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Safeguard OSH Solutions - Thomson Reuters

Safeguard OSH Solutions - Thomson Reuters



OSH Tracker

Work Safe New Zealand v Morton (DC, 17/12/14)

OSH Tracker

Defendant:
Glen Morton
Glen Stephen Morton, trading as Town and Country Wood Supplies, was fined $45,000 and ordered to pay reparation of $30,000 after an employee operating a wood splitter had his left hand amputated when he reached in to clear a blockage while the machine was on automatic; it was later surgically re-attached (Gore DC, 17 December 2014). 
Industry:
Wholesale Trade
Sub-Industry:
Basic Material Wholesaling
Risk:
Machinery (trapped, crushed, cuts)
Harm:
Injury
Penalty Amount:
$75000.00
Reparation Amount:
$30000.00
Appeared in Safeguard issue 151

Judgment Text

NOTES OF JUDGE C L COOK ON SENTENCING 
Judge C L Cook
[1]
Mr Glen Morton has pleaded guilty to one charge of failing to take all practical steps to ensure the safety of his employee, namely Justin McLean, while at work, in that he failed to take all practical steps to ensure that Justin McLean was not exposed to hazards arising out of working with a wood splitting machine. 
[2]
The maximum fine for this offence is a fine not exceeding $250,000 and is laid under ss 6 and 51(a) Health and Safety and Employment Act 1992. 
[3]
The facts are that Mr Justin McLean was a yardman who had worked for the partnership that trades as Town and Country Wood Supplies. Mr McLean had been working for the partnership for approximately four years but had been working with the wood splitting machine for approximately two to three weeks prior to the accident. On 8 April at approximately 11.00 am Mr McLean was standing in front of the splitter blade on one of the wood splitting machines alongside the out-feed conveyer. He reached in with his left hand to clear a blockage. The blade was operating in automatic mode and on its downward stroke it amputated Mr McLean's left hand and it was caught between the blade and the ring of wood to be split. 
[4]
It is accepted by everybody that Mr McLean has suffered serious harm and that he has required surgery to attach his severed hand. I am grateful to counsel for the comprehensive written submissions which have been provided both by the prosecution and the defence. I do not intend to go through those submissions in great detail. 
[5]
The approach that I need to take today is agreed by both parties. It follows a decision called Department of Labour v Hanham & Philp Contractors Limited & Others (HC Christchurch, 18 December 2008 CRI-2008-409-000002). The sentencing process that I need to go through today involves three main steps. The first of the steps is to assess the amount of reparation, then I need to fix the amount of the fine, then I need to make an overall assessment of a proportionality and appropriateness of the total imposition of reparation and the fine. 
[6]
The first step is to fix reparation. That involves a consideration of a statutory framework and take into account any offers to amend. Whilst I take into consideration financial capacity of the offender, that has not really been a focus of the submissions in front of me today. 
[7]
The second step is to fix the amount of fine. The role that I will take in doing that is to fix a starting point on the basis of culpability for the offending, and adjusting that starting point upwards or downwards for aggravating and mitigating circumstances relating to the offender. Again in this case, as I understand from the submissions, it is accepted that this is not a matter where there have been aggravating circumstances, and it is largely agreed as to the extent and the amount of mitigating circumstances although they have been differently framed in the prosecution and the defence submissions. 
[8]
What I must do is assess the starting point of the fine which involves the assessment of culpability for the offending and that is fixed in reference to a scale. It is accepted in this scale that we are looking in the range of medium culpability. That scale has a fine in the region between $50,000 and $100,000 and, as I have indicated, in this case it will be assessed on a downward basis to take into consideration both the guilty plea and mitigating factors. 
[9]
I say at the outset that my role is in some ways (and it has been mentioned in the cases that have been referred to) difficult and distasteful, for want of a better word. What I have to do is come to a monetary figure which will provide both reparation and a fine amount. That can in no way compensate and should in no way be taken as a detraction from the events which have occurred and for the impact that this offending has had on Mr McLean, but I have to undertake quite a structured exercise to come to a final point and that must be in reference to a monetary penalty. 
Reparation 
[10]
In terms of dealing with the reparation position as I have indicated I have received helpful submissions. The prosecution suggests that the reparation figure should be between $30,000 and $40,000, whereas the defence position put that in the amount of approximately $25,000. As I have heard from the oral submissions the suggestion is that this case, from a defence point of view, is very similar to the decision of Department of Labour v Ancient Kauri Wood Products Limited DC Kataia CRI-20111-029-000171, 11 August 2011. I accept the submission from the prosecution, however, that on my reading of the Department of Labour v Ancient Kauri Wood Products Limited decision, the victim in that case had been able to return to work, albeit on limited hours, and I accept that that is somewhat of a distinguishing factor. 
[11]
It is unclear from the facts as to the exact extent of the restriction on the hand of the defendant in that case, but I take into consideration and I have had an opportunity to read, the victim impact statement in this case. It is clear from Mr McLean's statement that, as the prosecution say, the use of his hand is extremely limited. He is attending physiotherapy twice weekly and he feels that he is caught in limbo. He is worried that he may not have the ability to work and support himself fully in the future. 
[12]
