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Safeguard OSH Solutions - Thomson Reuters

Safeguard OSH Solutions - Thomson Reuters



OSH Tracker

WorkSafe New Zealand v Yarrows (The Bakers) 2011 Ltd (DC, 05/12/16)

OSH Tracker

Defendant:
Yarrows (The Bakers) 2011 Ltd
Yarrows the Bakers was fined $39,375 with reparation of $28,574 after an employee was crushed between a dough bin and a 420kg mixing bowl containing 50kg of dough, which came free from its hoist while being lifted. He was off work for three months and continues to have issues with his eyesight and back. Training procedures for the hoist were inadequate, there were no guards to prevent workers getting too close, and there was lockout to prevent the hoist being used by more than one person (Hawera DC, 5 December 2016). 
Industry:
Manufacturing
Sub-Industry:
Food, Beverage and Tobacco
Risk:
Machinery (trapped, crushed, cuts)
Harm:
Injury
Penalty Amount:
$67949.05
Reparation Amount:
$28574.05
Appeared in Safeguard issue 161

Judgment Text

NOTES OF JUDGE G P BARKLE ON SENTENCING 
Judge G P Barkle
[1]
Yarrows (The Bakers) 2011 Limited has pleaded guilty to one charge of failing to take all practicable steps to ensure the safety of Peter Ngarewa while at work, in that it failed to ensure he was not exposed to hazards arising out of the use of a hoist machine. 
[2]
The maximum penalty Yarrows is subject to under the Health and Safety in Employment Act 1992 is a fine not exceeding $250,000. 
[3]
First, may I acknowledge the very helpful submissions, written and oral I have received from counsel for the informant Ms Brabant and counsel for the defendant company, Ms Challis. 
[4]
The summary of facts records that Mr Ngarewa had been employed as a baker's assistance by Yarrows since 2011, and before that he had worked for its predecessor for approximately three years. So he had been working at the particular site for approximately eight years prior to the accident occurring. One of the lines at the defendant's bakery is known as the Rheon two line. A hoist machine (known as the bowl lifter) is used on this line to raise large mixing bowls filled with dough. Staff then reach inside and divide the dough into portions and then tip each portion out into a dough bin. Typically each bowl weighs approximately 420 kilograms and can contain up to 150 kilograms of dough. At the time the accident took place, I understand there was approximately 50 kilograms of dough inside the bowl. 
[5]
On 1 October 2015, Mr Ngarewa had commenced his shift at approximately 2.00 am. This was the last run on the particular line during that shift and the incident took place at approximately 6.40 am. 
[6]
The bowl was attached to the hoist machine and, for one reason or another, would not move. Mr Ngarewa notified the shift supervisor. That person opened a second control box to allow Mr Ngarewa to continue to remove the dough from the bowl. The supervisor then went to locate the duty engineer so the machinery could be looked at. 
[7]
The shift supervisor returned to the location of the bowl and hoist machine. Mr Ngarewa was still removing the dough and putting it into the dough bin. Without identifying exactly where Mr Ngarewa was the supervisor raised the bowl from the second control box. A snap sound was heard and the bowl spun forward on the forks, hitting Mr Ngarewa. He was crushed between the bowl and dough bin. 
[8]
Nearby employees managed to life the bowl off Mr Ngarewa to free him. He was transported to hospital by ambulance as quickly as that could happen. 
[9]
Mr Ngarewa suffered a rib fracture, a small left central pneumothorax and a bruised lung. 
[10]
In cases of this nature, the purposes of denunciation, deterrence and accountability from s 7 Sentencing Act 2002 are given significance by a sentencing Court. In respect of the sentencing principles in s 8 Sentencing Act of particular relevance are the gravity and seriousness of the offending and impact on Mr Ngarewa. The Court is also required to take into account offers of putting matters right by the defendant and also the least restrictive sentencing options as is appropriate in the circumstances. 
[11]
I must also have regard to consistency of sentencing levels as best that can be achieved when the facts applicable in each case are always going to be different. 
[12]
The leading case on the approach to sentencing in this area is Department of Labour v Hanham & Philp Contractors Limited & Anors1
| X |Footnote: 1
Department of Labour v Hanham & Philp Contractors Limited & Anors [2008] 6 NZELR 79 
where the full Court of a High Court reinforced that a proactive and preventative approach to accidents was required by the Act. 
[13]
Three steps are involved in the sentencing process. The first is an assessment of the amount of reparation. Then the Court is required to fix the amount of a fine and finally, an overall assessment of the proportionality and appropriateness of the total imposition of reparation and fine must be considered by the Court. 
Assessing quantum of reparation 
[14]
The Court accepts that reparation must be a principle focus of the sentencing process. I have received a victim impact statement and attached to that were the medical records which underlined the particular physical injuries suffered by Mr Ngarewa. As I have already said, he suffered a rib fracture, a small left central pneumothorax and a bruised lung. There was also pain in his lower back. His arm is weak and he suffers ongoing pain requiring medication and has trouble breathing. 
[15]
His peripheral vision in his left eye has been affected which means he experiences a blind spot particularly when driving. 
[16]
In the victim impact statement he has detailed the emotional harm as including the loss of confidence when driving a motor vehicle. That means that instead of driving from his usual home, some distance from Manaia where the workplace is he now lives in Hawera during the working week. That means he is closer to his work. He feels the loss of independence when having to rely on other people to drive him. 
[17]
Mr Ngarewa felt uncomfortable about going back to work and what others may have thought of him because of having sustained the injuries and being part of the accident. Those close to him say he gets moody easily since the accident. Mr Ngarewa feels like he has lost energy, he feels drained and tired all the time. He says he is not as active as he used to be and has referred to the taking of medication daily to help with pain, which is something he does not like to do. He also has trouble sleeping. 
[18]
As I understand the position, he was away from work for almost three months. He tried to return just prior to Christmas of 2015 but then took further leave through until January of this year. 
[19]
Quantifying emotional harm is inherently difficult. As was said by Harrison J in Big Tuff Pallets Limited v Department of Labour2
| X |Footnote: 2
Big Tuff Pallets Limited v Department of Labour HC Auckland, CRI-2008-404-000322, 5 February 2009, Harrison J 
 
