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OSH Tracker

South Pacific Meats Ltd v New Zealand Meat Workers Union Inc (HC, 19/09/12)

OSH Tracker

Defendant:
South Pacific Meats
South Pacific Meats Ltd lost an appeal against its conviction under s6 after an employee lost the tip of his thumb while using  shank saw. It had been fined $23,000 and ordered to pay $5000 to the injured man. The company had appealed on the basis that the employee had defied instructions not to stack meat on the saw’s bench top, and that he was impaired by cannabis. However Justice Mallon agreed with the lower court’s decision that the training and supervision of the employee had been inadequate, that a table should have been provided for him to stack meat on, and that his cannabis impairment did not exonerate the company from its responsibilities (High Court, Invercargill, 19 September). 
Industry:
Manufacturing
Sub-Industry:
Food, Beverage and Tobacco
Risk:
Machinery (trapped, crushed, cuts)
Harm:
Injury
Penalty Amount:
$0.00
Reparation Amount:
$0.00
Appeared in Safeguard issue 136

Judgment Text

JUDGMENT OF MALLON J 
Mallon J
Introduction 
[1]
Mr Kingi accidentally amputated the tip of his right thumb when operating a shank saw at a meat processing plant. The New Zealand Meat Workers' Union, on behalf of Mr Kingi, initiated a prosecution against his employer South Pacific Meats Limited (SPM). The prosecution was brought under s 6 and s 50(1)(a) of the Health and Safety in Employment Act 1992, for failing to take all practicable steps to ensure the safety of employees at work. It was brought by the Union after the Department of Labour advised that it would not be taking enforcement action. After a defended hearing in the District Court, SPM was convicted of the offence. It was ordered to pay reparation of $5,000 and a fine of $23,000. 
[2]
SPM appeals against its conviction. At the time of the accident, Mr Kingi had stacked legs of meat on the shank saw bench top contrary to the instructions he had been given. He was also, in the words he used to his neighbour after the accident, “stoned as a mother fucker”. The appeal is brought on the basis that the instruction given not to stack the meat on the bench top complied with SPM's obligation to take all practicable steps to ensure Mr Kingi's safety, and the accident was entirely the fault of Mr Kingi in not following that instruction and because he was impaired from smoking cannabis. 
The facts 
[3]
SPM operates a meat processing plant at Awarua. It specialises in processing lamb and ewe carcasses. The plant has a boning room. In that room there is a main conveyor belt on which the meat is moved. Around the conveyor belt there are three band saws: the main saw, the shoulder saw and the shank saw. 
The shank saw 
[4]
The shank saw is a thin vertical saw. It has a small but jagged cutting blade which moves at a rapid pace. It is attached to a small table (the saw bench top) which sits alongside the conveyor belt. The shank saw is used to cut the shank of the lamb or ewe. When the leg comes down the conveyor belt the shank saw operator lifts the leg off the belt, makes a single cut with the shank saw to remove the knuckle joint, and then returns the cut meat to the conveyor belt. The evidence was that the average shank saw operator did about nine cuts per minute, but a competent saw man would comfortably be able to achieve 30 cuts per minute. Once the cut rate on the shank saw reached 22 cuts per minute there was an alert. SPM's maximum safe operating level was 28 cuts per minute. 
[5]
The meat comes down the conveyor belt at a rate that is dependent on the boners' work rate. Mr Bisschop, an employee in the boning room, said that there could be a 5 or 6 second gap, then all of a sudden a pile of 10 to 15 legs. Mr Hamilton, who was the production manager at the time of the accident, did not accept that there would be clumps of legs arriving at the same time, but did accept that there could be extra legs if one of the boners was a bit slower than others. Mr Madden, the acting supervisor in the boning room at the time of the accident, said it would be unusual for clumps of legs to come down the belt. The Judge accepted that, although this may not have been the norm, clumps of legs could come down the belt on occasion. 
Instruction 
[6]
The saw bench top is quite small. At SPM, shank saw operators were instructed not to stack legs on the saw bench if they could not keep up with the product coming along the conveyor belt. The reason that meat was not to be stacked on the saw bench was that it could then get in the way of the safe operation of the saw. It was intended that a packer at the bottom end of the conveyor belt was to bring the meat back to be put through the shank saw when the product coming down the belt slowed or stopped. There was, however, no-one specifically assigned to bring the meat back to the shank saw operator. 
