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Safeguard OSH Solutions - Thomson Reuters

Safeguard OSH Solutions - Thomson Reuters



OSH Tracker

Worksafe New Zealand v KiwiRail Holdings Ltd (DC, 17/09/15)

OSH Tracker

Defendant:
Kiwirail Holdings
KiwiRail Holdings Ltd was ordered to pay $110,000 in reparation to a contractor's employee whose digger was struck by a train on the Raurimu Spiral after KiwiRail staff gave the all-clear for a goods train to enter the part of the track being worked on. There were multiple communications failures. The man was severely injured and 12 months later still requires care around the clock (Auckland DC, 17 September 2015). 
Industry:
Transport and Storage
Sub-Industry:
Rail Transport
Risk:
Struck by moving object
Harm:
Injury
Penalty Amount:
$110000.00
Reparation Amount:
$110000.00
Appeared in Safeguard issue 154

Judgment Text

NOTES OF JUDGE P A CUNNINGHAM ON SENTENCING 
Judge P A Cunningham
[1]
KiwiRail Holdings Limited, which holds the assets of KiwiRail New Zealand, New Zealand's rail operator, faces two charges and there are two charges to be withdrawn. The charges for sentence are failing to take all practicable steps to ensure that Paul Anderson, who was an employee of Downer, was not harmed while carrying out work on the track near Raurimu on 17 June 2014 and, on the same date, failing to take all practicable steps to ensure its employees were not hit by a train. 
[2]
Mr Anderson was operating a digger on the rail track on the Raurimu Spiral, National Park when the digger he was operating was struck by a north-bound goods train. Mr Anderson was working around a corner of the track and out of sight of the other track workers. The track workers for KiwiRail Holdings Limited gave the all-clear for the train to move through the site where Mr Anderson was working. 
[3]
I have been given some additional facts today which are not disputed and that is that Mr Anderson had not actually started working on the day in question this accident happened in the morning. There had been a signal given which some workers saw as indicating that a train was coming and it has to be assumed that Mr Anderson either did not see that signal or did not understand it. 
[4]
The north-bound train proceeded through the work site and was unable to stop. The boom of the digger struck the cab of the train. Mr Anderson suffered severe and life-threatening injuries. A medical team had to be flown by helicopter into the site to carry out emergency medical procedures to stabilise him before he could be taken by another helicopter to Waikato Hospital. 
[5]
He sustained injuries including severe traumatic brain injury and severe chest and lung trauma. He was in an induced coma for three weeks and after 12 months, he still requires 24 hour hospital level care. His prognosis for recovery is extremely poor. 
[6]
The KiwiRail train driver was exposed to the risk of harm as well as Mr Anderson and anyone else in the vicinity. There has been an inspection carried out by WorkSafe. One of the things that has been identified in that investigation is that there is poor reception for radio communications in the site. 
[7]
There are national rail system standards that need to be met as well as the New Zealand Transport Agency's safety licensing and audit guidelines. There was a KiwiRail Safety Case approved by NZTA on 13 April 2013 and track safety rules issued on 6 October 2013 and a further KiwiRail document called ONTRACK OM94001, effective date 10 May 2006. 
[8]
The summary of fact identifies a number of failures in terms of KiwiRail's procedures at that time. They include such things as allowing the digger to be on the track without permission but I think it probably makes it clearer to everyone if I repeat what Ms Petricevic told me this morning. The main failures were failing to make sure that the track was clear before the train was signalled to proceed. It has been explained to me that the train has stopped at a buffer prior to the worksite, it being known that there was work being carried out on the track and so obviously, failing to actually check the track was clear, is probably the most serious contributing failure. 
[9]
That can to an extent be ameliorated by the fact that other workers seemed to have got the message that a train was coming through and as I have already said, we do not know why Mr Anderson did not know a train was coming through. One factor that may have contributed to that is that he was on a digger. He was employed by a contractor and was a KiwiRail employee. 
[10]
Another failure identified by Ms Petricevic was that there was no briefing with staff on the morning. Another was that it was not actually recorded who was on site that day. One of the matters mentioned in the summary of fact is that there was not an appropriately qualified rail protection officer. This is somebody who is required to be on site and to interact with both the train driver and the Wellington office of KiwiRail. Between the three of them, coordination occurs to enable trains to pass through work sites in safe conditions. 
[11]
The person who was the rail protection officer that day was not qualified to deal with multi-activity on a site as there was here. Apparently the day before there had been an appropriate qualified person but he or she had been called away for some reason. 
[12]
The last important thing I need to read from the summary of fact is that because KiwiRail Holdings is a Crown Organisation under the Crown Organisations (Criminal Liability) Act 2002, it cannot be fined for this incident. The only thing that I can do is to order reparation. 
[13]
