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Safeguard OSH Solutions - Thomson Reuters

Safeguard OSH Solutions - Thomson Reuters



OSH Tracker

Worksafe New Zealand v AFFCO New Zealand Ltd (DC, 20/04/16)

OSH Tracker

Defendant:
AFFCO New Zealand Ltd
Blame the worker defence fails 
A defence based on blaming the injured worker for his own misfortune failed to persuade the court, AFFCO New Zealand Ltd instead being found to have failed to check its procedures were being followed. The company was fined $30,000 with reparations of $25,000 (Tauranga DC, 20 April 2016). 
In the August 2014 incident at the Rangiuru plant, a night cleaner’s head was impaled by a prong of a moving suspended spreader hook, which entered his head above and behind his left ear, with the hook protruding just to the left of his left eye. He was carried, suspended, for a short distance before his colleagues hit the stop button and supported his weight while the hook was disassembled and he could be taken away for treatment. 
The cleaner, J, survived the incident without permanent physical injury but suffered emotional harm from the experience. 
The suspended hook was relatively blunt. However immediately down-chain from the drip tray he was standing on was a fixed rectangular box frame which had previously held a scanner device. The court found that J’s head had come into crush contact with the scanner frame, and that this caused such a degree of resistance while his head was forced through the gap between the hook and the frame that the hook’s prong had penetrated his head. 
The defence argued that J admitted he should not have been standing on the drip tray; that having chains move during cleaning was reasonable industry practice at the time; and that the scanner frame had never been identified as a crush hazard by anyone, including external safety auditors and the plant’s own H&S representatives. 
The court found the plant’s manual – given to all staff during induction – included the requirement to lock out machinery during repairs, maintenance and cleaning. The plant manager acknowledged that cleaning with the chain moving was inconsistent with the plant’s documented procedure. He also conceded that despite the training in safe procedures given to all staff, there were no checks – scheduled or random – to ensure safe practice was being observed. 
The court found the machinery should have been locked out, as per company procedure, and the company’s training and monitoring that health and safety protocols were being observed was inadequate. 
Industry:
Manufacturing
Sub-Industry:
Food, Beverage and Tobacco
Risk:
Machinery (trapped, crushed, cuts)
Harm:
Injury
Penalty Amount:
$55000.00
Reparation Amount:
$30000.00
Appeared in Safeguard issue 157

Judgment Text

NOTES OF JUDGE P S ROLLO ON SENTENCING 
Judge P S Rollo
[1]
On 19 August 2014, Jason Matahiki suffered a serious work place accident in the course of his employment as a night cleaner at AFFCO New Zealand Limited at its Rangiuru plant, near Te Puke. No doubt Mr Matahiki, his friends and family, expected him to return home from his work place safe and sound that day. Regrettably, he spent the night in the Tauranga Hospital receiving treatment after the left side of his head was penetrated by one of the prongs of a suspended spreader hook — part of the mutton chain — which entered his head above and behind his left ear, before the point of the hook exited immediately to the left of his left ear. 
[2]
Mr Matahiki was carried, suspended on the hook, for a very short distance before his screams alerted a workmate to hit the emergency stop button for the chain. His workmates supported the weight of his body until supports were put under his feet. A lengthy process followed which required dismantling part of the mutton chain to enable the spreader hook to be detached, so it could then be removed from Mr Matahiki's head. 
[3]
Mr Matahiki was discharged from the Tauranga Hospital some 20 hours after the accident and had three months initially off work, recuperating from his physical and psychological injuries. He then resumed part-time work with AFFCO, although not on the cleaning gang, nor involved with the mutton chain at that time. 
[4]
In July 2015, Mr Matahiki was laid off (as is usual with seasonal work) and he has been on Accident Compensation, on the information I initially had, since that time. However, I am advised today by Mr Hammond that Mr Matahiki has resumed work on 1 March 2016, four hours a day, three days a week, that increased on 24 March to four hours per day, five days a week, and from 15 April, six hours a day, five days a week. So that is wonderful progress towards fully restoring his working life. 
[5]
Having said that, Mr Matahiki has suffered significant physical and psychological injuries as a result of what happened and that is supported not only in the victim impact statement, but also in the medical report before me from his doctor. 
