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Safeguard OSH Solutions - Thomson Reuters

Safeguard OSH Solutions - Thomson Reuters



OSH Tracker

WorkSafe New Zealand v Les Mills Auckland Ltd (DC, 28/10/16)

OSH Tracker

Defendant:
Les Mills Auckland Ltd
Les Mills Victoria Park and West Auckland Steel were each ordered to pay $24,000 reparation to a Les Mills instructor who was seriously injured when he fell 2.7m from a fire escape, unaware its emergency stairs had been removed as part of work to repair corrosion. There was no coordination between the two parties about when the work was to be done, no contractor induction to the site, and no safe work method was discussed (Auckland DC, 28 October 2016). 
Industry:
Cultural and Recreational Services
Sub-Industry:
Sport and Recreation
Risk:
Fall from height
Harm:
Injury
Penalty Amount:
$56000.00
Reparation Amount:
$24000.00
Appeared in Safeguard issue 160
Defendant:
West Auckland Steel Ltd
Les Mills Victoria Park and West Auckland Steel were each ordered to pay $24,000 reparation to a Les Mills instructor who was seriously injured when he fell 2.7m from a fire escape, unaware its emergency stairs had been removed as part of work to repair corrosion. There was no coordination between the two parties about when the work was to be done, no contractor induction to the site, and no safe work method was discussed (Auckland DC, 28 October 2016). 
Industry:
Manufacturing
Sub-Industry:
Metal Product Manufacturing
Risk:
Fall from height
Harm:
Injury
Penalty Amount:
$24000.00
Reparation Amount:
$24000.00
Appeared in Safeguard issue 160

