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Safeguard OSH Solutions - Thomson Reuters

Safeguard OSH Solutions - Thomson Reuters



OSH Tracker

WorkSafe New Zealand v Board of Trustees of Sir Edmund Hillary Collegiate School (DC, 03/04/17)

OSH Tracker

Defendant:
Board of Trustees of Sir Edmund Hillary Collegiate School
The Board of Trustees of Sir Edmund Hillary Collegiate School was ordered to pay reparation of $40,000 after an employee fell from a ladder while trying to remove a branch from a dead tree in the school grounds, suffering a spinal cord injury. A competent contractor ought to have been engaged (Manukau DC, 3 April 2017). 
Industry:
Education
Sub-Industry:
Education
Risk:
Fall from height
Harm:
Injury
Penalty Amount:
$40000.00
Reparation Amount:
$40000.00
Appeared in Safeguard issue 164

Judgment Text

NOTES OF JUDGE R J McILRAITH ON SENTENCING 
Judge R J McIlraith
[1]
The Board of Trustees of Sir Edmund Hillary Collegiate School, and I will refer to them as the Board hereafter, has pled guilty to one charge under s 6 and s 51(a) Health and Safety in Employment Act 1992. 
[2]
Specifically, it has pled guilty to the charge that, being an employer, it failed to take all practicable steps to ensure the safety of its employee, Aaron Jimmieson, while at work in that it failed to ensure that he was not exposed to the hazards arising out of the dismantling of a tree in the place of work. The maximum penalty for that offence is a fine not exceeding $250,000. 
[3]
There is a feature of this case which is that the Board formed under part 9 Education Act 1989 is a Crown entity as expressed in s 7(1) Crown Entities Act 2004. As a result it is not liable for a fine as one cannot be imposed by this Court. The Board is, however, liable to pay reparation if awarded. 
[4]
Briefly turning to the facts, the Board or the school is actually comprised of three distinct schools, a junior, middle and senior school located on one campus at 2 Frankline Road, Ōtara. The campus includes students from years 1 through 13. Each of those three schools has its own principal. The Board of Trustees covers all three schools and is made up of 14 trustees. 
[5]
Mr Jimmieson is an employee of the Board. At the time of the incident he was a property manager. His job description stated that he was a caretaker. His job description covered various property maintenance tasks. The job description did not state that he was to undertake arboricultural work. A company, Treescape Limited, an arboricultural company or perhaps known as an arborist, had previously been engaged as a contractor to do such work. 
[6]
In March 2016 the school concluded that a tree outside the library was dead. It was approximately seven metres in height and in close proximity to the library. It was also covered in a vine. The tree was inspected and it was decided that it should be removed. Mr Jimmieson was told that the tree appeared to be dead and needed to be removed and he was asked to take a look at it. 
[7]
Mr Jimmieson assured the Board that he was able to undertake that work. He commenced to undertake it and he fell from a ladder that he was using for the purpose of undertaking the work. He suffered extensive injuries as a result of the fall. 
[8]
I have been provided with a victim impact statement from Mr Jimmieson, also from his partner Renee (inaudible: 15:08:41) and also a report from the Auckland Spinal Rehabilitation Unit. What is clear from those reports is that Mr Jimmieson has suffered a number of injuries, those being an incomplete traumatic spinal cord injury secondary to T12 burst fracture, treated with T10-L2 posterior stabilisation. In other words metal rods have been put in either side of his spine and he has had a fusion at T12-L1 level. 
[9]
He has suffered mild to moderate traumatic brain injury. A CT scan showed a scalp haematoma. He has also suffered neurogenic bladder and bowel issues secondary to spinal cord injury. Spasticity, neuropathic pain and erectile dysfunction have also been suffered. 
[10]
In his victim impact statement he goes through the symptoms that he has suffered following his injury. They include pins and needles in his calves and feet, electric shock-type sensations and leg spasms at night which wake him up, difficulty returning to sleep, fatigue and mood swings, dull aches in his thoracolumbar region which increase after he has been working, erectile dysfunction, bladder leakage, weight gain, difficulty with balance and a decrease and blurring of vision. He continues to take painkillers four times daily. 
[11]
