim, 
[28]
The defendant will thus be convicted and fined the sum of $25,000. 
[29]
The defendant is ordered to pay reparation in the sum of $10,000, to be paid in one lump sum by 20 June 2014. 
[30]
I thank counsel for their excellent submissions. 

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