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Safeguard OSH Solutions - Thomson Reuters

Safeguard OSH Solutions - Thomson Reuters



OSH Tracker

Worksafe New Zealand v CMP Canterbury Ltd (DC, 21/06/16)

OSH Tracker

Defendant:
CMP Canterbury Ltd
CMP Canterbury Ltd was fined $39,000 with reparation of $68,250 after a slaughterman was crushed by the door of a stunbox at its Ashburton plant. He suffered multiple fractures and head injuries which led to a stroke. He now requires full-time care. The door could have been made safe by installation of a device to prevent it closing while someone was beneath it, and if hand pressure on the control button was released (Ashburton DC, 21 June 2016). 
Industry:
Manufacturing
Sub-Industry:
Food, Beverage and Tobacco
Risk:
Machinery (trapped, crushed, cuts)
Harm:
Injury
Penalty Amount:
$107000.00
Reparation Amount:
$68000.00
Appeared in Safeguard issue 158

Judgment Text

NOTES OF JUDGE J E MAZE ON SENTENCING 
Judge J E Maze
[1]
CMP Canterbury Limited faces one charge of failing to take all practicable steps to ensure the safety of its employee Mr Hisham Almansi. Mr Almansi was 21 years of age. He was working as a Halal butcher/slaughterman. He came to New Zealand from Jordan with his family. Within the Jordanian culture, as the eldest son, he has a number of responsibilities, and for want of a better word, obligations in relation to the overall provision for his family. So the family came as a wider unit to New Zealand so as to allow Mr Almansi to work for a year or so, to accumulate some resources to enable him to travel back overseas to begin medical studies. He was plainly a young man with considerable ability and ambition and there is no suggestion in any of the material before me that that ambition was misplaced. He was here under a work visa and I understand that the accident occurred a year ago, 3 June 2015 but he remains in New Zealand under an extension for up to the next six months. 
[2]
The usual procedure for slaughtering a cattle beast involves the animal entering a race and from there it is guided into the stun box. The head of the animal is clamped. The stun box operator stuns the beast with an electrical current and the animal is then passed out onto a slaughtering table. Under Halal requirements, 10 seconds is available for the process which is strictly regulated under the Quran. The victim was engaged that day in the process of slaughtering the animals, by slitting their throats. At the time of the accident, one cattle beast appears to have fallen awkwardly on to the table with its head still under the stun box door. One slaughterman tried to deal with the animal, climbing onto the table but he slipped. Mr Almansi then tried to release the animal but was caught when in the effort all of the attending men were making to try to help each other, it seems inadvertently the switch to close the stun box door was activated. The door closed, crushing Mr Almansi. He sustained two broken femurs and fractures to a lower back but significantly he suffered major head injuries. He suffered a stroke brought on directly by the incident and the injuries he sustained. 
[3]
There was no guard in place to prevent the stun box operator leaning over and inadvertently activating that switch. Crushing from the box door was an obvious risk. The prosecution says that there was an emergency stop control but it was not used and there seems to have been some confusion about whether the operator was actually trained in using it. 
[4]
There were other faults alleged by WorkSafe and plainly the slaughterman climbing onto the table should not have occurred. The correct captive bolt gun was not in fact used. There seems to be some confusion in the summary as to who should have been using the captive bolt gun and where it should have been obtained from. 
[5]
Since this, a second emergency stop has been fitted to the slaughter table. The switch in the stun box operator's equipment can no longer be nudged into action. There are a number of modifications to the way the stun box functions. Mirrors have been set up to avoid blind spots for the stun box operator and obviously there has been careful documentation and training and communication of required procedures. 
[6]
The defendant company has no previous convictions whatsoever. 
[7]
The victim impact statement is up to date. It is a complex document. There has been some progress but life changed irrevocably, it would seem, for Mr Almansi in many respects. The injuries now 12 months from the date of the accident appear to have rendered him incapable of continuing to work. They have ended his plans and hopes and one of the consequential difficulties is that given his originally limited links to New Zealand he will be forced to return ultimately to a country where the provision of rehabilitative assistance and resources is likely to be considerably less. Indeed, it may be absent. I am referring to what the family supplied in the restorative justice conference in saying that. I have no other access to information. 
[8]
The prosecution particularly points to the emotional harm for the victim including depression and post-traumatic stress disorder arising from the more significant of the two types of injuries, the head injury. Post-traumatic stress disorder involves inevitably experiencing flashbacks revisiting the original trauma and consequential and deeply felt anxiety. There is another level of anxiety for this young man in that his future is now uncertain in the extreme, both in relation to his planned study and his ability to remain in New Zealand or travel. It also relates to his ability to receive assistance. So while he sustained significant physical injury by way of crushing, the brain injury is indeed the most significant and it has created a number of consequential emotional difficulties which will not heal so readily as the physical injuries. 
[9]
The restorative justice report is a moving report. I do not intend to go into it in great detail. It is lengthy but it is clear from the information supplied that there is almost no aspect of this young man's life which remains the same as it was that morning when he went to work. His religious, emotional and physical life, his aspirations are all adversely affected. 
[10]
I have been considerably helped by the restorative justice process and I note in particular the care with which the defendant company approached restorative justice and the payments which the company has made both in practical terms at the time of the accident and immediately thereafter and the significant payment made at restorative justice. 
[11]
It is well established that the proper approach is a three-step approach as set out in Department of Labour v Hanham & Philp Contractors Ltd [2009] 9 NZELC 93,095; [2008] 6 NZELR 79 (HC) involving the establishment of the reparation figure, the establishment of the fine and then adjustment for proportionality and appropriateness. 
[12]
