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Safeguard OSH Solutions - Thomson Reuters

Safeguard OSH Solutions - Thomson Reuters



OSH Tracker

WorkSafe New Zealand v Burrows (DC, 06/09/17)

OSH Tracker

Defendant:
Philip Burrows
Racecourse operator Phillip Burrows was ordered to pay reparation of $25,000 for a breach of s36 of the HSW Act 2015. Trading as Phillip Burrows Racing Stables, he allowed two children to ride on the outside of a water tanker truck while wetting a horse racing track. One of the children fell from the truck and was run over by the rear wheels, and was hospitalised for a month. No fine was imposed due to financial circumstances. It is the second sentencing under the HSW Act (Christchurch DC, 6 September 2017). 
Industry:
Cultural and Recreational Services
Sub-Industry:
Sport and Recreation
Risk:
Struck by moving object
Harm:
Injury
Penalty Amount:
$25000.00
Reparation Amount:
$25000.00
Appeared in Safeguard issue 165

Judgment Text

NOTES OF JUDGE G S MacASKILL ON SENTENCING 
Judge G S MacAskill
[1]
Mr Burrows, as you will have perceived for yourself, I am afflicted by a rather croaky voice at the moment. I do not want to run out of voice, so I am going to deal with these matters as quickly as I can. I may have to abbreviate things if I lose my voice. I am not going to be brief out of undue haste. I do not wish to be disrespectful to you or to the victim. 
[2]
You are charged that, being a person conducting a business or undertaking, you failed to ensure, so far as was reasonably practicable, the health and safety of other persons, including … , and that he was not put at risk from work carried out as part of the conduct of the business or undertaking, namely using a water tanker to water the racing track. 
[3]
The particulars given with respect to the charges: That it was reasonably practicable for you to have ensured that no children, or any other persons, rode or jumped on or off the water truck while in use. 
[4]
The event occurred on the 28 April 2016, The charge was first called in this Court on 22 June 2017. You entered a guilty plea on 20 July 2017. I accept that that is at the first reasonable opportunity. 
[5]
The summary is accepted by the defence. Rather than risk my voice now, I trust I will be forgiven for not reading the summary, but I direct that the summary be typed into my sentencing notes. 
“BACKGROUND: 
Parties 
(a)
Mr Philip Benjamin Burrows, trading as Philip Burrows Racing Stables (‘the Defendant’) trains horses at a property he leases at 1 McIntoshs Road, Fernside, Rangiora (‘the property’). The Defendant resides at 23 McIntoshs Road. 
(b)
… ) is the victim in this matter. The … is a friend of the Defendant's son. … was 10 years old at the time of the incident. 
The environment 
(c)
The property is situated next to the Defendant's residence. The Defendant's residence is owned by a partnership, of which the Defendant is a partner. 
(d)
The property is a purpose built horse training facility. The stables and training tracks are located on this property. The inside sand trotting track is used for low speed training work, the outside track which consist of grit, is used for faster training. Both tracks are surrounded by a fence. The accident occurred on the back straight of the outside track. 
(e)
The width of the outside track was measured at 6.40 metres. The truck does not spray water the full width of the track and it would take three laps of the track to fully wet it. The accident occurred on the second lap of wetting the track down. 
The vehicle 
(f)
The vehicle involved in the incident is a Ford D 1311 Custom, truck, registration IJ3233 (‘the truck’). 
(g)
The truck is owned by the land owner and is used at the property by the Defendant. 
(h)
The truck is a two axle truck fitted with a water tank which had an approximate Gross Vehicle Mass (‘GVM’) of 14,000 kg. On the day of the accident the truck was weighed by the Police CVIU. The truck weighed 5930 kg. 
The Incident: 
(i)
On 28 April 2016, … was at the Defendant's home playing with the Defendant's son. 
(j)
Around midday, after having lunch at home the Defendant was going back to work to wet down and grade the outside track. 
(k)
The boys wanted to go with the Defendant, and the Defendant agreed. The Defendant and the boys then went to the stables. 
(l)
The Defendant got into the truck and drove down to the river to fill it with water. The boys were riding on the outside of the truck. It took about 10 minutes to fill the water tank at the river and then the Defendant drove back to the track with the boys. 
(m)
When the Defendant got back to the track, he stopped the truck, got out and turned the water pump on, opened the valves and jumped back in the truck. He then drove around the track anti-clockwise wetting it down while allowing the boys to ride on the outside of the truck. 
(n)
The truck was travelling at a slow speed. The Defendant saw the boys off the truck running in the water at times, they would then jump back on the truck. 
(o)
When the boys were on the truck they would ride either on the rails on the side of the truck or on the platform at the back. 
(p)
On the second lap of the track, on the back straight, the Defendant felt the truck drive over a bump, he looked back in his mirror and saw … lying on the track on his side. 
(q)
The Defendant pulled to the left and stopped the truck, went back and turned the water valve off and went to where … was lying. … mid-section had been run over by the right rear wheels of the truck. 