“Fixing an award for emotional harm is an intuitive exercise; its quantification defines finite calculation. ”
[20]
Counsel for both parties have addressed the Court both in writing and orally about where the level of reparation should be fixed. An amount of $20,000 was paid at the restorative justice conference on behalf of the defendant company. 
[21]
Ms Challis submits that this amount is appropriate having regard to other similar cases. 
[22]
In contrast, Ms Brabant suggests that the level of reparation should be between the amount of $30,000 and $40,000 and like Ms Challis, references a number of cases which support that level of reparation. 
[23]
In my determination, having regard to the physical injuries suffered by Mr Ngarewa and the ongoing impact of those, together with the emotional harm of the injuries, the appropriate amount for the award of reparation in this case is the amount of $27,500. 
[24]
As I have already said, $20,000 of that has been paid. I also order a payment of $106 in respect of medical costs incurred by Mr Ngarewa and the amount of $968.05 for the shortfall between the ACC payments received and the weekly income he would have received had he been able to work. The total of those three sums is $28,574.05. 
Quantum of fine 
[25]
The second step in the sentencing exercise is to assess the quantum of the fine which should be imposed. 
[26]
Again Harrison J, this time in the case of Police v Ferrier3
| X |Footnote: 3
Police v Ferrier (CRI-2003-404-000195, Harrison J) 
, noted the disparate purposes served by a fine and reparation. His Honour said that: 
“A fine is essentially punitive; it is a pecuniary penalty imposed by and for the state. By contrast, an order for reparation is compensatory in nature, designed to recompense an individual or her family for financial loss or emotional harm suffered as a result of another's offending. The two are conceptually different and serve disparate purposes. ”
[27]
Both parties' counsel agree that the start point for the fine is in the medium culpability band of $50,000 to $100,000 established in Hanham & Philp. In that case, a number of factors relevant to the assessment of culpability were listed. 
[28]
In respect of this case, those include in my assessment: 
1.
The practicable steps that Yarrows accepted it did not take which included: 
a)
Not identifying the hazards presented by the hoist machine. 
b)
Ensuring the forks of the hoist machine were stable and could not dislodge. 
c)
Guarding the hoist machine to isolate its employees from its moving parts. 
d)
Ensuring the second control box was only able to be accessed by suitably trained personnel. 
e)
Ensuring employees understood how the limit switches worked. 
f)
Ensuring all employees understood and followed the lockout/tag out procedures. 
g)
Ensuring the hoist machine was only operated by one person at a time. I accept Ms Challis' submission that this was not a situation where the defendant company was aware of a problem with the hoist and then have failed to address it. As she put it in her written submissions, it was not a case that Yarrows elected to court a known risk. 
2.
Hazard and risk assessment. There was a failure by the defendant to identify that the hoist machine presented a hazard to the health and safety of its employees. While it had in place a hazard register, the hoist machine was not identified on the register and no hazards therefore attributed to the machine. Accordingly, Mr Ngarewa, nor any other employee could be informed of any hazards in relation to the hoist machine. That of course meant that the health and safety manager had not made the appropriate assessment in terms of the risk of the hoist machine. As Yarrows also accepted in terms of failing to take the available practicable steps, there was no guarding in place to prevent employees from getting within close proximity of the bowl when it was on the hoist. 