Mr Anderson's long-term partner has read her victim impact statement through a victim advisor and Paul's mother has also completed a victim impact statement. So that what those two statements contain makes a bit more sense, I will first refer to medical reports that are before me, including one from Dr James Harman, who is a rehabilitation medicine specialist. He is the person who assessed Mr Anderson for the purposes of his degree of impairment as a result of the accident. 
[14]
The second is a letter from a doctor responsible for Mr Anderson's care at the place where he is now living at ABI Rehabilitation in Porirua. That letter tells me that at the site and at the time he was received at Waikato Hospital four hours later, Mr Anderson had a Glasgow Score of three which is the lowest possible score. Glasgow Score measures the degree of somebody's consciousness or otherwise. 
[15]
Mr Anderson has suffered multiple fractures to his skull and has severe global deficits in cognitive functioning. He suffered a number of haemorrhages in his brain. He had bilateral pneumothoraces or collapsed lungs. He was initially taken to Waikato Hospital and about three weeks later, to Palmerston North and he is now described as being in a minimally conscious state and needs 24 hour care. He is totally dependent on others for his care. 
[16]
He is able to nod and shake his head but it is unclear whether those movements are actually meaningful to the doctor who wrote the report. He is unable to swallow, he has no use of his legs. He can move his arms a little bit but again, it is unclear whether that is purposeful movement or not. The report says that when Mr Anderson is alert, he has more movement, for example when he is being showered. He sleeps a lot of the day. It is clear that he is in pain still, 15 months later, and he has no voluntary control of his bladder or bowel. 
[17]
Because he is unable to swallow, Mr Anderson is unable to eat or drink and he has a permanent tracheostomy to enable him to breathe. Dr Harman assessed Mr Anderson as having a 99 percent whole person impairment. 
[18]
Mr Anderson has a long-term partner and the two of them have two daughters aged 13 and six. They live in Foxton and were clearly a close family, with Mr Anderson being very much involved with the raising of his daughters. His partner, Vashti Faulkner, has told me in her victim impact statement that she has been told on more than one occasion that Paul is not expected to live. He has ongoing chest infections and other medical issues that make his prospects of living more than another 12 months, low. 
[19]
I saw from the doctor's letter that she has suggested to the family that he should not be resuscitated if his heart stops. Back to Ms Faulkner's victim impact statement. She talks about the stress that the accident and Paul's current condition has had on her, her children and their wider family and friends. She has to travel from Foxton to Porirua to see him. She would dearly love to bring him home but they do not own their own home and in those circumstances, it simply is not possible. 
[20]
With her regular visits to see Paul and no doubt the stress of other people who care about him regularly asking her how he is, she is finding life difficult, including how to explain their father's situation to her children. She also tells me how hard it is for her, watching the man she calls an amazing man, father, partner and friend, go through what he has to go through. She also tells me that there has had to be Family Court proceedings and that she is his legal property manager. 
[21]
Mr Anderson's parents downed tools and went to his side after this accident happened. This information is contained in Mrs Anderson's victim impact statement. They live in Kaitaia and spent time with their son, both while he was in hospital and for eight months when he was transferred to Porirua. She and her husband's lives have been disrupted by this, including employment not being available to them, the employment that Mr Anderson Snr had prior to the accident. 
[22]
She describes being affected by what has happened in terms of not being able to sleep properly, waking at 4.00 am. She too like Ms Faulkner talks about how hard it is to see her son, someone who has always been independent, in the condition that he now is. She said: 
“It's hard to put into words how devastated I feel for Paul, that he'd put his faith and trust in KiwiRail to keep him safe while working on the rail. We know this because Jim (that is her husband) had a conversation with Paul in 2013, exactly about this and Paul told him this would never happen. ”
[23]
There has been a restorative justice conference between KiwiRail and Ms Falkner at which an apology was tendered and an offer to pay reparation in the sum of $100,000 was made by KiwiRail but not accepted by Ms Faulkner, not for any reason other than she preferred a Court to make a decision about that. 
[24]
There is a letter in the submissions filed by Mr McIlwraith, counsel for KiwiRail, from Downer, Mr Anderson's employer which tells me that Downer have been assisting both Ms Faulkner and Paul's parents with payments to enable them to attend Mr Anderson's bedside, wherever that may be. Ms Petricevic described Downer's conduct in this matter as exemplary. 
[25]
There has been some view expressed today that perhaps KiwiRail have not done their part in terms of keeping in touch with the family or making offers to assist. Mr McIlwraith has made it clear that the then CEO of KiwiRail, Mr Reidy, did make contact with the family shortly after this accident happened and left the line of communication open. 
[26]
KiwiRail's position is that they were aware that Downer were dealing with the family and that that is what the family preferred. He has apologised if there has been any feeling on the part of the family that KiwiRail were not interested in maintaining communication with the family. If that is the perception then it certainly was not deliberate on the part of KiwiRail. 
[27]
Because I do not have the ability to impose a fine, my task today is to deal with the issue of reparation. I am not going to go through all of the cases that are in counsel's submissions but what I will say is that cases where death have occurred, are the ones where there is the highest amount of reparation offered. The highest order of the Court that I am aware of is the Pike River Coal Mine case where the payment was $110,000 per person who died in that terrible tragedy. 
[28]
What is unusual about this case, and I hope I am not being insensitive when I put it like this, is that premature death seems to be inevitable. In a way I can see that that is almost worse or could be viewed as being worse than dying because of the incredible strain on Ms Faulkner in particular until that day arrives. It is made harder by the fact that she has two young children and has to travel such a long distance to see her partner. 
[29]
So far, Downer have been assisting with travel costs but it is unknown how long that will continue. I view the offer of $100,000 made by KiwiRail as being both appropriate and generous. However, because of the particular circumstances of Ms Faulkner and her children in particular, I have decided to increase it to a payment of $110,000. 
[30]
I turn now to the apportionment of that as between Ms Faulkner and her children and Mr Anderson's parents. As Judge Farish found, additional information is needed in order to achieve an apportionment and it does appear in the Pike River case that there was discussion between family members, if not agreement between family members, as to how that amount should be apportioned. 
[31]
I am of the view that I have enough information in this case to make a decision now, in particular from the victim impact statements. It goes without saying that there are two young children who are vulnerable victims simply because they are children and the emotional load on their mother is clearly huge. 
[32]
That is not to say that there is not an emotional burden on Mr Anderson's parents who have the disadvantage of living even further away. They have two sons and Paul is their youngest son. Doing the best that I can with the information I have in front of me, I make the apportionment 80 percent in favour of Ms Faulkner and her children and 20 percent in favour of Mr Anderson's parents, Karen and Jim Anderson. 
[33]
The Sentencing Act 2002 allows me to award reparation to persons affected by an incident such as this. There simply is no point in making any reparation order in favour of Mr Anderson himself. His medical needs and personal needs are being met by the care he is receiving through ACC. 
[34]
I said at the outset that I was not going to assess what an appropriate fine would be. However, what I will do is say where I think it falls in terms of the three categories of fine set out in the Department of Labour v Hanham & Philp Contractors Ltd (2009) 9 NZELC 93,095; (2008) 6 NZELR 79 (HC)Has partially negative history or cases citing, but has not been reversed or overruled[Yellow] . Low culpability is up to $50,000, medium culpability between $50,000 and $100,000 and high culpability, $100,000 to $175,000. 
[35]
The difference between WorkSafe on the one hand and KiwiRail Holdings Limited on the other hand, is whether it should be in the medium or the high culpability range. Mr McIlwraith contends for medium culpability. Ms Petricevic for WorkSafe, high culpability. 
[36]
Mr McIlwraith made the point that this is not a case where there were no processes in place. There were the statutory required processes in place, including documents that appear to have been approved by NZTA. On behalf of KiwiRail Holdings Limited, it has to be said that whatever processes were in place, they were not enough to alert all of their workers to the fact that a train was coming. 
[37]
On the other hand, it is clear from the submissions and the facts surrounding this case that things could have been better. It is also clear that things are now better. Mr McIlwraith has explained to me that this accident coincided with a new management regime at KiwiRail and generally there has been a greater emphasis on health and safety. 
[38]
The two things that have been changed, which is referred to as the new rule 902, are that when a train is about to come through, a safe place principle has to be observed which means that everybody who is working on the track or near the track, must go to a safe place. There is a lock on, lock off system which means that until everybody is locked on, then the train is not able to be moved through from the buffer. 
[39]
If that system is observed, it is difficult to see how there could ever be a repetition of an accident like this. The company would always have been entitled to credit for the steps that have been taken since were fine being imposed. 
[40]
I would put this in the high-medium culpability range. The reasons for that is that, and it really goes without saying is that there should have been a system that ensured that everybody was off the track, no matter how difficult the terrain, no matter how difficult the communication by radio telephone, before that train was allowed to move from the buffer and that did not happen. 
[41]
Although KiwiRail Holdings is exempt from paying a fine, I think that they should pay the Court costs on one of the informations and I will put that on 5311. Court costs, $130. I will convict and discharge on the other taking all practicable steps charge and the two informations 5319 and 5320 are to be withdrawn. 

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