In addition to working through his injuries and symptoms, Mr Jimmieson in his victim impact statement talks about the effect of the accident and consequential injuries upon his life. It is clear that it has had a significant impact on his activities outside of work as well as work and also on his relationships. As I say, I also have a statement from Ms (inaudible: 15:10:37). That provides more insight into the injuries suffered by Mr Jimmieson and the way in which it has affected him, particularly in relation to his suffering depression. 
[12]
The report from the Spinal Rehabilitation Unit is typically sanguine in the way it relates the injuries but is also quite positive in terms of its ongoing impressions of Mr Jimmieson. It refers to Mr Jimmieson, who is 48 years old, as having had a satisfactory neurological and functional recovery post-spinal cord injury, his neuropathic pain management to have improved since the last review. Further assessment is planned in late 2017. 
[13]
It is always pleasing in cases of this nature when there has been a referral to restorative justice to see that a restorative justice conference has taken place, which it did in this case on 23 March this year, and that the restorative justice conference has been beneficial. I note at this stage in Court today representatives from the school and also Ms (inaudible: 15:11:50). The restorative justice report works through the discussion that occurred and notes the apologies that have been made as appropriate by the Board. 
[14]
In terms of my duty in sentencing the Board, the approach to be taken in sentencing for a case of this nature is set out by the Court of Appeal in the case of Department of Labour v Hanham and Philp Contractors Limited.1
| X |Footnote: 1
Department of Labour v Hanham and Philp Contractors Limited (2008) 6 NZELR 79 (HC) (2009) 9 NZELC 93,095 (HC)Has partially negative history or cases citing, but has not been reversed or overruled[Yellow] 
The sentencing process requires one to go through a number of steps, firstly assessing the amount of reparation to be paid, second, fixing the amount of the fine, and thirdly making an overall assessment of the proportionality and appropriateness of the total imposition of reparation and the fine. 
[15]
As the Court made clear in that case, reparation and fines serve discrete statutory purposes and that is important to note in a case such as this where no fine can be ordered. Both would ordinarily be imposed but where a lack of financial capacity is in place then reparation trumps fines, so the first step is to fix reparation. That involves consideration of the framework in the Sentencing Act 2002, the taking into account of any offer to make amends, and the financial capacity of an offender. 
[16]
I have received in advance of today written submissions that are very thorough from both WorkSafe and the Board. They identify a difference of view in relation to the amount of reparation that should be awarded, albeit not a substantial difference. WorkSafe submits that an appropriate award would be in the order of $40,000 to $60,000 although that was clarified today to be more in the order of $40,000 to $50,000 with $50,000 considered to be appropriate. The Board submits that $40,000 is appropriate. 
[17]
In looking at what is an appropriate amount to award by way of reparation to Mr Jimmieson to take into account the emotional and other harm that he has suffered, one can have regard to prior cases to seek guidance and certainly there is an objective here and in any sentencing to be consistent to the extent that is appropriate. I have been referred to a number of cases. There are a couple in particular that strike me as being most proximate to the circumstances of Mr Jimmieson. 
[18]
The first of those is that of WorkSafe New Zealand v McAlpines Rotorua Limited2
| X |Footnote: 2
WorkSafe New Zealand v McAlpines Rotorua Limited [2016) NZDC 5359 
in which $40,000 was awarded and the second is that of WorkSafe New Zealand v Fletcher Concrete and Infrastructure Limited3 in which $40,000 was awarded. The injuries of the person in the Fletcher Concrete and Infrastructure case were not dissimilar to those of Mr Jimmieson and it is a case in which I imposed sentence last year. 
[19]
In that case the victim, after suffering an open book fracture of his pelvis, suffered a number of the symptoms and injuries that Mr Jimmieson has suffered and he continued also to suffer pain and suffering post the accident and several months later. It also had very similar evidence of loss of enjoyment of hobbies, sporting activities and relationship difficulties. In that case an amount of $40,000 was awarded. 
[20]
I have looked at those cases where in excess of $40,000 is awarded and I agree with Mr Beadle that this is not a case where in excess of $40,000 would be appropriate. The order is accordingly for reparations to be paid of $40,000 to Mr Jimmieson for emotional harm. 
[21]
While no fine can be ordered, it is nevertheless convention in cases such as this to work through the methodology for the purpose of precedent and denouncing and marking the conduct of a defendant so it is appropriate that I go through that. The judgment of the Court of Appeal in Hanham and Philp set out clearly the bands into which one must try and place the culpability of any particular defendant. The first band, that of low culpability, is a fine up to $50,000, the second, that of medium culpability, is a fine of between $50,000 and $100,000 and the third, that of high culpability, is a fine of between $100,000 and $175,000. 
[22]
The factors that are considered in terms of assessing culpability include the following; the identification of the operative acts or omissions, an assessment of the nature and seriousness of the risk of harm occurring, the degree of departure from standards prevailing in the industry, the obviousness of the hazard, the availability, cost and effectiveness of the means necessary to avoid the hazard, the current state of knowledge of the risks and the nature and severity of the harm which could result, and the current state of knowledge of the means available to avoid the hazard or mitigate the risk of its occurrence. 
[23]
In terms of practicable steps that were observed by WorkSafe and which are accepted by the Board, there are two; firstly, that the Board ought to have ensured that employees do not undertake tree work for which they do not have the qualifications, expertise or competence to undertake, and second, that where an employee does not have the requisite competence to undertake the task of tree work, to ensure that a competent contractor is engaged to undertake that work. 
[24]
A notable aspect of this case is that the hazard had previously been identified in relation to different trees by the Board and they had hired a contractor on that occasion to undertake the work. Mr Jimmieson and other employees had not undertaken this work before. 
[25]
Considering the culpability factors and looking at the case law, WorkSafe encourage me to take the position that the degree of culpability of this case fits within the high, medium or low high band and that a starting point of $100,000 by way of fine is appropriate. Mr Beadle submits that that is too high. He places culpability at the high end of the middle band and submits that a starting point of $80,000 would be appropriate. 
[26]
In a sense one can look at previous cases but really it is a matter of feel for where a case fits in the framework of prior cases and within the Hanham and Philp bands. In my view, taking into account a number of particular factors, this case fits at the low level of the high culpability band and the start point that I would have set, if I were to be assessing a fine, would have been $100,000. 
[27]
The main reasons for that view are because of the obvious nature of this hazard, the fact that arborists had been used previously by the Board, and in that regard I have had note of the report of the expert arborist that WorkSafe have provided, and the inexperience of Mr Jimmieson in dealing with such an issue and, it seems to me, the obviousness of the risk and easy ability to avoid the hazard that should have been at the front of the Board's mind on this occasion. 
[28]
So, I would have set the starting point for a fine of $100,000. There would then have been appropriate discounts which would have been as set out by WorkSafe in its written submissions. They would have amounted to 30 percent. They would have comprised 15 percent for the reparation that the Board was prepared to pay, five percent for the fact that the Board had no previous history, five percent for its co-operation and remorse and five percent for the remedial action which it has taken to avoid any such accident occurring in the future. 
[29]
That would have seen a reduction from $100,000 to $70,000. There would then have been 25 percent for guilty plea deducted from that, which would have been $17,500 which would have left an end fine of $52,500. As I have said earlier, however, I am not in a position to order a fine, given the status of the Board. The outcome is an order of $40,000 reparations in favour of Mr Jimmieson. 


Department of Labour v Hanham and Philp Contractors Limited (2008) 6 NZELR 79 (HC) (2009) 9 NZELC 93,095 (HC)Has partially negative history or cases citing, but has not been reversed or overruled[Yellow] 
WorkSafe New Zealand v McAlpines Rotorua Limited [2016) NZDC 5359 

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