(r)
The Defendant called 111 and stayed with … to keep him breathing and calm. The ambulance arrived and arranged for … to be immediately airlifted to Christchurch Hospital. 
(s)
… was admitted to hospital and required ICU admission with intubation and NG insertion. That day he was operated on with a laparotomy and repair of left diaphragmatic rupture, given IV antibiotics and a right chest drain was inserted. … was extubated on 3rd May 2016. 
(t)
… was discharged from hospital on 29th May 2016. 
(u)
… suffered multi-trauma injuries. His injuries included fractures to his traverse lumbar, sacral alar, pelvis and ribs. He also suffered a collapsed lung, diaphragmatic hernia and a renal laceration. 
EXPOSURE TO RISK OF DEATH OR SERIOUS INJURY: 
(v)
The Defendant exposed passengers travelling on the outside of the truck to the risk of falling and being run over. 
(w)
The hazards associated with riding on the outside of a vehicle are well-known. The risk of serious injury or death to children around agricultural work is also well-known. 
STANDARDS AND GUIDELINES: 
(x)
There is no specific guidance for this particular activity; however, the following guidance is relevant. 
(y)
WorkSafe's Best Practice Guidelines Safe use of tractors on farms states under the heading, Passengers: 
(i)
‘Do not carry passengers on tractors without instructor seats, roll over protective structures and safety belts.’ 
(ii)
‘Do not carry passengers on tractor-mounted implements or trailers that are not designed to carry people.’ 
(z)
WorkSafe's Good Practice Guidelines Safe use of self-propelled agricultural plant, states: 
(i)
‘Never jump on or off a moving tractor’ 
(ii)
‘If you're leaving the machine to do something else, shut the engine off’ 
(aa)
The Harness Racing New Zealand website has general health and safety advice and information including a document titled Impact of Health and Safety Reforms on Trainers, this document lists the relevant duties for trainers as PCBU's under HSWA, including the duty to ensure the health and safety of other persons. 
THE INVESTIGATION: 
(bb)
WorkSafe was notified of the incident on by the Police on 28 April 2016 and began an investigation. 
(cc)
The truck was inspected on Friday, 29 April 2016 by Kenneth Stone of the Police CVIU. The truck was assessed as not being in a roadworthy condition. However, according to the Police, the truck's un-roadworthiness is not believed to be a factor in the accident. 
(dd)
When interviewed by WorkSafe, the Defendant explained why he let the boys ride on the truck: 
(i)
‘Well, I didn't really have a reason why, but I just guess I didn't have a reason why not. I thought, you know, boys will be boys and I just didn't think … didn't think this would happen, and not in a million years.’ 
(ee)
The Defendant did not consider that health and safety principles applied to children because they were not employees. 
(ff)
The Defendant did not consider the likelihood of the risk of a person being run over. 
(gg)
The Defendant estimated that over a period of two to three years the boys had ridden on the truck about 10 to 12 times. 
FAILURE TO ENSURE HEALTH AND SAFETY: 
(hh)
As a PCBU, the Defendant had a duty to ensure, so far as was reasonably practicable, the health and safety of other persons was not put at risk from work carried out as part of the business or undertaking, pursuant to s 36(2) Health and Safety at Work Act 2015. 
(ii)
The Defendant failed to ensure the health and safety of other persons was not put at risk as it was reasonably practicable to have: 
(i)
Ensured no children, or any other persons, rode or jumped on or off the water truck while it was in use. 
THE DEFENDANT: 
(jj)
The Prosecutor is not currently aware of any previous relevant convictions. ”
[6]
You have filed an affidavit that adds some information. You say that you were not driving any faster than walking pace. You suggest that … must have been running alongside the truck and fallen under the wheels. There is nothing in the material provided to confirm this. However, you certainly knew that the boys were getting on and off the truck and were in close proximity to it. 
[7]
Your affidavit deals with your financial position. I will come to that when dealing with reparation. 
[8]
You wished to engage in the restorative justice process. The victims did not, preferring to rely on their victim impact statements. 
[9]
I note the contents of the victim impact statements. It is not necessary to refer to their contents and I shall not do so to preserve their privacy. It is sufficient that I acknowledge that the incident had a severe physical impact upon … from which he has made a remarkable but incomplete recovery. This incident has had, and will continue to have for some time, a severe emotional impact on … and his parents, … , and also, I think, on his siblings. 
[10]
You are a first offender. You have provided a number of testimonials as to your character. They speak as to your good character as a family man and as a businessman. You are described as reliable, hardworking, trustworthy and reliable, a man of integrity and of high reputation in the community. 
[11]
I take into account the prosecution submissions and the defence submissions. Much of those submissions were directed towards the imposition of a fine and for reasons to become apparent, those submissions now need not to be analysed in detail and responded to by the Court. 
[12]
