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Safeguard OSH Solutions - Thomson Reuters

Safeguard OSH Solutions - Thomson Reuters



OSH Tracker

WorkSafe New Zealand v Halls Direct Ltd (DC, 16/04/15)

OSH Tracker

Defendant:
Halls Direct
Hall’s Direct was fined $50,500 and ordered to pay reparation of $25,000 after one of the company's trucks reversed into one of its employee at a customer's loading bay in Auckland, fracturing his ribs and spine (Auckland DC, 16 April 2015). 
Industry:
Transport and Storage
Sub-Industry:
Road Transport
Risk:
Vehicle - road (eg truck, car, bus)
Harm:
Injury
Penalty Amount:
$65500.00
Reparation Amount:
$15000.00
Appeared in Safeguard issue 151

Judgment Text

NOTES OF JUDGE DAVID SHARP ON SENTENCING 
Judge David Sharp
[1]
Halls Direct limited is for sentence having pled guilty to one charge pursuant to s 6 and s 50 of the Health and Safety and Employment Act 1992. The maximum penalty under this provision is a fine not exceeding $250,000. 
[2]
Accountability, responsibility and deterrence are necessary aspects of such sentencings and the prosecution suggest I prioritise those aspects of the Sentencing Act 2002. I am also bound to take into account reparation, the potential steps that might be taken as rehabilitation and which could mitigate any possible future health and safety issues. Also I must apply the least restrictive outcome as is consistent with the principles and purposes of the Sentencing Act. 
[3]
All sentencings in such cases refer to the Department of Labour v Hanham and Philip Contractors Limited1
| X |Footnote: 1
Christchurch High Court CRI-2008-409-000002 18 December 2008 
and Department of Labour and de Spa and Company Limited2
| X |Footnote: 2
[1994] ERNZ 399 (HC) 
. These cases are well known and contain references to a proactive preventative approach being required under the Act. The rationale is that prevention of harm to persons at work and the creation of safe work environments are important matters that the Courts will strive to support in sentences where circumstances show these objectives have not been met. Such sentencing will necessarily involve the imposition of substantial fines on defendants who fail to meet the appropriate standards. 
[4]
I am also referred to s 50 Health and Safety in Employment Act 1992. Three steps are called for under that provision. Firstly, the assessment of reparation in relation to the injured person. Just on this point I acknowledge Mr Lepou has filed a detailed victim impact statement concerning the effects of the injuries and the ongoing matters that have troubled him. 
[5]
The second aspect is to fix a fine and by and large that is done in reference to bands of culpability that I will describe in more detail later. The third step is the assessment of the proportionality and appropriateness of the total imposition of reparation and fines. 
Reparation 
[6]
The first step must be the difficult task of assessing reparation. I immediately acknowledge the responsible voluntary payment which the employer has made to Mr Lepou. The payment of $10,000 is a not insubstantial offer of amends. Even were I not specifically required to take such into account to me such a step shows responsibility, accountability and an approach consistent with remorse. 
[7]
I must, in assessing matters both of reparation and fines, assess the means of the defendant but in this case, as I understand it, a lack of means either to meet reparation or fines is not argued on the defendant's behalf. I note that while this point is not taken the defendant vigorously contests the starting point for sentence as suggested by the prosecution. 
[8]
The Act does give a priority to reparation and that seems fair given the recognition of the injury and the suffering that Mr Lepou has undergone. As I have said, and Mr Lepou has provided a detailed victim impact statement, he has recurring concerns about an accident which left him seriously injured. He speaks of his love of his work in the driving industry and it seems from his victim impact statement that his decision to look elsewhere for work was on the basis that he finds the physical requirements of driving difficult following the accident but also that he no longer can face aspects of his former work. 
[9]
The physical injuries he suffered were, five fractures ribs, three lumbar spine fractures, internal organ injuries, distended side, abdomen and bowel injuries. Purely as physical injuries these must be regarded as serious. Obviously some rehabilitation has taken place and Mr Lepou has recovered in part from the injuries but the nature of the injuries require ongoing assistance and cannot be said they have been completely overcome. The physical injuries are also unfortunately accompanied by anxiety, sleep disturbance, mood disorder, ongoing pain and other aspects that are also regarded seriously. 
