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Safeguard OSH Solutions - Thomson Reuters

Safeguard OSH Solutions - Thomson Reuters



OSH Tracker

Worksafe New Zealand v Silver Fern Farms Ltd (DC, 21/06/16)

OSH Tracker

Defendant:
Silver Fern Farms Ltd
Silver Fern Farms Ltd was fined $38,000 with reparation of $2500 after an off-season cleaner at its Fairton plant received an electric shock when the brush he was using came into contact with a live cable beneath a cabinet. He received burns to his arms and face and was temporarily blinded (Ashburton DC, 21 June 2016). 
Industry:
Manufacturing
Sub-Industry:
Food, Beverage and Tobacco
Risk:
Electrocution
Harm:
Injury
Penalty Amount:
$41000.00
Reparation Amount:
$2500.00
Appeared in Safeguard issue 158

Judgment Text

NOTES OF JUDGE J E MAZE ON SENTENCING 
Judge J E Maze
[1]
Silver Fern Farms Ltd faces one charge of failing to take all practicable steps to ensure the safety of Trevor Taylor, and in particular, failing to take all practicable steps to ensure he was not exposed to hazards arising out of electrical installations. 
[2]
The victim has been a very longstanding employee of the defendant company and perhaps now is a good point to record his words in his victim impact statement of April. 
“I have worked for the defendant company for a very long time now and had and still believe I have a very good working relationship with everyone at the Fairton plant, from the plant manager downwards. I don't blame anyone, any individual for my accident, rather simply note that when I first started at Fairton there was an electrical foreman and half a dozen or more long serving electricians plus an apprentice or two. For the last few years we have had a succession of electricians in the plant and I think at the time of this accident there was one supervisor, one electrician and an apprentice. Things just got overlooked. I would like to end by saying that I recently met with Nathan Campbell who I understand is the defendant company's group health and safety manager who apologises to me on behalf of the company for this accident. I accept this apology and believe it was genuinely meant. ”
[3]
The specific duties of the victim included cleaning in the plant in what might be termed the off season for what were his principal duties. His duties were very wide ranging. He was, I believe 63 years of age at the time of the accident. During alterations more than 10 years before the accident, a then redundant electrical cable was left exposed in the concrete floor. What was in effect internal wiring within the concrete floor was left with one end exposed and unprotected and the other end still connected to the switchboard. The cable was live and carrying 400 vault three phase supply. While cleaning that day, the victim swept the floor and then got down on his hands and knees and used a hearth brush to clean under some switchboards striking the live redundant cable. He was knocked over, temporarily blinded and he had bums to his hands and face. He received immediate assistance from others nearby, was hospitalised for a day and then received outpatient treatment for burns for three weeks. 
[4]
The prosecution identifies the hazards and the practicable steps in ways which correctly in my view sum up the situation. The hazard of a live electrical cable is obvious. It is obvious to anyone. 
[5]
The practicable steps are said to be ensuring redundant cables were disconnected and removed, or, if that was not possible, they should have been isolated, terminated and buried. It was a practicable step to ensure that redundant switches were disconnected or removed or tagged out of service and locked out. It was a practicable step to undertake electrical audits or (I would say “and”) periodic verification inspections of the distribution networks and process controls. It was a practicable step to follow established procedures for locking out, tagging and securing switchboards and switch rooms, and a practicable step to ensure that schematics of electrical installations were up to date and checked against records. It was a practicable step to ensure that log books were kept for maintenance and modifications carried out and it was a practicable step that there was a job safety analysis and task instructions for the cleaning task. 
[6]
In response to that, the defendant company accepts entirely that all of those steps were readily available and at relatively minimal cost, but says that the company relied on professionals when the work was done. They say it is really of no consequence whether they were external contractors or members of the staff, although it appears likely they were members of staff. It is relevant that for 10 years the problem lay undiscovered and there was simply no reason to anticipate it would be live. I share the prosecution's view that the emphasis here is twofold. It is partly on the existence of the risk but it is secondly on the steps taken to ensure that any risk is readily identified and managed. That involves regularity and discipline of inspections and documentation. 
[7]
The defendant company in one or other of its previous corporate identities has had seven convictions for previous breaches. The victim impact statement records a pragmatic and generous attitude on the part of the victim. Those views were also aired in the restorative justice conference, for which the defendant company must be given credit in initiating that process and in seeking to allow the victim to air his concerns and to express their apologies and remorse. 
[8]
The victim's partner spoke of other consequences. She said he is a shy man, a man of few words normally, but he now creates barriers to avoid outside interaction. He is self conscious about how his skin appears in different temperatures and she refers to a semi reclusive lifestyle. She says this should never have happened. Mr Cleary accepts that all the matters aired at restorative justice can be available to assess the impact of this offending on the victim. I take into account that the physical impact is dwindling and that, apart from sensitivity of skin, as of today there is no scarring and likely to be relatively little further required to restore Mr Taylor. The emotional impact has however plainly been significant. I acknowledge entirely Mr Taylor's age and the nature of the physical injuries. 
[9]
