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Safeguard OSH Solutions - Thomson Reuters

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OSH Tracker

Worksafe New Zealand v Reoco Ltd (DC, 10/11/16)

OSH Tracker

Defendant:
Reoco Ltd
Reoco Ltd and Ebert Construction Ltd were each fined $33,000 with reparation of $30,000  after a Reoco truck delivering steel to an inner city construction site under Ebert’s control parked on a slope and used its own crane to unload, requiring the motor to be kept running. The tower crane on site was not used. The driver had a 7-year-old boy in the cab. The truck rolled backward and struck another man, crushing him into another truck and causing severe injuries (Auckland DC, 10 November 2016). 
Industry:
Construction
Sub-Industry:
General Construction
Risk:
Vehicle - road (eg truck, car, bus)
Harm:
Injury
Penalty Amount:
$63000.00
Reparation Amount:
$30000.00
Appeared in Safeguard issue 161
Defendant:
Ebert Construction Ltd
Reoco Ltd and Ebert Construction Ltd were each fined $33,000 with reparation of $30,000  after a Reoco truck delivering steel to an inner city construction site under Ebert’s control parked on a slope and used its own crane to unload, requiring the motor to be kept running. The tower crane on site was not used. The driver had a 7-year-old boy in the cab. The truck rolled backward and struck another man, crushing him into another truck and causing severe injuries (Auckland DC, 10 November 2016). 
Industry:
Construction
Sub-Industry:
General Construction
Risk:
Vehicle - road (eg truck, car, bus)
Harm:
Injury
Penalty Amount:
$63000.00
Reparation Amount:
$30000.00
Appeared in Safeguard issue 161