[10]
In no way distracting from the seriousness of the injuries from the accident, regrettably Mr Lepou has other aspects which have made life more difficult. The contemporaneous health difficulties of his partner and his problem with melanoma are but two of the factors that have accompanied his injuries 
[11]
The defendant company sees the failure on Mr Lepou's part to acknowledge the effort that the company has made to make amends as a significant factor. For myself I can understand how a person such as Mr Lepou would find it difficult to make acknowledgement in respect of his former employer. That is not to say that the Court is not bound to take into account the fact that the attempt to make amends has occurred. The future for Mr Lepou has been by a large degree dictated by the accident and the requirement that is on the Court is to try to distil what proportion of difficulty relates solely to the accident. 
[12]
The prosecutor seeks emotional harm reparation in the sum of $40,000 together with an additional payment to supplement Accident Compensation payments that have left the defendant at a worse position than he would have been in had the incident not occurred. The defence maintain that such an approach is excessive and that the $10,000 already paid is sufficient. 
[13]
The defence look at other cases. Their facts and their application to this case vary widely. The Department of Labour v Hunter Laminates3
| X |Footnote: 3
CRI-2014-042-000957, Nelson District Court, 1 October 2011 
is said by the prosecution to be similar to the circumstances here. The defence distinguish this on the facts and on the basis that the injured person in that case had his leg almost severed. Here the rib injuries and fractures to the lumbar spine and other internal injuries are high level injuries, perhaps slightly less severe than what had happened in the Hunter Laminates case
[14]
I do have to acknowledge here that there was serious potential for loss of life and Mr Lepou's points about the fear that was created and his recurring nightmares about the incident, these are factors that I cannot set aside. As I have said there is something artificial in endeavouring to find an appropriate means of compensating injuries like this and I must say that I do so in deference to what Mr Lepou has been through and I can only say that the reparation that a Court can impose can only be an attempt to try to deal with the issues that incidents such as this brings with it. 
[15]
I consider that the emotional harm reparation in this case should be in the sum of $15,000, that is in addition to the $10,000 the company has paid already. 
[16]
I have had regard to the issue of whether there should be a payment to bring the Accident Compensation level up to the same level as would have been the case were the accident not present. I have considered the Sentencing Act provisions. They effectively incorporate what was long the position that legislation that is passed after events have occurred should not be used to impose penalties not in existence at the time. I take that general application further to the point that I consider that people are entitled to have the benefit of the law at the time as it was and not to have additional matters that may cause them to be further put at a disadvantage when the law is changed. It is that general principle that inclines me not to order the payment of the Accident Compensation uplift to up the point where Mr Lepou's wages would be met in full. 
[17]
The next point relates to the imposition of a fine. I am required to assess culpability. The system providing an experienced driver with a driver who was new to the class of vehicle involved, but in this case not a new truck driver. Clearly this was an attempt to provide a safety system for the person who was engaged in training. In practice here unfortunately it exposed Mr Lepou, an experienced driver, to a risk that he certainly did not expect and which unfortunately posed a serious danger to him. 
[18]
The application of the training system, in my view, broke down, the communication between the driver and Mr Lepou was not complete when it was unexpectedly interrupted by a site employee distracting Mr Lepou. The use of the truck's mirrors and a system for directions to the driver did exist but were in this case inadequate, as were the signs warning of the danger of the reversing vehicle. A reversing camera here was not working. 
[19]
It is conceded by the defence that in this case that reversing camera should have been in place. The question of whether the risk of harm could have been reduced or eliminated by the use of the camera is not something that can be fairly completely assessed. It may have made a difference but I cannot say whether this would be the case with certainty. 
[20]
