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Safeguard OSH Solutions - Thomson Reuters

Safeguard OSH Solutions - Thomson Reuters



OSH Tracker

WorkSafe New Zealand v Consolidated Alloys (NZ) Ltd (DC, 26/06/14)

OSH Tracker

Defendant:
Consolidated Alloys (NZ) Ltd
Consolidated Alloys (NZ) Ltd was fined $38,000 for a s6 breach of the HSE Act and ordered to pay reparation of $20,000 after an employee’s gloved hand became caught in the unguarded pinch point of a lead sheet roller. He suffered a fractured little finger and serious burns to three fingers, requiring skin grafts (Auckland DC, 26 June 2014). 
Industry:
Manufacturing
Sub-Industry:
Metal Product Manufacturing
Risk:
Burns/explosion
Machinery (trapped, crushed, cuts)
Harm:
Injury
Penalty Amount:
$58000.00
Reparation Amount:
$20000.00
Appeared in Safeguard issue 146

Judgment Text

NOTES OF JUDGE J P GITTOS ON SENTENCING 
Judge J P Gittos
[1]
The defendant company, Consolidated Alloys (NZ) Limited has pleaded guilty to a single charge laid under the provisions of s 6 Health and Safety in Employment Act 1992 of failing to take all practicable steps to ensure the safety of an employee whilst at work. The practicable steps which have been identified as not having been taken were a failure to screen or apply guards to protect the worker from contact with revolving machinery, rotating rollers which have the added hazard of being rollers that were handling a hot material, namely lead which had been recently melted and formed into a sheet form. 
[2]
The workman concerned was a longstanding employee of the company who had been working with this machinery without incident for many years, it would seem. The machinery concerned was machinery which was devised to form lead into a sheet which was rolled on a roller. The method of dealing with this was to heat lead in an upper vessel to boiling point, the lead was then taken up on a cooled roller that was passed through the molten lead and formed into a sheet by a blade engaging with the roller. The sheet lead then was led down to a lower level, passing through a number of rollers on the way and rolled up onto a reel which was cut off at various points when loading was to the degree required. The bottom reel taken away and replaced with a new core and the process repeated. 
[3]
The injured workman's task was to supervise the rolling on of the lead onto the reel at the lower level and it seems that the nature of his duties was limited simply to notifying the workman at the upper level when the capacity of the reel had been reached so that the sheet of lead would be cut off at the upper level, the winding on procedure terminated, then the two men would both be required to remove the reel from the bottom level. 
[4]
As the case was put to me, it was not the injured man's task to interfere with the machinery in the course of the winding operation but that is evidently what he did on this occasion. He observed that a wrinkle was developing in the lead as it was rolling on to the bottom roller and used a gloved hand to try to smooth this out and prevent it from continuing. Having done so, he got his hand caught in the rollers, it was jammed, the other worker at the upper level had to stop the machinery and disassemble some of it in order to free his hand which in the meantime was both crushed and quite seriously burnt by the hot lead. 
[5]
An account of the injuries that he has suffered and the ongoing disability has been put before the Court and it is clear that this man has had painful, disfiguring and disabling injuries to some of the fingers of his right hand which are a disability and an embarrassment to him. In the scale of things I would regard these injuries as being moderately severe as they are to the right-hand and are plainly a matter of embarrassment and concern to him. 
[6]
He has been able to return to work. The company has adopted a very responsible attitude to this injury, it being apparently the first in many years operation at this workplace. It has been thoroughly supportive of the worker and generous to him, offering him employment back again and making a, what can be seen on the basis of the reported levels of compensation that have been directed in prosecutions of this time, a generous offer of compensation to him which he has accepted. There has been a successful restorative justice intervention and the company has since taken steps to ensure that such a thing cannot reoccur by completely fencing the moving machinery. So in terms of its response after the event, the company's attitude has been exemplary and the prosecution does not shy away from the proposition that a full discount should be allowed both for the plea of guilty and for reparation and remorse. 
[7]
The obvious hazards I suppose, with this operation, are common to all positions where there is revolving or rotating machinery operating without being fenced off or shielded from employees who may come into contact with it and there is always a risk that an employee may do the sort of thing that this man did on this occasion and there is also a risk that an employee working in the vicinity of moving machinery of that kind, might be inadvertently drawn into it through loose clothing or anything of that sort becoming engaged. That is a pinch point hazard that is common to a lot of industrial processes and is a very well known hazard which ought to be screened or shielded at all times. There is the added hazard in this case of the heat of the material being processed which, should anybody be drawn into the machinery as this unfortunate man was, is another hazard which in the event the injured man suffered the effects of as well. 
[8]
In its submissions, counsel for the company points out that this operation has been run in the form that it was at the time that this accident occurred for many years and that a similar setup in Melbourne in Australia has also been operated in that way for a long time without any injury being caused to anybody. It is emphasised that it was no part of the injured man's work description to put his hands into the machinery in the manner that he in fact did. That however must always be a risk which employers need to be aware of and need to guard against and that has now been done by the provision of appropriate guards on the machine. 
[9]
I have been amply assisted by comprehensive written submissions from both counsel which have set out all the leading authorities in relation to this sort of prosecution and a number of other cases where sentences have been imposed which are of anecdotal assistance to the Court in trying to determine what is a proper response to the situation here. The only real point of difference between the assessment the prosecutor makes and that of defence counsel is as to what the start point for a fine should be. No issue as to ability to pay is raised. The prosecutor contends for a start point in terms of culpability in the medium band of the gradations set out in the leading authority Hammond v Thorpe. For the defence, Mr Beadle contends that a rather lower level in the 60 to 70,000 range would be appropriate so there is not really a great deal of difference between the parties as to where this matter sits. 
[10]
Although an assessment and recommendation to the defendant company about the level of reparation that should be offered was made by counsel and responsibly made, on the basis of reported Court rulings on reparation, it seems to me that reparation in these matters should always be kept under review in terms of quantum. Most people I think would not wish to suffer the sort of injury that this man has suffered and indeed while reparation in these cases needs to be distinguished from damages for personal injury, I think it behoves the Court to be generous in making some award that gets a little closer to the real compensatory element that is involved here. 
[11]
I accept the company has unhesitatingly paid at what could be seen as the upper end of the scale a sum of $15,000 nevertheless I think somewhat more than that is appropriate to the injury that this man received and I make an award of reparation of $20,000 which the company is directed to pay, that of course is inclusive of the money already paid, so it is a further $5000 to be paid to the injured man. Having regard to the increase there, over and above what the prosecution was really asking for, the fine I think can be pitched at a level which is somewhere between the level that the prosecutor contends for and that which defence counsel considers appropriate. 
[12]
I think while the company may well have had the view that a long period of uneventful use of this machinery unguarded was some reassurance as to its safety, the events have proved otherwise and there is always an obvious risk with unguarded machinery. I fix the fine at start point of $70,000. I accept the prosecutor's figures which are not challenged really by the defence, that it is appropriate that discounts of 15 percent for reparation and 10 percent for remorse and general mitigating factors are appropriate. That takes 25 percent off the start point, leaving a net sum of $52,500 which is to be further reduced by 25 percent for a prompt and responsible plea of guilty. In the end, rounding that down a little, I come to a fine of $38,000. So in summary the company is convicted and ordered to pay reparation of $20,000 a fine of $38,000 and Court costs of $130. 

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