3.
As I have already set out, the training and assessment procedures in respect of the hoist machine up until the time of the accident were inadequate. 
4.
The availability, cost and effectiveness of the means necessary to avoid the hazard. The summary of facts set out seven remedial steps taken by Yarrows since the accident. The cost of these amounted to $20,616. That is a significant sum, but obviously pales somewhat by comparison with the impact of the accident and consequences for Mr Ngarewa. 
5.
The degree of departure from industry standards. There are a number of industry standards and guidelines which were not complied with by the defendant company up until the time of the accident. These are set out in publications such as AS/NZ 4024 Safety of Machinery, WorkSafe's Best Practice Guidelines, Safe Use of Machinery and General Principles of Machine Guarding and also the MBIE's Ergonomics of Machine Guarding Guide for May 2013. Clearly the informant's position is that these were available publications to the defendant company, which if they had been taken notice of may well and could have assisted in this accident not taking place. 
[29]
The above matters, as I say, are set out in the leading High Court authority as matters which are required to be assessed by a Court in setting the start point of the fine. I agree with the assessment by counsel of the defendant companies culpability lying in the second band of Hanham & Philp is the correct one. 
[30]
My determination of the start point of the fine is one of $75,000. 
[31]
There are no aggravating factors applicable in this case. 
[32]
In terms of matters of mitigation, I take account of the following: 
1.
The payment of reparation. 
2.
The attendance at the restorative justice process of the owners and management of the defendant company. It is clear from the report that there was a genuine involvement and uptake in the restorative justice process. In my view that would have been of much assistance to Mr Ngarewa. As well as the payment on the day of a significant sum of reparation there were also offers of assistance to meet the costs of counselling and with costs related to dealing with the eye issue. They were tangible steps on the part of the defendant company. In my view, Yarrows have adopted a responsible and empathetic stance since the accident took place. 
3.
There has been full co-operation with the investigation by WorkSafe. 
4.
As I have already noted, remedial action has been taken by the defendant company. 
5.
The remorse that has been shown, in my view has been genuine on the part, as I say, of all those involved with Yarrows. 
[33]
Accordingly, I have little difficulty in agreeing with the shared stance of counsel for the informant and defendant that a 30 percent discount on the start point figure should be applied. That is an amount of $22,500. Making that deduction results in a figure of $52,500. I then apply the full discount of 25 percent for the guilty plea arriving at a final figure for the fine of $39,375. 
Overall assessment 
[34]
When I stand back to consider the third step of the assessment, the total fine and reparation imposed in my view is proportionate and appropriate to the circumstances of the offending and the purposes and principles of the Sentencing Act. So I have recorded on the charging document 052, the guilty plea, a conviction and reparation payment of $28,574.05, fine of $39,375 together with Court costs of $130 and solicitor's costs of $250. 


Department of Labour v Hanham & Philp Contractors Limited & Anors [2008] 6 NZELR 79 
Big Tuff Pallets Limited v Department of Labour HC Auckland, CRI-2008-404-000322, 5 February 2009, Harrison J 
Police v Ferrier (CRI-2003-404-000195, Harrison J) 

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