I can say that although other means of operating a safe system without reversing cameras are available they were not deployed here. The range of situations involving heavy vehicles and their use means that I only take general reference to industry standards in assessing this situation. 
[21]
The prosecution have referred to the road code and roading guidelines but the defence say that the employment of New Zealand Transport Authority authorised persons to oversee drivers licencing and the training programme by the defendant company is a fair and useful system to provide safety in these circumstances. 
[22]
It seems clear that in relation to the dangers posed by reversing vehicles an obvious hazard arises. The signs to avoid the reversing vehicle are an example of how it is apparent to all that such vehicles do pose real threats to persons. The driver is not in a position to see directly behind the vehicle and if he loses sight of another person unloading or in the vicinity the approved action is to move the vehicle no further. In this case an inexperienced person fell below the standard the employer had wished to train him to. That is something that is a primary cause of the injuries that resulted here. 
[23]
As I said, a potential remedy might have been provided in respect of an operating reversing camera. The non-provision on the basis of cost of repair when measured against the potential risk does not do credit to the defendant company. 
[24]
The submissions that are made today have highlighted the fact that this omission has been a matter that has been traversed between the defendant company and its counsel and ultimately was a factor that was considered in the company's decision to enter a guilty plea to the charge. 
[25]
In this case many factors that might be referred to as aggravating gravity are contained within the consideration of the elements of the offence. It is on that assessment that a starting point must be established. 
[26]
In The Department of Labour v Hanhan and Philips, at paragraph 57, the High Court set a scale for offending with bands of fines4
| X |Footnote: 4
Accepting that a broad assessment is involved and that sentencing is not a mathematical exercise starting points should generally be fixed in accordance with the following scale. Low capability a fine of up to $50,000. Medium culpability a fine of between $50,000 and $100,000. High culpability a fine of between $100,000 and $175,000 
. In this case the respective positions of the prosecution and the defence differ. The prosecution submission is that this is a case of high culpability and a suggest a starting point for sentence on the basis of high culpability, that being in the region of $100,000. Understandably the defence position is that that is an excessive approach and that after consideration of relevant matters a starting point in the range of $70,000 would be appropriate. 
[27]
As the High Court had set out that sentencing in these matters is not a mathematical exercise. The sentence involves attempting to place the factors here such as the attempts made by the company to lessen the exposure to risk, the failure of the company to keep safety equipment in the condition it should have been in, the endeavour to provide experienced persons, all to be taken into account. 
[28]
In my view an appropriate starting point of this case is at the upper end of the medium range of culpability. I find a starting point should be $90,000. I allow the following discounts; I allow a discount in respect of the reparation and amends that are made in the sum of 10 percent; I allow remorse reparation as a discrete form of mitigation in the percentage of 5 percent. I allow the company a further discount in respect of its history of compliance, 5 percent; and I take into account a discount for plea in terms of Hessell v R [2010] NZSC 135Has partially negative history or cases citing, but has not been reversed or overruled[Yellow]  and I allow the full 25 percent in respect of the guilty plea. 
[29]
Accordingly, the sentence that I impose is a payment of $15,000 in reparation in respect of an additional payment to the payment already made by the company and that payment must be made within 21 says. 
[30]
In addition there will be a fine of $50,500, that is a fine and arrangements with the registrar can be made in respect of that matter. I make no other orders in respect of this. 


Christchurch High Court CRI-2008-409-000002 18 December 2008 
[1994] ERNZ 399 (HC) 
CRI-2014-042-000957, Nelson District Court, 1 October 2011 
Accepting that a broad assessment is involved and that sentencing is not a mathematical exercise starting points should generally be fixed in accordance with the following scale. Low capability a fine of up to $50,000. Medium culpability a fine of between $50,000 and $100,000. High culpability a fine of between $100,000 and $175,000 

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