[7]
There was evidence from Mr Carran, a branch president of the Union, that following the instruction to let product go created tensions. This was because other workers further down the chain had to retrieve the meat and take it back to the shank saw operator. He said that other workers resented doing that and this created pressure on the shank saw operator if he could not keep up. Similarly, Mr Churchman, who was a former Senior Health and Safety Inspector, said that an employer should anticipate that a new employee might not follow instructions and might attempt to take shortcuts when falling behind. He said that allowing meat to go past and having someone bringing it back was inefficient and created the temptation to stack meat on the saw bench. 
[8]
Mr Hamilton disagreed that there was any form of pressure from the packers on shank saw operators to keep up. The evidence from Mr Carran and Mr Churchman was, however, confirmed by the evidence from employees of SPM. One of those employees was Ms McCorkindale. She confirmed that, even though it was not safe to stack meat on the saw bench and they were told not to do this, she was aware that some employees did this when they got behind. Similarly Mr Bisschop said that, although they were told that if they could not keep up they were to let the meat go past or to put it on a table on the other side of the shank saw if the table was there, sometimes there was no choice but to stack legs on the saw bench top. That is because otherwise, the operator would have to go back at the end of the run to do the legs, and they then risked getting off-side with the packers because this would cut into their “smoko time”. Mr Madden also acknowledged that a trainee employee might be reluctant to let meat go past on the belt for fear that they would be seen as not coping with the job and removed from it. He accepted that a trainee saw man might be tempted instead to stack meat on the saw bench but said that they were trained not to do that. 
A table 
[9]
An alternative to leaving meat on the conveyor belt was to have another small table sitting alongside the saw bench. The product could then be safely stacked on that table if the operator could not keep up with the meat coming down the belt. When there was a gap in the supply of meat coming down the belt, the operator could then catch up. Sometimes there was such a table alongside the shank saw at SPM, but this was not the standard practice. 
[10]
SPM witnesses had differing views about whether it was necessary to have the table. Mr Tait, the night shift production supervisor, said that it was common for trainee saw men to need a table beside the shank saw. Mr Hampton agreed that a table could have been put alongside the shank saw and it now had been. Mr Madden said that if an operator needed a table they could get one, but that it should not be necessary as the shank saw was the easiest job in the room. Similar to Mr Madden, Mr Hamilton did not agree that a table was necessary. He said that if it was there, it would tempt an operator under pressure to take meat from the belt and put it through the saw, rather than letting it go down the belt as was the instruction. 
Skill required 
[11]
There was evidence about the level of skill required to operate the shank saw from Mr Carran, Mr Tait, Mr Hamilton and Mr Hampton. The general tenor of that evidence was that the shank saw was easier than the other saws in that there were less cuts to make than the others, and someone who was skilled on the main saw (where there were three cuts to make) or the shoulder saw (where there was five cuts to make) would be able to operate the shank saw. Because the shank saw had the lowest production rate of any of the band saws, it was commonly used as a training ground for saw men before they moved on to the more difficult, complex cuts. The Judge accepted that the shank saw was the easiest to operate and had a slower cutting rate than the other saws. There was varying evidence about whether the shank saw was more or less dangerous than the other saws. The Judge accepted it was equally as dangerous as the other two saws. 
Training 
[12]
SPM had a buddy system to train saw operators. This involved new saw men being teamed up with competent saw men. This enabled individuals to be monitored and observed. As some picked it up quicker than others, it would be left to the supervisor to decide the level of monitoring and supervision required. By way of example, the training for Mr Bisschop, who had come to SPM with a number of years experience as a saw man with other companies, consisted of a week's supervision from Mr Madden on the main, side and shank saws. 
[13]
There was some written material available. There was evidence that SPM had a band saw operator “training module” in place as at January 2010. Mr Madden was unaware that SPM had this training module available. SPM also had hazard control written information (see below at [23]) but it was not uncommon for the saw operators not to receive this. This was because SPM relied on the buddy system to teach a new operator. 