Judgment Text

NOTES OF JUDGE N R DAWSON ON SENTENCING 
Judge N R Dawson
[1]
Today is the day for sentencing two companies. Les Mills Auckland Limited is to be sentenced on a charge of being a principal it failed to take all practicable steps to ensure that a contractor was not harmed by doing work. That is a matter that has a maximum fine of $250,000. West Auckland Steel is also to be sentenced on a charge of being a person in control of a place of work it failed to take all practicable steps to ensure that no hazard that arose in a place of work harmed a person in the vicinity and that also is a matter that has a maximum sentence of a $250,000 fine. 
[2]
Les Mills Auckland Limited operates a gym in Victoria Street West in Auckland. They employ staff who work at the gym and also engage contractors. The victim in this matter was one of those contractors and was engaged as a personal trainer at the gym. West Auckland Steel Limited is a company which undertakes steel fabrication and installations. The sole director of that company is a Mr Wesley Whaits. Mr Whaits is a qualified fabricator welder with 13 years experience in the industry and the only person who worked for West Auckland Steel. 
[3]
In May 2015 it was recognised that two sets of emergency exit stairs at the gym, studio one stairs and ringside stairs, were corroding and required replacing. The maintenance manager for Les Mills engaged West Auckland Steel to do the work. The studio one stairs were removed by West Auckland Steel on 7 August 2015. There was to be a one week delay prior to the new stairs being installed so the area could be waterproofed. Prior to the stairs being removed there was no discussion or arrangement made between Les Mills or West Auckland Steel regarding isolation of that hazard. 
[4]
Mr Whaits did not check in at the Les Mills gym on his arrival on 7 August 2015 and he did not get inducted into the site prior to commencing work nor did either party complete any safety systems of work, standard operating procedures, task analysis or documented method statement. When the studio one stairs were in the process of being removed an employee of Les Mills recognised the potential hazard and proactively took steps to block the area off. The new studio one stairs were installed without incident on 15 August 2015. 
[5]
Once the studio one stairs were replaced, attention then turned to the ringside stairs. The assistant club manager for Les Mills asked Mr Whaits to update her with progress on the work which he did on 7 September 2015 to advise that they should hopefully be completed by the end of the month. 
[6]
Mr Whaits arrived on the site on the morning of Friday 25 September 2015 along with a friend. A mobile crane that could lift the old stairs out once they had been removed and the building was also present. The mobile crane was parked in the carpark area of Wellesley Street. The gates of the carpark had to be removed to enable the crane to be set up. The existing stairway was removed from the building sometime before midday. 
[7]
The carpark was a place of work for West Auckland Steel. West Auckland Steel, through Mr Whaits, was in control of this carpark. It had possession of it, was controlling access to the carpark and is a lessee of the mobile crane and other equipment that was in the carpark. As a person in control of a workplace, West Auckland Steel was obliged to take all practicable steps to ensure that no hazard is or would arise in the place that harms people in the vicinity of that place. 
[8]
The victim was, of course, in the vicinity of the place because he was in Les Mills gym. West Auckland Steel created the hazard of a risk of a fall from heights by removing the stairs. 
[9]
The following practicable steps were available to West Auckland Steel and should have been taken. They should have undertaken a visual check of the emergency exit to ensure it had been adequately blocked. It could have blocked the emergency exit before removing the existing stair. 
[10]
At around 12.10 pm the victim was taking a fitness class in the gym. He opened the fire exit door above the ringside stairs and stepped out. As the stairs had been removed he fell to the concrete floor of the carpark below, a distance of 2.7 metres. Mr Whaits and his friend were still in the carpark packing up when the accident occurred. An ambulance was called and the victim was taken to Auckland Hospital. He sustained a ruptured spleen and fractured hip. 
[11]
As a principal, Les Mills had an obligation under the Health and Safety in Employment Act 1992 to take all practicable steps to ensure that the victim was not harmed while doing the work he was engaged to do. The victim was doing work teaching a fitness class that he was engaged to do. Les Mills was aware that its contractors did use the emergency exit door during class as the matter had previously been discussed. 
[12]
The following practicable steps were available to Les Mills and should have been taken to avoid the harm caused to them. They could have ensured that the emergency exit was blocked by it or by West Auckland Steel when it was aware that West Auckland Steel was going to commence the work. If that was not sustainable a temporary stairway should have been installed. It should have instructed West Auckland Steel that there was a requirement to report and sign in at reception every time they attended the site triggering the defendant's induction procedures. 
[13]
Neither Les Mills Auckland Limited or West Auckland Steel have previously appeared before the Courts. Both companies also fully co-operated with WorkSafe's investigation. 
[14]
Under the Sentencing Act 2002 there are factors that I have to take into account when 1 impose a sentence for a matter of this kind. The first is to hold the companies responsible for the harm caused to the victim of the offending. 
[15]
I have received and read the victim impact statements of the victim and I have also read the statements prepared and handed to the Court today by his mother and sister. It is quite clear that this accident has had a major effect upon the victim and upon his family. He suffered significant injuries from which he is still to fully recover. There is a concern that he may never recover from all of them. I need to provide for the interests of the victim when I sentence the companies here today. 
[16]
Both companies need to understand that they have an obligation of responsibility for their work. A sentence needs to be imposed to make it very clear to each of these companies and to others that there are consequences with failing to fulfil their obligations under the Health and Safety in Employment Act. 
[17]
After a discussion at Court today counsel for the companies have considered and discussed the amount of reparation that could be paid. They have offered $10,000 to the victim for out of pocket expenses, $8000 which would be a 20 percent top-up for the ACC claims available to him and $30,000 for emotional harm, a total of $24,000. They agreed between them, and I agree, that that should be paid half each. 
[18]
The principal case that I need to consider when sentencing the companies today is that of DOL v Hanham and Philp Contractors (2008) NZELR 79. WorkSafe counsel and defence counsel have referred to that in other cases which has been most helpful in setting the sentence today. I have taken into account their extensive submissions that have been made. I will deal with each company in turn. 
[19]
First I will look at the sentence to be imposed on Les Mills Auckland Limited. Upon review of the Hanham and Philp case I am of the view that their culpability is at the medium to high level. The starting point of a fine of $80,000 would be appropriate. There are mitigating factors I need to take into account; their co-operation with WorkSafe, their previous good safety record and their obvious remorse. For that a 30 percent deduction should be made which reduces their fine by $24,000. They also entered a guilty plea at the earliest stage which would justify a further discount of 25 percent of $14,000, that would result in a fine of $42,000. I then need to look at the overall burden of fine and reparation upon that company and the significant offer of reparation that has been made. For that I deduct a further $10,000 and Les Mills Auckland Limited is fined $32,000. 
[20]
I have also made an order that they pay reparation of $24,000 to the victim. From that is deducted the ex gratia payments of $13,560 that they have already paid and the $270 in charges that they have chosen to make to the victim. There is therefore a balance of reparation of $10,170 to pay and that is to be paid by 15 November 2016. 
[21]
I now turn to the sentencing of West Auckland Steel Limited. The fine for West Auckland Steel Limited would have been at least as much as that imposed against Les Mills Auckland Limited but that company has effectively been wound up so it is in no position to pay a fine. Even if a fine was imposed there would be no prospect of payment and the director could simply incorporate a new company if he so chose to do. There is therefore no utility in imposing a fine against West Auckland Steel Limited but I do reiterate that the fine would not have been less than that imposed upon Les Mills Auckland Limited if that had been possible. It is frustrating a company could avoid its obligations in this way. I am ordering the company to pay reparation of $24,000 which it can do because it is insured and able to do that and that is also to be paid by 15 November 2016. 
[22]
In my view the reparation amount is appropriate because the victim was a very fit, active young man. He worked as a cross fit trainer, he played in many sports and he is now very limited in his work and in his leisure activities. There is no doubt he has suffered considerably and his lifestyle has been restricted and will continue to be restricted for a considerable time. He was also unable to continue in his application to be a fireman, which is the job he wanted to do, because he was not fit enough to be able to make the application. In his view he does have ongoing issues. He believed he is 90 percent physically fit but much less so psychologically. For that reason the total reparation of $48,000, in my view, is very appropriate. 

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