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Safeguard OSH Solutions - Thomson Reuters

Safeguard OSH Solutions - Thomson Reuters



OSH Tracker

Worksafe New Zealand v Qing Hong Company Ltd (DC, 01/06/16)

OSH Tracker

Defendant:
Qing Hong Company Ltd
Qing Hong Company Ltd was fined $53,250 after a visitor to a construction site gained access via ladder to the roof level from which he fell 2.5m through a net onto the first floor level. He sustained multiple head, chest and lung injuries but could not be located for a victim impact report, hence no reparation order. Scaffolding and nets were only partially installed, workers were untrained in their safe use, there was no safe access to the roof trusses, workers had not been told to stay off the roof, and a visitor could gain access to these unsafe areas (Papakura DC, 1 June 2016). 
Industry:
Construction
Sub-Industry:
General Construction
Risk:
Fall from height
Harm:
Injury
Penalty Amount:
$53250.00
Reparation Amount:
$0.00
Appeared in Safeguard issue 159

Judgment Text

NOTES OF JUDGE G T WINTER ON SENTENCING 
Judge G T Winter
[1]
The defendant, Qing Hong Company Limited, is here for sentence after entering a guilty plea to one charge of contravening s 15 and s 50(1)(a) Health and Safety and Employment Act 1992 in that being an employer failed to take all practicable steps to ensure that no action or inaction of its employee Xiao Jie Lin, while at work harmed any person, namely Huo Ping Zeng. The maximum penalty for this offence is a fine not exceeding $250,000. 
[2]
I will have a copy of the summary of facts attached to the sentencing remarks but in short form Mr Huo Ping Zeng, a visitor to the defendant's construction site, sustained serious injuries after he fell up to 2.5 metres from the roof level. The visitor fell having gained access by way of a ladder, to the first floor and fell from the roof level top plate through a net onto the first floor. 
[3]
The injuries, according to an ACC and not a medical report, were quite serious head injuries, multiple rib fractures, lung and chest injuries. The visitor was not wearing a hard had at the time. 
[4]
The company is represented by its counsel only and neither a director nor shareholder make a personal appearance. While that is the company's option it is consistent perhaps with their attitude to this prosecution. In that regard I note counsel from the bar table advises, in response to a question from me about the viability of the company, that she has been advised that the company is considering going in to liquidation. 
[5]
There may be an irresistible inference that the visitor to the worksite and the shareholders and/or directors of the company at least knew of each other. That irresistible inference might be taken from the fact that this sentencing, particularly in the aspect of assessing the quantum of reparation as the Court is required to do is frustrated. The difficulty is that despite their best efforts the Ministry has been unable to contact the victim and so can only guess at an appropriate award of emotional harm reparation. 
[6]
I ordered a full reparation report to be prepared by the Probation Department. The Probation officer has reported to the Court and said that an attempt was made to contact the victim via telephone on the provided number. A young male answered the phone and said he did not know anyone by that name, that is the victim's name. The Department also posted a letter to the victim's given address, no contact has been received. 
[7]
In these sorts of cases it is always open to the Ministry to pursue not only the company but its directors and shareholders. They chose not to do so and are now out of time for pursuing that course of alternate action. 
[8]
I then turn to the guideline judgement and the three step process, as I must. Step one requires an assessment of reparation. I have read the decisions of Department of Labour and Middlemore Carparking Limited Counties Manukau District Health Board 2011, CRI-2011-092-000863, Worksafe New Zealand v W Goile Roofing Limited and Worksafe New Zealand v Steel Cap Holdings Limited, trading as Sanders Premier. I am aware that I am entitled to infer that an amount of emotional harm reparation payment might be made. However, in the absence of evidence concerning the emotional harm component and in the absence of a victim impact statement and in the absence of a provisional advice to Courts from a co-operative victim who wants to receive an emotional harm reparation payment it would to my mind be an exercise in futility to guess at the quantum of any such award and I decline to do so. There is no order for reparation. 
[9]
Next, I assess the quantum of the fine. The starting point, in accordance with Hanham & Philp is to identify the scale of culpability. The defence, because of the difference in injuries suffered by the victim in this case, pitched the culpability lying in the medium range with fines of between $50,000 and $100,000 being appropriate starting points. The prosecution prefer a high culpability assessment. Again I am hampered by the lack of proper medical reports about the injuries actually suffered by this victim, I am hampered by the lack of co-operation by the victim and the nonchalant attitude of the defendant company. 
[10]