[6]
Prior to this workplace accident, Mr Matahiki tells me in his victim impact statement, he was a confident, easy-going and reasonably active man, enjoying family and social life. Since the accident he reports that he has lost his confidence, he feels reserved and is reluctant to leave his home. He suffers nightmares and interrupted sleep which has impacted on his health, including his mental health. 
[7]
The information before me records that Mr Matahiki has suffered increasing mental health issues as a result of the injury he sustained, including suicidal tendencies and depression at times. He has been hospitalised as a result with mental health issues on two occasions and he has ongoing health issues that he is still working on. He is supported by his family and medical practitioners in that regard. 
[8]
As a result of the workplace accident, AFFCO was charged that, being an employer, it failed to take all practical steps to ensure its employee, Mr Matahiki, was not exposed to the hazard of the moving four-leg chain while at work. 
[9]
The charge was defended but, after a three-day hearing, which included a site visit to the AFFCO mutton chain where the accident occurred, I delivered a reserved judgment finding the charge to be proven. Sentencing is to proceed today. 
[10]
The disposition of this case falls under the provisions of the Health and Safety in Employment Act 1992, notwithstanding the recent introduction (post Mr Matahiki's accident) of a new Act, being the Health and Safety at Work Act 2015. 
[11]
The relevant sentencing principles under the 1992 Act are clearly set out in that Act and under the Sentencing Act 2002. The leading case on the approach to sentencing in such cases is Department of Labour v Hanham & Philp Contractors Limited (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] , which reviewed the principles earlier established in the seminal case of Department of Labour v de Spa & Co Limited [1994] ERNZ 339 (HC). That latter case established a sentencing process involving three main steps: 
(i)
Assessing the amount of reparation; 
(ii)
Fixing the amount of the fine; and 
(iii)
Making an overall assessment of the proportionality and appropriateness of the total imposition of reparation and the fine. 
[12]
De Spa emphasised the discrete statutory purposes of reparation and fines. Fixing the amount of the fine requires the methodology established by the Court of Appeal in R v Taueki [2005] 3 NZLR 372 (CA)Has partially negative history or cases citing, but has not been reversed or overruled[Yellow] , which requires a Judge to fix a starting point, then to adjust it for aggravating and/or mitigating factors, in order to come to an end sentence. 
[13]
The assessment of the starting point for the fine involves an assessment of the culpability of the defendant company. De Spa set three bands of culpability - low culpability, warranting a fine up to $50,000; medium culpability, warranting a fine between $50,000 and $100,000; and high culpability, being cases where the fine should be between $100,000 and $175,000, in each case as the starting point. 
[14]
The Crown submits that this is a case which falls at the high end of the medium culpability band, and that the appropriate starting point for a fine would be $90,000. The Crown submits that the previous history of the company would warrant an uplift of $15,000 from the starting point of such a fine, and separately a reparation payment of between $30,000 and $40,000 
[15]
The Defence position is quite the contrary. Mr Hammond submits that this is a low culpability case where a fine between $10,000 and $20,000 only is warranted, with reparation of $5000 to the complainant. 
[16]
Dealing first with the reparation issue, the Crown submissions observed reparation terms (inaudible 14:47:57) the specific facts of emotional harm suffered by a particular victim, with previous cases dealing with reparation (inaudible 14:48:06) often only of limited assistance to the Court. Emotional harm is difficult to quantify financially. In Big Tuff Pallets Ltd v Department of Labour HC Auckland CRI-2008-404-322, 5 February 2009, the learned Judge Harrison J observed: 
“Fixing an award for emotional harm is an intuitive exercise; its quantification defies finite calculation. The judicial objective is to strike a figure which is just in all of the circumstances, in which in this context compensates for actual harm arising from the offence in the form of anguish, distress and mental sufferings. The nature of the injury is or may be relevant to the extent that it causes physical and mental suffering incapacity, whether short-term or long-term. ”
[17]
In his written submissions Mr Hollister-Jones, the Crown Solicitor, observes that emotional harm reparation orders for cases involving crush injuries have attracted reparation orders between $10,000 and $45,000. In his submissions, particularly at paragraph 5.3, Mr Hollister-Jones refers to the following specific cases: 
(a)
Worksafe New Zealand v Juken New Zealand Limited DC Masterton CRI-2014-035-534, 30 September 2014 which involved un-jamming a moving conveyor where the operator's finger caught between a chain and socket causing partial amputation and crushing the right index finger, which then had to be amputated. Reparation of $12,000 was ordered by the Court. 
(b)
Worksafe New Zealand v Riverlands Eltham Limited DC New Plymouth CRI-2014-021-349, 17 October 2014 which involved lacerations and crushing of carpel tunnel of the victim requiring open surgery to be released from the machine with five days then in hospital and ongoing effects including pain, acute carpel tunnel syndrome and parenthesis, extreme pain without pain relief happened during the course of the injury. Reparation of $15,000 was ordered in that case. 
(c)
Worksafe New Zealand v Reinforced Steel and Mesh Limited DC Napier CRI-2014-041-997, 25 November 2014. There was as severe segmental crush injury to the right forearm and wrist of the victim who was no longer able to work and suffered chronic pain causing him significant emotional harm. Reparation of $20,000 was imposed in that case. 
(d)
Worksafe New Zealand v Meycov Food Limited [2015] NZHC 1180Has Litigation History which is not known to be negative[Blue]  where the female victim's arm was trapped in a biscuit-making machine for 40 minutes causing significant burn injuries to her right arm which required four operations and a prognosis that her arm would never function normally again. The District Court Judge, at first instance, described it as a fairly bad case with the injury being extremely bad with horrifying consequences for the victim. An order of $45,000 reparation was made in that case, which was unchallenged when the case when on appeal. 
[18]
Mr Hollister-Jones submits in his written submission that the Worksafe New Zealand v Meycov Foods Limited case is most similar to Mr Matahiki's in that Mr Matahiki suffers psychologically and emotionally, justifying reparation in the region of $30,000 to $40,000. 
[19]
The Defence position is that the cases referred to by the Crown can be distinguished on the basis that those were permanent injuries whereas the physical injuries to Mr Matahiki, whilst serious at the time, have significantly healed, albeit that he presently has psychological effects from the accident. 
[20]
I find that the emotional and psychological effects of this workplace accident for Mr Matahiki, and no doubt for his family, have been profound and from the medical report and the victim impact statement, albeit that the latter was written some months ago, that situation is unlikely to dramatically improve in the foreseeable future. 
[21]
I take into account the financial losses that have occurred for Mr Matahiki some $11,380.36, being the difference between ACC payments and wages previously earned, between 6 December 2014 and 2 January 2016. I also take into account the extent of injury and harm to Mr Matahiki, particularly the trauma involved in the accident, the on-going emotional and psychological trauma, the adverse effects on his physical health, which I am satisfied have their origins in substantial part in the workplace accident. I then assess a fair reparation sum at $25,000 and I award that sum accordingly. 
[22]
Dealing now with the issue of the fine. The Crown's submission, as I have note, is that this is at the high end of the medium band of culpability where a starting point for a fine of between $80,000 and $90,000 is warranted. The Crown also seeks an uplift from the starting point of $15,000 for the defendant's previous history of offending. 
[23]
In support of that position Mr Hollister-Jones has referred me to the leading case of Department of Labour v Hanham & Philp Contractors Limited, which I have referred to previously, which requires an assessment of culpability by considering the degree of blame to be attributed to the defendant for the offending. There are a number of factors which can be identified as operative acts or omissions. The Crown says that the defendant company in this case failed to implement the lockout procedures that it had prescribed in the workplace since mid-2014. It failed to ensure the cleaning staff on the mutton chain was familiar with the lockout procedure and he refers to my findings in my reserved decision that the night cleaning supervisor was not familiar with the safety procedure for switching off and isolating all electrical equipment using the lockout procedures. 
[24]
Mr Hollister-Jones next refers to the failure to ensure on-going monitoring of the company's safety procedures, again referring to my findings to that effect, in not systemically managing the night cleaning staff to ensure that the safety standards were adequately being met or complied with. 
[25]
Thirdly, Mr Hollister-Jones refers to a matter of omission from the defendant company's documentation in that the lockout requirement was not on the Departmental hazard identification. He also refers to the failure of the defendant to identify the redundant scanner frame as a potential crush injury hazard, as we have previously discussed during oral submissions. 
[26]
Further, the factors to be taken into account in assessing culpability require a review of the degree of departure from industry standards and the current state of knowledge of the means available to avoid the hazard or mitigate the risk of injury. Mr Hollister-Jones submits that the industry standards are clear on the requirements during lockout and he additionally refers to the Australian and New Zealand Standard 4024.201:2014 and also to the Health and Safety in Employment Regulations 1995 which mandate that in any place of work under the control of an employer where there is cleaning of machinery which could cause harm to the employee, the machinery must not be cleaned (a) until every part of the machinery has been secured against movement, and (b) every controlled device has been secured in the inoperable position by the use of blocks or lockout procedures. 
[27]
Mr Hollister-Jones also refers to the Worksafe New Zealand Best Practise Guidelines for Safety (May 2014), which again emphasise that hazard machines be stopped before any cleaning or maintenance is done, and to a further document Safe Use of Machinery Introduction, a pamphlet from the Ministry of Business, Innovation and Employment, from November 2012, which was produced at the end of the case as an exhibit in the proceeding, which warns against accidental start-up mechanisms during cleaning when persons are highly vulnerable. 
[28]
The next factor Mr Hollister-Jones refers to is a culpability factor for this work place accident. That was dealt with in the discussion in my reserved judgment of what happened and how. Mr Matahiki was clearly standing on the drip tray in a confined space. His head has come into contact with the spreader hook progressing forward on the chain. There has been some degree of scanner frame crush resistance to Mr Matahiki's head causing the perforation to the side of his head by the hook. Those matters were referred to in my judgment. 
[29]
I emphasise what Mr Hollister-Jones has paraphrased from my judgment, that the mutton chain spreader hooks, moving interminably forward, are very unforgiving. They are obviously standard items in a meat-processing plant. The consequences for an employee of coming into contact with such a spreader hook where a crush injury can result is always potentially highly dangerous. 
[30]
The next matter Mr Hollister-Jones refers is the obviousness of the hazard. I have again discussed this in argument with Mr Hammond, that in my view any person or object within close proximity of the moving hooks, particularly in the vicinity of the meat chain where people are working in or about the chain or chains, obviously represents a potential crush hazard. This was not identified in this particular case. 
[31]
The final factor is the cost of remedial steps necessary to avoid the hazard. In this instance the company immediately put into place a lockout procedure which required the mutton chain to be stationary during cleaning with a section being cleaned, staff stepping back away from the chain before it was move d for the next section to be cleaned, a process adopted in many of the freezing work companies around the country according to the evidence of Mr Nidd, an expert in such matters. 
[32]
So Mr Hollister-Jones' submission is that, weighing the above culpability factors together with the fact that this was a crush injury to Mr Matahiki's head, the most vulnerable area in the human body, this case falls at the upper end of the medium band of culpability where a starting point for a fine of $80,000 to $90,000 is appropriate. 
[33]
In support of that starting point he refers me to the Hanham & Philp re Cookie Time appeal where a victim worker's right arm was caught in an unguarded tracking point. The defendant there had identified the risk but did not provide a guard. The victim suffered a fracture to the right arm requiring surgery and three months off work. 
[34]
I do note the point which is alluded to in Mr Hammond's submissions, that that was an identification of risk with the failure to take steps, whereas the accident in this instance was not perceived as a danger. So it is in a slightly lesser category. In that case, however, the High Court adopted a starting point of $100,000. 
[35]
In the Worksafe New Zealand v Reinforcing Steel and Mesh Limited case, which involved a mesh machine, the interim employee was using a metal rod to reach into the machine to connect cross-wires to magnets when his arm was suddenly wrenched by a sudden movement of the machine which caused a crush injury. This was an inherently dangerous operation and there was no documented hazard identification system or standard operating procedure for the machine. In that case the Court took the view that it was unrealistic to expect an employee to do his job without putting his hands near the moving parts. The starting point of $90,000 was adopted on the facts of that case. 
[36]
In Worksafe New Zealand v Meycov Foods Limited case, serious harm to the employee occurred when her arm was trapped in the biscuit-making machine. Mr Hollister-Jones submits that Affco's culpability in this case is similar except this case involved a serious head injury. The starting point in the Worksafe New Zealand v Meycov Foods Limited case was $70,000, which the High Court considered was within the available range for such an omission. 
[37]
So the Crown submission is that $80,000 to $90,000 fine is appropriate in this case, with an uplift for past offending of $15,000. Mr Hollister-Jones has set out the history of previous safety breaches by AFFCO and penalties that were imposed in those cases in his written submissions. They are spread over a number of years but I note that all are at a lower level. I take that into account in my assessment of the defendant's overall culpability in this case. 
[38]
The Crown accepts that the company is entitled to discounts for mitigating factors, the assistance to Mr Matahiki, its offer of reparation, the real actions taken immediately to address the hazard, the company's safety record, and its co-operation with the investigation. The Crown submits that a 20 percent discount would be appropriate here. 
[39]
Mr Hammond has filed and spoken to his written submissions. I now turn to address what he has said on behalf of the defendant company. 
[40]
As I have said, Mr Hammond puts the starting point of the fine at $10,000 to $12,000, with no uplift for the defendant's prior history. Mr Hammond submits that the appropriate starting point is in the range of $10,000 to $20,000 and that no uplift is warranted due to the defendant's history. He further submits that reduction is 25 percent for mitigating factors is appropriate. 
[41]
Turning now to Mr Hammond's submissions on the assessment the quantum of fine, he identifies the culpability factors in the Department of Labour v Hanhm & Philp Limited case, and says that this accident occurred through the combination of two factors - the fact that Mr Matahiki was indisputably on the drip tray when his head came into contact with the spreader hook, and the second element, the location of the redundant scanner frame in that area, which was not perceived in the work site as a potential crush hazard. The worksite was the subject of careful hazard identification and annual professional, external health and safety auditing. Neither the company representatives nor the external auditors, or the staff could reasonably have envisaged the particular circumstances of this accident, Mr Hammond submits and those matters go directly to the assessment of culpability. 
[42]
He then refers me to the actions of Mr Matahiki, as relevant in assessing the an employee's carelessness as a mitigating factor. He refers to the decision of Duffy J in Department of Labour v Eziform Roofing Products Limited which analysed the relevance of the victim's conduct, referring to s 9(2)(c) Sentencing Act 2002, as a mitigating factor that can be taken into account in sentencing an offender. At paragraph [52] of her decision, Her Honour states: 
“The nature of a victim's conduct is relevant when it comes to considering such conduct as a mitigating factor in the offending, or the weight to be attached to it. Not all such conduct should be treated the same. ”
[43]
Mr Hammond emphasises that the defendant does not seek to rely on Mr Matahiki's carelessness, per se, as a mitigating factor, but does contend that the context of the incident has a mitigating effect. Mr Hammond seeks to satisfy me (reiterating what is in his written submissions) that because Mr Matahiki resisted the assertion during cross-examination that he was on the drip tray, he must have been aware that that was prohibited. 
[44]
In dealing with that matter once again, I am satisfied from the evidence I have heard that Mr Matahiki, when giving his evidence, recognised in hindsight that it was hazardous for him be on the drip tray, but at that time there was no active prescription against him being there. 
[45]
That is supported by the fact there is no company documentation or hazard identification dictating that employees must not be on the drip tray, and neither the team leader nor the health and safety representative of the cleaning gang were aware of any such prohibition. So whilst Mr Matahiki was obviously was on the drip tray, and it was a contributing factor to the accident, in the absence of a prohibition, I do not see that as a mitigating factor in context in this case. 
[46]
Secondly, Mr Hammond refers to the fact that the location of the redundant scanner frame could not be perceived as a potential crush hazard, as evidenced by the steps which were taken to try and identify and address hazards not only by management and staff, but also by outside experts. 
[47]
Turning now to the departure from industry standards, Mr Hammond refers to me evidence of Michael Nidd, an expert in the design, construction and operation of meat plants nationally and internationally. He gave evidence before me to the effect that moving chains during cleaning was a then practice adopted by a number of plants in the meat industry in New Zealand, not the majority but a significant number nevertheless. 
[48]
I make the point in my reserved judgment that the mere fact that the company immediately changed from having the chain moving during cleaning or detailing to a stop/start methodology adopted in other plants around the country is not of itself proof that the company's previously adopted practice was wrong. 
[49]
But it was inconsistent with the clear written protocols of the company which required the chain to be locked out during the cleaning of machinery. 
[50]
Mr Hammond's point, however, is that there was no distinct or serious departure from industry standards, which I accept. But I emphasise again, it was a departure from the AFFCO protocols at the Rangiuru plant. 
[51]
As to the nature and seriousness of the risk of harm occurring, Mr Hammond emphasises that this was a not a predictable accident, but a truly freak accident in its nature. He says it was not capable of being predicted, despite strong and robust health and safety systems in place in the company's workplace. He says this was not an accident waiting to happen, nor was it probable or likely. 
[52]
He says that the company does not accept that it was an obvious hazard, able to be recognised. I have commented on that already in argument, that any possible obstruction in such circumstances of this case, with an unrelenting chain moving amongst employees doing their work, must be recognised as having the potential to be a crush injury hazard and the redundant scanner frame should have been recognised as such in this case. 