Mr Kingi's induction 
[14]
Mr Kingi was an employee of SPM. He commenced his employment in November 2009. On his first day he went through an induction process. That did not involve any training on the saws in the boning room. It did involve providing Mr Kingi with information on various topics, including health and safety. He was then asked to complete an induction checklist and a questionnaire. He did not complete the questionnaire in full. Questions left unanswered included “What should you do if you come across a hazardous situation?” Mr Hamilton accepted that SPM should have followed this up with Mr Kingi to make sure it was completed. Ms Collins, the compliance manager at SPM at the time, said that it was just a tool to prompt discussion with the new employee. She did accept that the questions left unanswered showed that Mr Kingi had not absorbed some of the information he had been given, and that he was perhaps slower than others on the uptake of information and might need more than average training and supervision. 
[15]
After the induction, Mr Kingi worked in the chiller room. In December 2009 he suffered a back injury. He was then off work and receiving accident compensation for that back injury. 
Mr Kingi returns to work 
[16]
Mr Kingi returned to work after his back injury on 6 January 2010. Employees at SPM worked ten hour shifts, three days on and three days off. Mr Kingi worked ten hour days on 6, 7 and 8 January 2010. He had the next three days off. He was back on shift on 12 and 13 January. The accident occurred during the 13 January 2010 shift. 
[17]
In the course of these January shifts, Mr Kingi was asked to work on the saws. According to Mr Kingi's evidence Mr Madden first showed him how to use the shank saw on 9 January 2010 (though it appears that this must have been on 7 or 8 January 2010). He said that Mr Madden showed him what to do for about two to five minutes, then watched Mr Kingi for a short time, then left Mr Kingi to work on the shank saw for a further eight hours. At this time there was a table alongside the saw bench which Mr Kingi was able to use when he could not keep up. Mr Bisschop agreed that Mr Madden gave Mr Kingi instructions on how to use the shank saw for about five minutes before leaving the boning room for the day, but thought this was on 13 January and not 9 January 2010. 
12 January 2010 
[18]
Mr Kingi's evidence was that at the beginning of his shift on 12 January 2010 Mr Madden asked Mr Bisschop to show Mr Kingi how to use the main saw. After about an hour, Mr Madden took Mr Bisschop away and Mr Kingi then worked on the main saw for the rest of his ten hour shift. Mr Bisschop's evidence was similar in that he agreed that Mr Madden handed Mr Kingi over to Mr Bisschop for training on the main saw on 12 January 2010, and that he worked with him for about an hour before Mr Madden moved Mr Bisschop to another saw. He thought that this was Mr Kingi's first day on the saw, and that Mr Kingi had received about an hour's training with Mr Madden before Mr Madden handed Mr Kingi over to him. Mr Bisschop said that he checked on Mr Kingi every 15 to 20 minutes to make sure Mr Kingi was alright. Mr Madden gave different evidence about the level of training Mr Kingi had received but the Judge accepted Mr Kingi and Mr Bisschop's evidence about this. 
13 January 2010 
[19]
The next day, 13 January 2010, Mr Kingi reported to Mr Madden that he was feeling sore and cramping up and asked that he not be put on the main saw. Mr Madden told him to “harden up”. Mr Bisschop was on the side saw. Mr Kingi asked him if he would swap and he agreed. Another employee then said that Mr Madden wanted Mr Kingi to work on the shank saw. Mr Kingi started on the shank saw at about 4:45pm. When Mr Kingi got to the shank saw, meat was already coming down the conveyor belt. He had to work quickly and there was no table to stack the legs when he could not keep up. Although he knew that SPM's rule was to let the product go by, he stacked the legs on the side of the saw bench top when he could not keep up. 
[20]
Ms McCorkindale was working in the boning room on the “pre-trim” during Mr Kingi's shift. She kept looking over at Mr Kingi to see if he was alright. She noticed that he was struggling to keep up and had some legs built up on the side. She knew that Mr Kingi should not be doing this, but she could not go over to speak to him because she could not leave her own position. She said that there were supervisors and leading hands in the room, but no-one intervened. Mr Madden gave different evidence about the level of supervision in the boning room. He recorded in Mr Kingi's training record that Mr Kingi was under “constant watch” (meaning a foreman was observing Mr Kingi a majority of the time). He also said that he checked Mr Kingi three or four times before the accident to ensure that he was not being rushed. He said there were no issues. The Judge did not accept Mr Madden's evidence about this. 