I have considered the relevant factors and the defence and prosecution to a large extent, apart from the issue of realised risk, are in agreement. That is to say the identification of the operative acts or omissions in practicable steps are readily apparent and clear. The scaffolding and safety nets were only partially installed, there was no safe access to the top plate roof area and yet despite this the workers were not told that they should not have been working on the roof trusses. There was no training or guidance given to the safe use of scaffolding or safety nets and there was an ability for a visitor to the site to gain access to this area. It could not be more obvious than that. 
[11]
The assessment of culpability also needs to take into account the simple practical step of ensuring controls in place to manage public access to the site for providing visitors with suitable protective equipment such as a hard hat if they were to gain access to the roof and top plate area, the ability to supervise visitors on site, to ensure all hazards were identified, to talk about hazards and safety controls not only to workers but also visitors and to ensure that safety nets were properly in place and that proper handover certificates were provided. 
[12]
Indeed, ensuring scaffolding was properly in place and safe would have required confirmation. This was, in my view, a major departure from the well publicised industry standards, particularly in New Zealand these days where houses are no longer built but more assembled. It is particularly important on a construction company such as Qing Hong Company Limited to ensure that the rote learning procedures of fitting a home together almost like a jigsaw is accompanied with a rote learning in safety procedures. The hazard was obvious, the means necessary to avoid the hazard were clearly available and effective and at negligible cost. The current state of the knowledge of risks, nature and severity of harm is well developed particularly in an industry that now assembles homes rather than builds them. 
[13]
The pivot point, as I have earlier remarked, between the defence and prosecution remains. That is an assessment of the risk of harm as well as the injuries suffered by the victim. The index cases of the prosecution, including the Department of Labour v Easy Form Products Limited (2013) 11 NZELR 1Has Cases Citing which are not known to be negative[Green]  and Worksafe New Zealand v Livefirm Construction Limited reported at Worksafe New Zealand v Livefirm Construction Limited District Court North Shore with neutral citations CRI-2014-044-000645 a decision dated 20 May 2014. 
[14]
The cases bore some comparison at least in terms of the agreed and obvious descriptions of the risks of harm; the obviousness of the hazard; and the major departures from publicised industry standards. However in both cases I find the injuries sustained by the victim were much greater. Certainly in this case, hampered as I am by the absence of medical reports and a co-operative victim, I cannot guess at the severity of the injuries to this victim. I can infer that a fall from that height might occasion the ACC reported injuries discovered by the investigator of serious head injuries, rib fractures, lung and chest injuries. 
[15]
While I am drawn to the prosecution's request for a starting point at the cusp of the medium and high bands of culpability I cannot be satisfied about that in terms of the realised harm. Accordingly, I am satisfied that the prosecutor's assessment that the defendant's culpability warrants a starting point in the vicinity of $100,000 cannot be sustained. I note the mitigating factors, and I am reluctant to note them because of the defendant company's nonchalance about the prosecution, must nonetheless be reflected in mitigating features available on the total fine imposed. 
[16]
I accept the investigator's assurances that the defendant co-operated with the investigation, had a good safety record prior to this case and would have been also entitled to a discount if the victim had co-operated and the reparation order had been made by me, which it is not. 
[17]
The last point I note is an overall assessment which might include the ability of the company to service the size of fine that will inevitably accompany the sentencing. I note counsel's instructions are extremely limited but include the fact that the company is considering liquidation. In particular I note that the company is in default for filing its last annual return. The Court has no evidential basis upon which to assess the ability of the company to service any fine and so I must lay that matter to one side. 
[18]
I am satisfied that a starting point of $85,000 would be a consistent penalty and meet not only the purposes and principles of the Sentencing Act but also the relevant sections of the Health and Safety in Employment Act 1992 and the line of authorities concerning sentences for accidents arising from workplace hazards. 
[19]
There has to be a reduction in recognition of co-operation and good safety record. That may be $14,000 reducing the fine to $71,000. There has to be a deduction at the maximum because the plea was entered early. I am satisfied that a further $17,750 might be deducted. That means that the end fine is a sum of $53,250 which I order to be paid within seven days, in full. 

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