The matter did go to restorative justice, it was an extremely positive meeting, it was held entirely on the victim's terms and the defendant company was fully co-operative with that. They provided some support at the time and they have paid $10,000 as an emotional harm reparation payment. 
[10]
The approach is dictated by Department of Labour v Hanham & Philp Contactors 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]  and there are three stages to the sentencing exercise. The first involves fixing reparation. Mr Taylor received burns to six and a half percent of his body but the crucial point about that is that some of it, a significant part of it was to his face. He would have experienced very painful skin surface problems and his skin surface remains fragile even now. I have referred already to the emotional impact. 
[11]
The prosecution seeks an emotional harm payment of $20,000 which would leave, taking into account the $10,000 paid, a balance of $10,000. It is accepted that that each case must be decided on its facts. Mr Cleary submits that the $10,000 is an appropriate and fair payment. It is agreed between the parties that there is nothing outstanding in respect of consequential loss. 
[12]
The victim is 63. The emotional impact does have some significance because it creates a greater degree of dependence upon the defendant company. At 63 with some emotional fragility, finding alternative work anywhere else will not be easy and so it is in part to recognise the emotional impact that I intend to increase, but only by a small margin, the amount of reparation. I take into account the $10,000 paid, and I consider there should be a further payment of $2500 specifically to recognise those factors to which I have referred. This man remains heavily dependent upon his employment with the defendant company continuing. 
[13]
As to the fine, I am obliged to follow the process of identifying where within the banding this offending occurs. I have to identify operative omissions in issue, assess the nature and seriousness of the risk as well as the actual harm, consider the degree of departure from industry standards, the obviousness of the hazard, the availability of cost and effectiveness of means to avoid the hazard and the current state of knowledge in relation to those matters. 
[14]
It is really difficult to imagine anything more glaringly obvious than the live end of a connected cable exposed without shield or protection of any kind and without management (for want of a better word). The hazards of leaving this wire exposed even where it is in something of a gap under a structure is painfully obvious. It is in fact hard to understand why this accident has not occurred sooner and I bear in mind that it could have been a great deal more serious in consequences. The remedies are easily obtained and inexpensive and so I have sympathy for the Worksafe submissions that this is more than the bottom end of band 2. 
[15]
The argument from the defendant company that they were entitled to rely upon the professionalism of their staff is a circular argument because it would have been other employees of the defendant company who employed those staff in the first place. In the end, the argument really does not avail the defendant company, neither does the fact that it lay undiscovered for 10 years. Had the defendant company engaged in a proper process of examination, inspection, documentation, carried out on a regular basis, this live wire would have been discovered years ago. So bearing in mind all the available remedies, the inexpensive nature of those remedies and the want of examination documentation and maintenance, I adopt the view that it is higher than the bottom end of band 2. 
[16]
Worksafe seeks a starting point of $75,000 to $85,000. Mr Cleary seeks a starting point of $55,000. In the circumstances, I consider that the appropriate starting point is at $70,000. The hazard was obvious. I have already addressed the other factors, the risk was high, the documentation and inspection was poor and the length of time over which it remained in place is a significant factor. I accept that Worksafe New Zealand v Britton1
| X |Footnote: 1
[2015] NZDC 2101 
is a more serious situation but of course a much higher start point was adopted and Department of Labour v Avo Plus Limited2
| X |Footnote: 2
DC Tauranga CRN 12070501231, 27 August 2012 
was a more serious situation but not by such a high degree. 
[17]
I therefore take a starting point of $70,000 for the fine. The seven previous convictions for offending of this kind must call for some uplift. Rather than fixing a percentage, 1 fix the figure at $3500. It is more or less 5 percent. That brings me to a figure of $73,500. 
[18]
There is some argument between counsel as to the appropriate level of the discount. Mr Cleary is prepared to accept 30 percent. I accept that 30 percent is applicable. I cannot say this company has a good safety record, but I do give some significant allowance for what appears to have been a very positive contribution to the investigation by the provision of a report at a very early stage to Worksafe by the defendant company. So a deduction of 30 percent is $22,050 bringing me down in strict calculation to $51,450. The other basis for allowing the 30 percent is the very high involvement in restorative justice to the point where the entire process was carried out on the victim's terms. 
[19]
That brings me then finally to a 25 percent discount for plea which is strictly $12,862. I will round it down to a fine of $38,500 and a further reparation figure of $2500 plus $130 in Court costs. 
[20]
I do the deductions seriatim on the net figure so that the 25 percent is on a lower figure, whereas adopting the approach originally sought by Mr Cleary with a broad discount of 60 percent to represent previous good record, reparation, remediation and co-operation plus allowance for plea, then it is calculated on the gross figure. I believe the amount would then differ but my mathematics are not the best. However, I am adopting the approach I always adopt and I simply point out that the amount is, the percentage reductions continue on a diminishing figure. 
[21]
The defendant company is convicted. It is fined $38,500. It is ordered to pay a further reparation figure of $2500. It must pay Court costs of $130. 


[2015] NZDC 2101 
DC Tauranga CRN 12070501231, 27 August 2012 

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