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Safeguard OSH Solutions - Thomson Reuters

Safeguard OSH Solutions - Thomson Reuters



OSH Tracker

Worksafe New Zealand Ltd v Pearce Flooring Ltd (DC, 17/04/15)

OSH Tracker

Defendant:
Pearce Flooring Ltd
Pearce Flooring was convicted and discharged on three HSE Act charges relating to exposing an employee to asbestos after linoleum containing asbestos had been lifted, ground up and disposed of (Rotorua DC, 17 April 2015). 
Industry:
Not Elsewhere Included
Sub-Industry:
None
Risk:
Hazardous substance exposure
Harm:
None
Penalty Amount:
$0.00
Reparation Amount:
$0.00
Appeared in Safeguard issue 151

Judgment Text

NOTES OF JUDGE P W COOPER ON SENTENCING 
Judge P W Cooper
[1]
In this case, the defendant company is charged with offences under the Health and Safety in Employment Act 1992 and the Health and Safety in Employment (Asbestos) Regulations 1998. 
[2]
The charges arise out of a job that was done by the company in March 2014 when, in the course of laying carpet in part of a customer's house, asbestos was subsequently discovered. 
[3]
The company's position is that it was completely unaware of the presence of this asbestos, which was in the backing of lino, in the house. There was lino in a number of areas of the house; lino under carpet in a dining area and other lino. The company's brief was to lift the carpet and replace it and to lift the lino in areas where there was lino and replace that. 
[4]
The director of the company, who looked at the job, is a person with many years experience. He was clear in his mind that the vinyl that he could see was vinyl of modern manufacture where there were no issues in relation to asbestos as part of the backing. At the stage that he looked at and priced the job, he was completely unaware of any vinyl at all under the carpet that had to be lifted in the dining area. 
[5]
The workers of the company went ahead and did the job. When they lifted the carpet in the dining area, they found other lino, which they set about lifting and grinding. Later on, pieces of lino were found and that lino was examined and the view of the inspector is that it was not only the lino under the carpet that contained asbestos, but also the lino in other areas of the house, something which is firmly disputed by the company. 
[6]
One of the difficulties in sorting out that dispute is the fact that there was other work being done in the house in relation to the ceiling, where there was asbestos and the position of the company is that any asbestos that might be found in lino, other than that which was under the carpet, was asbestos contamination from other work that was being done in the house, or asbestos contamination from the lino under the carpet, of which the company was completely unaware. It would be difficult to adequately assess the culpability of the company without assessing and determining that dispute of the facts. 
[7]
The practical reality, in this case, is that the company is in a very dire financial position. The Court has seen affidavits from the company's financial advisors and without going into the details of the company's plight in open Court, it is clear that the company's financial position is parlous to say the least. 
[8]
So whatever award the Court might make by way of either reparation or imposition of a fine, it is clear that the company's financial position is such that it simply could not pay either an award of reparation or a fine. 
[9]
The position of the prosecutor is that it would like to mark this offending by way of a conviction and is not so concerned about the further penalty, the point being that the prosecutor wants to reinforce the message that checks need to be made for asbestos in any circumstances where asbestos might be present. That is a good safe message to send to the industry. 
[10]
In this case, the defendant company will be convicted and discharged. I am satisfied that it does not have the financial ability to make payment of either reparation or fine. 

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