Judgment Text

ORAL JUDGMENT OF JUDGE R J COLLINS 
Judge R J Collins
[1]
Two defendant companies Ebert Construction Limited and Reoco Limited, each face one charge under the Health and Safety in Employment Act 1992. 
[2]
Reoco faces a charge, which as amended reads, “Being an employer, failed to take all practicable steps to ensure that no inaction of its employee, the named employee, while at work harmed any person.” In the particulars, “When failing to secure a crane mounted delivery truck against uncontrolled movement and taking a child in the crane mounted delivery truck.” The second defendant Ebert Construction Limited faces a charge “that being a person, who controls the workplace, failed to take all practicable steps that no hazard that is or arises in the place, namely uncontrolled movement of a crane mounted delivery truck harms people in the vicinity of the place.” Each defendant company pleaded guilty to the charge. 
[3]
The summary of facts, which has been prepared following a significant amount of work and discussion with defence counsel, runs to eight pages. It can be annexed to any sentencing judgment and those in Court will not have to endure me reading into the record the seven and a half pages of the summary of facts. But, in short and summarised the best I can, is that on 29 January 2015 the victim in this matter 
Mr Shane Steedman-Bennett was working at a construction site off Williamson Avenue in the inner west of Auckland. The defendant Ebert Construction was the head contractor for the construction of the building there and the defendant Reoco Limited was subcontracted to supply steel works and to deliver those steel works. Mr Steedman-Bennett was working for a company subcontracted to do concreting work. 
[4]
As time progressed, I am told, over the course of the project vehicles coming to the site were no longer able to drive on to the site. A plan attached to the summary of facts shows a street which I understand to be Pollen Street, which ran off Williamson Avenue and had Vinegar Lane also run off it in turn, and a loading bay area was established immediately adjacent or next to the construction site at 2/4 Williamson Avenue in Grey Lynn. 
[5]
So on the day in question, the defendant Reoco's driver in delivering steel products parked in this loading bay area. In broad terms, it had a gradient which in the first part was 5.71 degrees and in the second part was 4.74 degrees, but that is best, I think, captured in meaningful terms by Mr Symon's description - “this area was on a slope.” In any event, the driver who arrived on this day had with him a seven year old in the cab of the truck. For whatever reason, and the culpability for this it is agreed between the defendants is to be shared between them, the tower crane on the site was not used to unload the steel but the driver used the crane on the truck, and from what I have already said the truck was on a slope. To use the crane of the truck, the engine had to be left running and the handbrake applied. Therefore the engine could not be turned off and the vehicle could not be put in gear and nor were any chocks used under the wheels to stop any uncontrolled movement. 
[6]
So, in terms of the approach to the legislation what were the hazards that needed to be mitigated, minimised or removed? Firstly the failings here were the presence of the seven year old in the cab, the unloading of steel from a truck on land that had a gradient and the non-use in these circumstances of the tower crane which was on the site. 
[7]
Despite the volume of material supplied to me, nowhere did anybody come out and specifically declare that the cause of the truck rolling back uncontrolled and colliding with Mr Steedman-Bennett was that the seven year old must have somehow inadvertently and by accident released the brake. So, as the truck rolled back, as it did, the victim, who was unloading material from a work vehicle slightly further down Pollen Street, was crushed between the truck and the vehicle he was taking items from. 
[8]
I do not want to say much about Mr Steedman-Bennett's injuries in Court. He has been here all afternoon and I suspect he would be embarrassed to an extent and made uncomfortable by a lengthy detailing by me of how he suffered, but suffered he surely has. What is also obvious when one absorbs all the information in this case is what an outstanding young man he is and Mr Symon is absolutely correct to describe him as stoic. It brings into stark focus the difficulty that sentencing Judges have in making an evaluation of just how something like this has affected any particular one individual. As Mr Symon said, the injuries that Mr Steedman-Bennett suffered would have fully entitled him to sit on the couch and give up. However his determination not to let the injuries he suffered defeat him and his determination to still make the most of life saw him prematurely return to work on two occasions. Then the effect of his injuries caused further injury and forced further rest, recovery and rehabilitation. 
[9]
I have no doubt that the victims in the cases of HEB, Fletcher Concrete and Harvest Pro also suffered significantly, but this is not an exercise of working out broken bone by broken bone or ruptured ligament by ruptured ligament or internal injury by internal injury on a case by case basis and saying, “Well you will get this amount for each broken bone or other injury.” I have a view that, if anything, the level of reparation set in these matters has probably been too low but that view is of no moment today. That particular view of mine is of no moment. I am not setting out here on any crusade in that regard. What I have got to do is set the level of reparation that is appropriate for this particular young man, and I will include by way of appendix or footnote1
| X |Footnote: 1
Mr Steedman-Bennett's injuries include: 
“broken pelvis with a steel plate inserted where the top of the leg bone sits in the socket, crushed bicep muscle requiring surgery, three broken front teeth and one knocked out, numerous head and facial lacerations, severe nerve damage both to his leg and abdomen, severe internal abdomen laceration, hospitalisation for 40 days, inability to walk for several weeks, severe and ongoing pain from injuries and nerve damage, re-injury of his hip following return to work, painful rehabilitation, advice that a hip replacement will be required every five years, the knowledge he can no longer do many of the physical things he used to be able to do, the pressure put on relationships. ”
when the written judgment comes out just how he has suffered but, as I say, I do not want to subject him to me detailing that in his presence in Court today. 
[10]
The only thing I will add which makes things particularly tragic in his case is that he knows that every five years he is looking at hip surgery and this has been told to him by his orthopaedic surgeon. He has been wonderfully supported by his partner, his family and his employer. I have said before, if there is one thing the Judges would ask for if they were to be given their ultimate wish list in life is to be able to restore victims to the position they were in pre the offending but that is just simply is not possible. 
[11]