[21]
The accident occurred at about 6:00pm. After the accident Mr Kingi acknowledged to Mr Madden and Mr Tait that he knew he was not meant to put legs on the saw bench. He said he was under a bit of pressure and he did not know why he did not let the meat go. The Judge found that Mr Kingi knew that putting the legs on the saw bench was dangerous and the wrong thing to do. 
Cannabis use 
[22]
The evidence of Mr Kingi's cannabis use came from his next door neighbour. He gave evidence that after the accident, Mr Kingi told him that he was glad he was not drug tested because he was “stoned as a motherfucker”. He said that Mr Kingi had told him that he had a session on cannabis before he went into work that night. He also said that Mr Kingi smoked cannabis almost every day. Mr Kingi and his partner denied these claims. However the District Court Judge accepted the neighbour's evidence. 
Changes after accident 
[23]
SPM had a “hazard control sheet — main saw” sheet which it amended after Mr Kingi's accident. The version of the hazard control sheet in evidence at the District Court hearing was the version as at 22 January 2010 (i.e. after the accident). This sheet referred to the shank saw. It described the hazard as “significant”. It identified the potential injuries associated with the hazard as being amputation, laceration and strains/sprains. It set out contributing factors, which included “failure to follow instructions”. It then listed control measures. The evidence was that, after Mr Kingi's accident, those control measures were amended to include the following: 
“•
Ensure that all equipment is in place before starting operation. 
 
Shank saw Operator must never rush, excess product must be allowed to go down the belt, it will be retrieved at the packing end. 
Shank saw operator must never stack shanks on the saw top if he/she cannot keep up, this will affect his/her technique & can cause serious injury. ”
[24]
There was also evidence that, after the accident, SPM instructed supervisors to be more thorough with the way they trained people. SPM also issued a training booklet: “Band Saw Operator Training Workbook” for employees. It had been prepared some time ago in draft and been given to the Department of Labour for review. It was finalised in February 2010 but then re-issued on 16 March 2010 after an incident on 15 March 2010. According to Mr Bisschop's evidence, Mr Madden told employees when distributing it, that it was “to save our butts because of all these people knocking their fingers off at the moment”
[25]
The booklet set out information on the saws in the boning room which the trainee was to work through with his or her trainer. It contained practical assessment tests which were to be signed off by the trainer and a “skill check” set of questions for the trainee to complete. It set out hazards which, in relation to band saws, included “Always put personal safety before speed of operation”. It also gave some examples of hazards and how to deal with them. One example was as follows: 
There may be peer pressure from the rest of the workers to speed up 
WHAT TO DO 
This should be ignored. If it continues, your supervisor should be notified as this pressure may cause you to speed up to an unsafe pace causing you to seriously injure yourself. ”
[26]
SPM also introduced compulsory drug testing in March 2010. Initially, when testing saw men in the boning room following a serious harm accident, over 60 per cent of the operators returned a positive drug test result for THC or cannabis. Around fifteen to eighteen months later, the positive rates were running at about one to two per cent. It has also introduced a new, safer shank saw once that technology became available. 
Statutory provisions 
[27]
The charge brought against that SPM was that: 
“BEING, an employer, it failed to take all practicable steps to ensure the safety of an employee, namely HENRY RICHMOND KINGI, while at work, in that it failed to take all practicable steps to ensure that HENRY RICHMOND KINGI was not exposed to hazards arising from the operation of a ‘side-saw’ or ‘shank-saw’ in this place of work. ”
[28]
That was a charge under s 6(1)(d) of the Health and Safety in Employment Act, which is as follows: 
“Every employer shall take all practicable steps to ensure the safety of employees while at work; and in particular shall take all practicable steps to — 
 
(d)
Ensure that while at work employees are not exposed to hazards arising out of the arrangement, disposal, manipulation, organisation, processing, storage, transport, working, or use of things — 
(i)
In their place of work 
 ”
[29]
Section 2A of the Act defines what is meant by “all practicable steps” as follows: 
“(1)
In this Act, all practicable steps, in relation to achieving any result in any circumstances, means all steps to achieve the result that it is reasonably practicable to take in the circumstances, having regard to— 
(a)
the nature and severity of the harm that may be suffered if the result is not achieved; and 
(b)
the current state of knowledge about the likelihood that harm of that nature and severity will be suffered if the result is not achieved; and 
(c)
the current state of knowledge about harm of that nature; and 
(d)
the current state of knowledge about the means available to achieve the result, and about the likely efficacy of each of those means; and 
(e)
the availability and cost of each of those means. 