The especially relevant purposes of sentencing are the needs to denounce your offending, to hold you to account, to deter you personally from offending and to deter others from such offending and to rehabilitate you. I make emphasis of those purposes of sentencing because it continues to be the case that personal injuries are caused to people in these sorts of situations when it clearly ought not to have done and deterrence continues, unfortunately, to be a real factor in sentencing. 
[13]
In your affidavit, you candidly say that, from time to time you let the children ride on the truck as it drove along and you did so without giving a second thought to whether such an accident might happen. You say that, in hindsight, you ought not to have allowed them to do so. Therein lies your culpability. 
[14]
To allow the victim and your son to ride on the truck as they did and to jump on and off, effectively unsupervised, was fraught with obvious risk. It reveals on your part an attitude towards safety at work in general and towards children in particular that ought long ago to have been eliminated. Your attitude must be condemned as grossly irresponsible. 
[15]
You took risks with the lives of the boys that you blatantly ought not to have done. If you did not recognise the risk, then you were blind to it. You did not understand what boys may do and you have no sensible appreciation of what might happen whether as a result of a slip or miscalculation or skylarking. Frankly, I can hardly believe that anyone with your background in your situation could have been so stupid. 
[16]
Comparison with other cases is unhelpful. You had full control of the situation. The risks were obvious. You took them or were culpably blind to them. In my assessment, you have a high level of culpability. 
[17]
As to your means, for the year ended 31 March 2017 your business ran at a small loss. Your business assets have a depreciated book value of $45,000 but that may not be their true market value. Your business and your future income depends on them and thus your ability to pay reparation. 
[18]
The equity in your home is $70,000, which you share with your partner. You have personal debts of about $23,000. That means that your personal net worth is about $12,000, aside from the doubtful value of your business assets. For practical purposes, you do not have accessible resources to pay reparation, aside from the $2000 paid into your solicitor's trust account for reparation. 
[19]
Your counsel suggests that you be ordered to pay $25,000 for reparation, of which $2000 would come from the trust account and $23,000 would be paid off over time. I agree in principle, on the basis that $5,000 per annum or thereabouts is as much as you could be expected to find from your income and four to five years is the appropriate period, as indicated by appellate decisions. That takes into account, of course, your potential earnings, rather than your earnings indicated by the recent reality of your accounts. 
[20]
The outcome is that you are ordered to pay $25,000 to … as reparation for emotional harm, $2000 forthwith and $23,000 by monthly instalments of $400. The reparation is to be paid to the registrar in the first instance and then to a trust account to be established by … as trustees. A trust deed is to be submitted to the Registrar for approval. 
[21]
The trust monies are to be held until … is, I suggest, 20 with trustees being able to make advances for his education and other appropriate purposes. I think any competent conveyancing lawyer will be able to attend to that in short order. If there is a problem with the information in this direction, I reserve leave to apply. 
[22]
You are also to pay reparation to … for $226 for the cost of the carparking at the hospital, the only financial losses claimed. You do not have the resources for me to order reparation for the serious emotional harm they suffered as a result of their son's injuries, 
[23]
The only permissible penalty I can impose is a fine. I cannot sentence you to community work, for example. I am required to take your means into account. As I consider that it would otherwise be appropriate to impose reparation and a fine, but as it appears that you have, or will have, the means to pay reparation or a fine but not both, I am required by s 14(2) Sentencing Act 2002 to sentence you to pay reparation. Furthermore, as I am satisfied that you do not have the means to pay a fine, I decide pursuant to s 14(1) Sentencing Act 2002 not to impose a fine. It is unnecessary, therefore, for me to undertake an assessment of what fine might have been appropriate. However, the general approach suggested by the prosecutor seems unexceptional. 
[24]
Quite apart from the lack of purpose of calculating a fine when none is to be imposed (because the overriding consideration that you do not have the means to pay it) for the purposes of sentencing precedent, I would be most reluctant to undertake any assessment that is not going to be imposed and be the subject of possible appeal, on new legislation. I appreciate that the prosecution may prefer to have my views to use as a sentencing precedent, but I think it would be entirely inappropriate to do so in this situation. 
[25]
[After conferring with counsel:] Reparation is also ordered in the sum of $500 to the parents as a contribution to the costs of the trust deed. 
[26]
Leave is reserved to apply for further directions [as to the trust] but, at least without the defendant's consent, I could not add to the [defendant's] financial burden. 

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