Also in the victim impact report he talks about the pain that he suffers and the medication that he takes on a daily basis. I heard the submission from the defence in regard to the breakdown of a relationship with Mr McLean and his family, I am not able to give weight to that submission one way or another. It would be normal in my view for Mr McLean to clearly be under some pressure and some stress. As I read it from his background, he had previously been working in a physical role through his adult life, and the changes that have occurred as a result of this accident must be accepted to be hugely substantial for him in his day to day living and that is reflected in the victim impact report. 
[13]
I have had an opportunity to read the previous cases. Clearly, every case is different and every fact situation must fall on its particular facts. I have had the opportunity to read the decision of Worksafe New Zealand v Hunter Laminates Nelson Limited DC Nelson CRI-2014-042-000957, 1 October 2014, where there was an award of reparation in the amount of $35,000. In that case there were extensive injuries to one leg in particular and the other leg was also injured with the victim. I have also taken into consideration the decision of Department of Labour v Solid Energy New Zealand Limited DC Greymouth CRI-2013-018-000090, 30 July 2013, but the facts in that case, in my view, can be distinguished in terms of the nature of the accident and also the personal circumstances of the victim in respect of that matter. 
[14]
The closest case that I found in terms of the factual position, as I think counsel accept from my reading of their submissions, is the decision of Department of Labour v Ancient Kauri Wood Products Limited. In that case as I have indicated whilst the facts are very similar, I would distinguish this case because in my view the impact of the accident on Mr McLean in these circumstances appears to be more serious on the facts that I am aware of, in comparison to my reading of that decision. 
[15]
Taking all of those factors into consideration as best I can in terms of both the facts in front of me and also the decisions that I have read, in my view looking at the issue of the reparation, a figure of $30,000 for reparation would be appropriate. Accordingly I make an order that there is a payment of $30,000 in terms of reparation. 
Fine 
[16]
I must now deal with the issue of the fine. Again I comment that each case must fall on its factual circumstances and my role, as best that I can, is to try and assess the culpability of Mr Morton, taking into consideration the approach which I have previously outlined. Also, my role is to hold Mr Morton accountable for the harm that has been done to the victim, to promote in Mr Morton a sense of responsibility and acknowledgement of that harm and to provide for the interests of Mr McLean, and to denounce the conduct in which Mr Morton was involved and to deter Mr Morton and other companies or operators from committing the same or similar offences. I take into consideration the gravity of the offending, the seriousness of the offence, the need to be consistent with other decisions, and as I have indicated the effect of this offending on Mr McLean. 
[17]
The prosecution submits that my starting point should be in the region of $90,000. They say that the defendant could have undertaken practical steps to ensure that the front of the wood splitting blade was guarded, to ensure that their workers were adequately trained and supervised in the safe operation of the wood splitting machine, and that they should have undertaken a risk assessment to have a safe operating procedure put in place for the machine. 
[18]
The defence say $70,000 is an appropriate starting point. The defence say, as has been addressed to me this afternoon and highlighted, that this was a blade which did not continuously revolve, it was a slow moving blade, and I have undertaken the exercise in accounting the seconds of the blade's rotation and I accept that that is a factor which I can take into consideration. 
[19]
The defence also say that there was a genuine failure to appreciate the risk, and that was, as I understood, in large part due to the positioning of the blade and the speed in which the blade moved, particularly on its downward rotation. They also say that Mr McLean was trained in the use of the machinery and that Mr Morton did provide supervision to the job site on 90 percent of the time. 
[20]
They accept that there was no guard and they accept that that could have been installed but they also sought the assistance of engineers to build the machine, and as I understood from the submissions there had been other machines which operate within this area without the guard. 
[21]
I accept those defence submissions to an extent but - and it was brought home by my looking at the nature of the blade - that this was an inherently dangerous operation and that whilst there was supervision in 90 percent of the time, this accident occurred when there was no supervision on the site. I accept that there was a failure to provide a guard and even if the movement of the blade was slow, in my view the nature of this inherently dangerous machine meant the risk should have been appreciated. 
[22]
Taking all of those factors into consideration, I accept that there should be some movement downwards from the prosecution position, but I do not accept that it comes to the level of the starting point as set out by the defence. 
[23]
In my view it is appropriate to take, in essence, a mid-way point and I adopt a starting point in respect of the fine in the amount of $80,000. I deduct 25 percent being a full deduction for a guilty plea in respect of this matter. I deduct a further 25 percent for mitigating factors. I have read the submission from the defence in terms of the steps that had been taken and I accept in this case that there was the lack of appreciation in terms of the risks which could have, and did, occur on this occasion. Therefore I take a further 25 percent being a full allowance for mitigating factors and the fact that I have made a separate award in respect of reparation. 
[24]
That leads me to a final position in respect of this matter of $45,000 in terms of the fine. 

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