The reparation figure can cover loss of or damage to property, emotional harm reparation and loss or damage consequential thereon and the two figures have been agreed. One is the damage reparation of $250 and the other is the top-up to ACC to today's date of $12,818.47. 
[13]
The contest relates to the emotional harm figure. The defendant company seeks a credit or allowance for the payment it made at restorative justice, $12,000 and accepts that the other payments that it has made should be treated as part of the discount which applying easy form the parties have agreed to fixed at 30 percent in relation to the fine. 
[14]
The prosecution emphasises the very serious injuries, particularly the traumatic brain injuries, caused to the victim. He has profound problems now with memory concentration, fatigue and of course the post-traumatic stress disorder and there is some suggestion of sight problems although they appear to be limited. Those are in addition to the serious physical injuries which require time for recuperation, broken bones, thoracic and spine fractures and there was laceration to the liver. The prosecution accept the Court must quantify the amount but seeks a figure in the region of $60,000 to $70,000 to reflect the lifelong life-changing impact. The prosecution cites a number of cases but particularly refers to Worksafe New Zealand v Hao & Liu Union Ltd [2015] NZDC 7934, a decision in which $80,000 was fixed for more serious and ongoing consequences. Allowing for that, the prosecution says this is more serious than a case involving crushing injuries generally and so $60,000 to $70,000 is sought. The defence says the figure should be in the region of $40,000 to $50,000 and says that that is really pitched on the basis of other similar cases. 
[15]
I do not need to address the consequential loss submissions. The only matter which requires determination at this point is the starting point for the reparation and the calculation therefrom for emotional harm. I note the range and level of injuries to a young man of just 21, a young man with considerable ability and reasonable prospects for furthering his education. I note his actual vulnerability, given his limited ability to remain where rehabilitative resources and techniques may be available which are not available at home and the anxiety which arises as a result of that and I consider that the level of compensation for emotional harm should be at the higher end, short of the highest end (for a fatality), and on that basis I would adopt a starting point of $60,000. 
[16]
I can accept that there should be an allowance for the $12,000 paid in advance for what seemed to me sound and sensible reasons advanced by Mr Galloway. The reasoning in a reparation decision on sentencing should not become a disincentive to an employer working to assist employees who have been harmed in a workplace accident in a prompt and timely way. So I would deduct the $12,000 paid which leaves me with an end result of $48,000. 
[17]
Both parties are agreed that the consequential loss figure up to today's date is $12,818 and the defendant company has offered an allowance of $7000 thereabouts to address a further six months of top-up and payments. I cannot go beyond the six months because I can see no principled way in which I can do so. I simply do not know where this young man will be in six months' time and I have to have some logical and principled way of calculating the figure. So my calculations are $60,000 minus $12,000 for the amount paid, plus $12,818, plus $7000, being $67,800. With the further $250, the reparation figure becomes then a rounded figure of $68,000. 
[18]
As to the fine, WorkSafe correctly points to the need to identify the operative omissions in issue. I am obliged to assess the nature and seriousness of the risk as well as the actual harm, the degree of departure from industry standards, the obviousness that the hazard and the availability cost and effectiveness of the means to avoid the hazard. The current state of knowledge on both of the last two is also an issue. 
[19]
The prosecution submits in this case that the defendant company failed to identify the appropriate safety control measures for the significant hazards presented by the door, failed to install a safety pin locking device or restraint system to prevent the dropping of the door. There should have been a provision in the pneumatic control valve, the machine safety control system, to stop the door immediately and reverse it. The manual control should have been a hold to run type so that it stopped immediately if hand pressure was released and the switch for manual control should have been properly shrouded or have been a recessed push button control to prevent inadvertent activation and I do not believe that the defendant company takes issue with any of those factors. It is clear by law the victim's conduct and the conduct of the other employees involved cannot minimise the defendant's culpability and by framing the particular hazards as the prosecution has and the practicable steps as set out in 6.5 it becomes clear that the actions of employees are not relevant to relieve the defendant company in any way. The prosecution says that this was a significant departure from industry standards and the consequences of course have been serious with a very obvious hazard and so they say the starting point for the fine should be $85,000. 
[20]
The defence says that the starting point for the fine should be $75,000, acknowledging the practicable steps as identified but pointing out that this is not systemic failure and appears to have been an utterly isolated event. Mr Galloway's submissions also point to the fact that there was training for the correct procedure and so in the circumstances, treating it as an isolated incident and not systemic failure, the starting point should be $75,000. I accept Mr Galloway's reasoning and in the circumstances, looking at the decisions of general distributions in Abyss Ltd that approach is borne out. There are no personal aggravating features and so the starting point before reducing for credits is $75,000. 
[21]
The mitigating features are agreed at 30 percent. I do not need to go into them in any detail. I acknowledge the remedial steps taken, the defendant company's prior good record and the efforts that it made in practical ways to provide support to the victim and family in the first period following the incident. 
[22]
Both are agreed that there should be a 25 percent discount. My mathematics may be little better than those of Ms Liddell but by my calculation and I may be doing her a disservice, on a starting point of $75,000, a 30 percent discount should be seen as $22,500. That takes me to $52,500. A 25 percent discount for plea is $13,125. The end result is a fine strictly calculated at $39,375. I would fix it in the round at $39,000. 
[23]
There is no adjustment required. Therefore, bringing all of those features together, the defendant company is convicted. The defendant company is ordered to pay $68,000 in reparation and fined $39,000 and ordered to pay Court costs of $130. 

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