(2)
To avoid doubt, a person required by this Act to take all practicable steps is required to take those steps only in respect of circumstances that the person knows or ought reasonably to know about. ”
[30]
Section 19 of the Act provides that: 
“Every employee shall take all practical steps to ensure … the employee's safety while at work …  ”
SPM's breach 
Training 
[31]
The District Court Judge accepted the evidence of Mr Kingi and Mr Bisschop as to the training Mr Kingi had received on the main and shank saws. That is, that Mr Kingi had received no training on saws prior to being asked to work on them in January 2010, and that at the time of the accident Mr Kingi had worked between 20 and 25 hours on the main saw and shank saw combined. The Judge also found that Mr Kingi had undertaken no formal training programme and was not given any written training material. In the Judge's words Mr Kingi was “a very inexperienced saw man”
[32]
The District Court Judge was satisfied to the beyond reasonable doubt standard that SPM failed to take all reasonable steps to ensure the safety of Mr Kingi in respect of training. The Judge said that adequate training of new employees with no prior experience of operating band saws was a fundamental practicable step that an employer is required to take. The Judge considered that SPM's training of Mr Kingi on the main and shank saws was not adequate. 
[33]
The Judge summarised his reasons for that conclusion as follows: 
“A practicable step that the defendant should have taken, but did not take, was to improve the training of Henry Kingi on the saws. The optimum training was no doubt that which was suggested by Mr Carran. However, at least Henry Kingi should have been required to undertake the band saw training module which should have been supported by the provision of written materials such as the band saw operator training book, and the hazard control sheet which the defendant has now produced (Exhibits 10 and 11). The written materials would have enabled the defendant to test all trainee saw men to make sure they had absorbed the information verbally conveyed and had an appropriate level of understanding. That coupled with the ‘buddy system’ properly implemented, would have provided Henry Kingi with adequate training on the saws. The training database should also have been regularly updated in relation to each employee. ”
[34]
SPM challenges this conclusion. It submits that the shank saw is the easiest to operate and therefore required little in the way of training. It submits that from the training Mr Kingi received, he knew how to operate the shank saw and that he was not to stack meat on the bench top. It submits that the accident occurred not because Mr Kingi did not know what to do, but because Mr Kingi disobeyed the instruction not to stack meat and because he was impaired by cannabis. It submits that there was nothing more it could reasonably practicably do to train Mr Kingi on the action that caused the accident. 
[35]
SPM does not challenge the Judge's findings as to the training Mr Kingi had received. Mr Hamilton accepted that if Mr Kingi's training on the shank saw was as per his evidence, then it was unacceptable. SPM is therefore on difficult ground in contending that SPM had taken all practicable steps in relation to training. In effect SPM's submission is that it is not the minimal training and absence of proper supervision that was the problem, when Mr Kingi was prepared to disobey an instruction and turn up to work under the influence of cannabis. 
[36]
I do not accept this submission. The taking of all reasonably practicable steps included not just showing Mr Kingi how to operate the shank saw and telling him not to stack the meat on the saw bench. As the District Court Judge found, Mr Kingi's induction process (refer [14] above) had shown that he might need more than average training and supervision. But irrespective of that, Mr Kingi had received very little training and was very inexperienced at the time of the accident. The shank saw might have been easier to operate than the other saws but it is to be expected that new shank saw operators may be slower than an experienced one. The evidence supported this (refer [10] above). The problem with the minimal level of training Mr Kingi received combined with his lack of experience, was that he might get behind and might not fully appreciate the importance of not stacking the meat on the saw bench even if he was behind. It was foreseeable that Mr Kingi, as an inexperienced saw man would succumb to the pressure to keep up and would therefore disobey the instruction if the importance of not stacking the meat had not been emphasised to him. 
[37]
Reasonably practicable steps therefore included training which emphasised the importance of not stacking the meat on the saw bench even if under pressure because of the danger to his safety that this entailed. As the Judge found, that training should have included Mr Kingi being required to undertake SPM's band saw operator training module, supported by the provision of written materials and hazard control sheet. