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Safeguard OSH Solutions - Thomson Reuters

Safeguard OSH Solutions - Thomson Reuters



OSH Tracker

Transmission Equipment Maintenance Company Ltd v Department of Labour (HC, 07/03/06)

Sentencing Tracker

Principal Offences:
Failing to take practical steps to ensure employee adequately trained in safe use of plant (s 13(b) and s 59(1)(a) Health and Safety in Employment Act 1992)
Plea:
Not Guilty
Non-Custodial Sentences:
$15,000 reparation, reduced from $20,000 on appeal
$12,500 fine, increased form $5,000 on appeal
Appeal:
Non-Custodial Sentence Increased
Aggravating Factors:
Previous safety warnings had been given
Obvious hazard
No supervisor with new employee
Serious harm caused to victim
Mitigating Factors:
Co-operation
Lack of previous convictions
Remedial action taken to prevent similar injuries
Previous Convictions:
None

OSH Tracker

Defendant:
Transmission Equipment Maintenance Co Ltd
A power line maintenance company successfully appealed a $20,000 award of reparations to an employee whose arm was crushed in a winch, but had its total penalty increased when the High Court also overturned the $5000 fine set by the District Court. 
Justice John Priestley fined Transmission Equipment Maintenance Co Ltd $12,500 under s13(b) of the HSE Act and ordered it to pay $15,000 to the injured worker, increasing its total penalty by $2500 (High Court Rotorua, March 7 2006). 
The case arose after a teenage employee with only a few weeks experience caught his arm in a motorcycle-mounted winch while lifting equipment to transmission tower workers. He was working without supervision, in windy conditions, and had not been appropriately trained. 
The Department of Labour acknowledged the original reparations order was large, but also asked the court to revisit the fine. Justice Priestley expressed surprise at the small fine as the company had received previous warnings, was operating in a hazardous industry, and had allowed an inexperienced worker to use obviously hazardous equipment in difficult conditions. The original fine might have been appropriate, he said, if there had been an offer of amends to the victim, but as this had not happened, it was too low. 
Industry:
Electricity, Gas and Water Supply
Sub-Industry:
Electricity and Gas Supply
Risk:
Machinery (trapped, crushed, cuts)
Harm:
Injury
Penalty Amount:
$27500.00
Reparation Amount:
$15000.00
Appeared in Safeguard issue 97

Judgment Text

ORAL JUDGMENT OF PRIESTLEY J (Sentence Appeal) 
Priestley J
[1]
After a defended hearing in the Taupo District Court the appellant was convicted of an offence under s 13(b) and s 50(1)(a) of the Health and Safety in Employment Act 1992. The proved offence was failing to take practicable steps to ensure an employee was adequately trained in the safe use of plant. 
[2]
Seven months later Weir DCJ imposed sentence. This was a reparation sentence under s 12 of the Sentencing Act of $20,000 and a fine of $5,000. 
[3]
The appellant challenges that sentence on appeal. In Mr O'Brien's submission the $20,000 reparation component of the sentence was clearly excessive. 
Background 
[4]
The victim in this case, Luke Anderson, was an employee of the appellant. The appellant carries out hazardous work involving the repair and maintenance of electricity transmission towers. On the day of the accident, 30 January 2004, Luke was operating a capstan winch mounted on the back of a motorcycle. The function of that winch was to lift, by means of pulley ropes, equipment required by workers above on the transmission towers. 
[5]
During the course of the afternoon of that day Luke, who had only been on the job for a few weeks and was under 18, sustained an accident. He was working alone. A problem was observed with the ropes attached to the capstan. He reached across. His arm was trapped and drawn on to the moving capstan. He sustained compound fractures in four places and was badly injured. 
[6]
The appellant was convicted, as I have said, at the conclusion of a defended hearing. The gravamen of the charge was that the appellant had failed to recognise a hazard and put appropriate training mechanisms in place, so far as Mr Anderson was concerned, to minimise that hazard. 
[7]
For reasons which I do not quite understand and in respect of which counsel cannot assist, there was no restorative justice conference, nor was a reparation report ordered under s 33. 
[8]
The Court did, however, have before it a helpful and indeed optimistic victim impact statement from Luke himself. On the basis of medical advice and his own experience there had been a loss of strength to his right arm (his dominant arm). His arm was scarred. There was pain. There was some problem with movement. The victim impact report speaks of the sleepless nights and pain which Luke experienced, to say nothing of the memory he had of hearing his arm bones snapping as they were dragged across the winch. The report refers to problems he encountered in the sporting area, and also as an instrumentalist in his church worship group, to say nothing of his hip hop dancing. 
[9]
With assistance from his mother and whanau Luke has been able to come through the far side of this trauma. In particular he felt keenly what he saw as the stigma of having to throw himself on the mercy of WINZ to obtain an unemployment benefit. Luke now has a permanent job as a trainee linesman with an electrical reticulation company in Te Awamutu. He is in court today and seems cheerful and optimistic. 
Discussion 
[10]
Both counsel have expressed unease to me about the quantum of the $20,000 reparation award. Certainly in terms of authorities which were before the Judge the award of $20,000 seems on the high side compared with similar injuries. Ms Bayley responsibly concedes that is the case. I have been referred to a number of District Court decisions where quantum awards vary. Severe crushing of the hand for instance was met with a reparation order of $27,000 in Department of Labour v Richmond Ltd. A hand amputation brought a reparation order of $12,000 in a sawmilling accident in Department of Labour v Whittakers Sawmilling Ltd
[11]
I record at this juncture that my decision today is one that has riding with it a certain amount of pragmatism. There has been no close consideration by me of the precise detail of emotional harm, nor is there a precise reflection of that harm in a compensation figure. Rather I am considering one component only (a reparation sentence) as part and parcel of an appeal against sentence. Unusually perhaps there was no medical evidence before the Court dealing specifically with Luke's emotional harm, which is, of course, the only aspect which is properly compensable having regard to the provisions of s 32. 
[12]
That said, I confess to some mild surprise at the fine of $5,000. As is apparent from the materials before the Judge the appellant had received previous safety warnings. This was an employer operating in a hazardous industry where, in my judgment, no real distinction should be drawn between an employee working on pylons close to transmission lines and associated employees working on the ground. The capstan and winch were an obvious hazard. The working conditions that afternoon were described by the Judge as “tricky”. A strong wind was blowing. The ground was uneven. No supervisor was beside Luke. The risk for this employee and the hazard was patently obvious from the accident which occurred. The Judge found that required training to face these hazards had not been taken. Luke's arm could have been lost. These factors constitute in my judgment a significant breach deserving of a significant penalty. 
[13]
The Judge's sentencing notes are careful. He had a full appreciation of the surrounding facts having presided over the preceding defended hearing. He acknowledged in para [11] of his decision the need for some form of deterrence. He properly acknowledged too the appellant's co-operation during the investigation, the fact that remedial action had been taken to prevent similar injuries, and of course the fact that no previous convictions had been entered. 
[14]
In terms of s 14(2) of the Sentencing Act the preferable approach seems to be to consider a reparation sentence first and then move on to a fine. That was certainly the approach adopted in the District Court in Department of Labour v Ferrier Woolscours (Canterbury) Ltd (Timaru District Court, CRN 30765100701072, 29 November 2004, Judge Abbott), referred to as a two stage approach. As I made clear in my earlier decision in this Court of Department of Labour v Areva T & D Ltd (CRI 2005-463-000042, 9 November 2005) that approach, although having obvious sense to it, does not necessarily carry the imprimatur of this Court. Nor is it a binding rule that such a two step approach should be followed in every case. 
[15]
I note that the Judge, having reviewed all the relevant sentencing criteria, fixed his sentence in the reverse order. He first imposed a $5,000 fine. Secondly he ordered $20,000 reparation. The total monetary sentence thus amounted to $25,000. 
[16]
Ms Bayley submits that if I was minded to interfere with the reparation sentence I should certainly revisit the fine. Mr O'Brien for his part makes it clear that he has advised the appellant there is a jurisdictional risk that, on appeal, not only the fine but indeed the overall monetary sentence could be increased. 
[17]
Mr O'Brien informed me from the bar that in the District Court it was effectively common ground between counsel that a total monetary penalty of somewhere between $10,000 and $15,000 was appropriate. Ms Bayley, who did not appear in the lower court, has no instructions on that aspect. Such inquiries as she has made indicate some surprise on the part of the Department of Labour that a concession of that nature might have been made. 
[18]
I have expressed to counsel my reluctance not only to interfere with the overall quantum of the sentence imposed, but also to readjust their components. I have, however, sufficient information to reassess a sentence in a just way if necessary. Mr O'Brien had clear instructions, however, that the reparation sentence was excessive and should be reduced. 
[19]
The emotional harm suffered by the victim was considerable. In a somewhat stoic fashion he set out his concerns in that area in the victim impact report. It is to his credit that he has been able to get on with his life and re-enter the workforce. Nonetheless I am of the firm view that his emotional harm should be compensated. 
[20]
I am also of the view that having regard to the facts and to the Sentencing Act and s 51(A) of the Health and Safety in Employment Act factors, the $5,000 fine imposed is too low. A fine of that magnitude might well have been appropriate had there been some s 10 offer of amends. No such offer, however, was forthcoming. 
[21]
Dealing with these issues as best I can, and being disposed to err on the side of generosity so far as the reparation sentence is concerned (this was certainly the approach taken by Weir DCJ with which I am reluctant to interfere), I quash both the sentence of reparation and the fine. 
[22]
In the exercise of my statutory powers on appeal I order a sentence of reparation against the appellant of $15,000. I also impose a fine of $12,500. Thus the total sums payable by the appellant will be $2,500 above the figure from which they appealed. I have reached this conclusion not in any way to deter appeals of this sort, but because I have concerns about the quantum of the reparation order and its downstream effect on other cases. I also consider that a message needs to be sent to all employers that serious injuries resulting from breaches of the Act justify, in appropriate cases, significant penalties. 

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