[53]
Mr Hammond next refers to the cases referred to by the Crown, noting distinguishing factors - that in some of those cases there was wilful neglect, or identification of a hazard without appropriate or timely remedial steps being taken, or no hazard identification system operating within the workplace giving rise to serious permanent injury, unlike in the case of Mr Matahiki. 
[54]
Finally, Mr Hammond's submission is that the assessment of this case comes back to the combination of elements which were so unusual and unlikely that it was an incredible piece of ill-fortune that the redundant scanner frame was in the one position where it caused a risk, a risk that was not foreseen. As a consequence, Mr Hammond submits this is a low culpability case and that a fine between $10,000 and $20,000 starting point is appropriate. 
[55]
Mr Hammond next emphasises, by way of mitigation, the significant steps taken by the company to have safety protocols operating within the workplace. I addressed at some length those steps taken by the company in my reserved judgment, and as a matter of fairness I emphasised them again. 
[56]
At paragraph [29], and following, I stated: 
“[29]
I understood the great majority of the staff at AFFCO to be seasonal workers. These workers undergo an annual induction on the commencement or return to work. That involved tuition on the company policies and procedures including an emphasis on health and safety in employment issues, requirements, practises and goals. Each of the employees receive a copy of the company manual which again details the company's policies and practises, including health and safety in employment obligations, expectations and requirements. 
[30]
In addition, as the Act requires, there are established health and safety processes, monthly health and safety meetings, attended by the plant manager, Kevin Casey, and other senior staff, as well as weekly tool-box health and safety meetings conducted by the staff health and safety representatives. In the case of the night-cleaning gang, these were convened, as I understood it, by the night cleaners' health and safety representative. 
[31]
In addition specific training on the areas of health and safety practice were given periodically to specific AFFCO staff, focussed on the requirements of their specific work duties. With the night-cleaning gang, these focussed on the use and storage of cleaning chemicals and substances, but also, relevant to these proceedings, lockout procedures to disable machinery in a fail-safe way during repairs and maintenance, and during the cleaning processes. ”
[57]
I also commented at paragraph [33], and following: 
“[33]
In addition to the above-mentioned health and safety procedures and staff reviews, AFFCO also has external health and safety audits and reviews conducted by appropriate experts. These are usually on an annual basis, enabling an independent eye to be run over the company's plant, processes and practices, in order to identify actual or potential health and safety hazards within the work place, and remedial steps that might be undertaken to prevent or mitigate such hazards. 
[34]
From the evidence I heard and documentation put before me, not only by Worksafe witnesses, but also by Mr Casey, the plant manager, I am satisfied that the company took its health and safety in employment obligations and responsibilities very seriously and strived to avoid harm in the workplace to any persons present there, including its employees. ”
[58]
In acknowledging those matters, of course, I also found that the company fell shy of the responsibilities under the Act in the circumstances of this particularly case, and I emphasise again, as I did prior to the sentencing process, that the principal failure of the company was the failure to monitor compliance with its own safety requirements. Had that happened in this instance, we would not be here today. 
[59]
Taking all of these factors into account, I assess the culpability of the company, looking at it in the round, as at the lower end of the middle band, or the higher end of the low band. I am satisfied that an appropriate starting point for a fine in this case is the sum of $40,000. That is slightly less than half the starting point for the fine in the Hanham & Philp case, where there was wilful and deliberate failure to by the company to prevent a known hazard. That is not the case in this instance. It is to be distinguished from those facts and, therefore, justifies a lower assessment of culpability. 
[60]
As to any uplift for the previous record of health and safety in employment offences by AFFCO, I am not satisfied that this necessary in the circumstances of this case. They are a different category. Those charges were dealt with at their respective times, in some cases some time ago, on their particular facts and I do not think they justify an uplift in this case. 
[61]
I give a discount of $10,000 for mitigating factors. That is 25 percent which takes into account the positive steps the company has taken after the event to immediately remedy the problem at the workplace, its acceptance of immediate responsibility, its co-operation with Worksafe with the investigation into the circumstances of the offending, the positive support for Mr Matahiki at that time and during the intervening period of time, including appropriate assistance to enable him to return to his place of work and companionship with others that no doubt has and will continue to assist with his sense of, and actual, recovery. 

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