So, having regard to the cases that I have mentioned as the ones that I find of most assistance today, and bearing in mind consistency in the overall sentencing process, I set the level of reparation to be paid to Mr Steedman-Bennett at $60,000 and that is to be apportioned equally at $30,000. As I understand matters, Ebert Construction Limited has already made a payment of $5000. That can be treated as being included in the $60,000 and I understand there has been an amount of $1000 paid by the defendant Reoco Limited and that can also be treated as being part of the $30,000 that defendant has to pay by way of reparation for emotional harm. I would add that but for feeling at least somewhat constrained by the awards made in other cases, I would set the figure for reparation here even higher than I did. 
[12]
I turn now to the question of a fine. The matter is to be approached on the basis set out by the Full Court of the High Court in the leading case of Hannam. Here I have been greatly assisted by the analysis and thorough written submissions by all counsel and there really is not a great deal of difference between counsel. The prosecution say the starting point is between $70,000 and $80,000. Mr Nicholson, for Ebert, says it is at the bottom of that range and Mr Anderson, for Reoco, would submit that the starting point is no more than $65,000. 
[13]
Taking into account the numerous factors set out in Hannam and taking really the very little difference between the parties to that starting point, my view here is that the starting point for each defendant, who I am not prepared to distinguish between in terms of culpability, is $65,000. As I say, the reason I am not prepared to distinguish between the culpability is this. The key factors in the offending were: firstly, the presence of the child. Neither company did enough to avoid that situation, and both accept that by their pleas. Even if on that factor it could be argued that Reoco is more culpable than Ebert, it balances out in my view at the next stage. 
[14]
Secondly, the use of a unloading area which was on a slope. There was a lack of warning about that and the failure of all the steps around that is the next significant factor. I regard Ebert as being more culpable there than Reoco. As I say, it all has a tendency to balance itself out. The failure to use the tower crane is something that is to be shared or the blame for that is to be shared equally between the two defendants. 
[15]
There have been submissions in Court about then how to quantify matters for which each defendant is entitled for credit. Mr Nicholson argues strongly for what has been termed in Court the Ballard approach. Mr Symon by reference to a decision of Duffy J I understand him to suggest, “Well it doesn't necessarily have to be such an item by item specified process.” I do not think Mr Anderson would regard me as being unkind to say that he probably comes somewhere in the middle between the highly line by line prescriptive approach in Ballard or a more globalised assessment of matters. 
[16]
But anyway, taking what has been referred to as the Ballard factors, I will address them all in turn and that is from the starting point of a fine of $65,000. Firstly, what is said to be the discount for the payment of reparation. I consider in a true Sentencing Act 2002 approach that is best regarded as an offer to make amends. I am not going to quibble in terms of setting a fine with the steps taken by both defendants in terms of efforts to make amends. I can accept, despite the exchange that I have had with counsel today, that once these terrible accidents happen it becomes an extremely difficult and fraught situation for all concerned. I do accept that both defendant companies are run by well intentioned people who do care. 
[17]
So, for that, I agree that an amount of ten and a half thousand dollars credit each applies. I am not dealing in fine percentages. There is certainly a school of thought within the Court of Appeal that giving discounts should be expressed in numbers rather than percentages and that way avoid problems with arithmetic. I agree that each is entitled to a credit of $7000 for co-operation with the prosecutor, and I agree that each is entitled to a credit of three and a half thousand dollars for the remedial actions that they have taken with respect to their own companies. 
[18]
However, having allowed the ten and a half thousand dollar credit for offers to make amends, I am not prepared in this case to provide any further discount for remorse, nor am I prepared in this case to provide further discount for either defendants' safety record. In the case of Ebert, I accept that what Mr Stoffel says in his affidavit is essentially correct that the company is committed to health and safety. But I consider that matter is balanced out by the previous conviction in 2012 which was for a serious breach under the Act, and I have not uplifted the starting point for Ebert on account of that previous conviction. 
[19]
With respect to Reoco, given its approach in this matter, in terms of the training provided and the communication provided to his drivers and the failings there, I am not prepared in this case to allow a discount for its safety record. So the discounts that I do provide total $21,000. That brings the fine from $65,000 to $44,000 prior to allowance for guilty pleas. I see no reason not to allow full 25 percent for each. Unquestionably it is the case that the pleas did not come early in time but the reasons for that have been well explained. The Supreme Court in2
| X |Footnote: 2
Hessell v R [2011] 1NZLR 607 
Hessell v R said that what is required is an evaluation of the true worth of the plea. The true worth of the plea here is that it avoided a trial and all the trauma that would have been associated with that. 
[20]
So, each defendant will be fined for the charge they face $33,000, and I will discuss with counsel now the question of timing of payment of both reparation and the fine. Before that, I should add that having come to that figure of the fine, there has nothing been put before me which would require any adjustment in terms of Hannam given the reparation that has been ordered and the fine that has been set. 
[21]
The order of reparation for emotional harm of $30,000 is to be paid by 11 December; that is in just over a month, 2016. The fine of $33,000 to be paid, first payment of $16,500 by 31 January 2017. Second payment of $16500 by 30 April 2017. 


Mr Steedman-Bennett's injuries include: 
“broken pelvis with a steel plate inserted where the top of the leg bone sits in the socket, crushed bicep muscle requiring surgery, three broken front teeth and one knocked out, numerous head and facial lacerations, severe nerve damage both to his leg and abdomen, severe internal abdomen laceration, hospitalisation for 40 days, inability to walk for several weeks, severe and ongoing pain from injuries and nerve damage, re-injury of his hip following return to work, painful rehabilitation, advice that a hip replacement will be required every five years, the knowledge he can no longer do many of the physical things he used to be able to do, the pressure put on relationships. ”
Hessell v R [2011] 1NZLR 607 

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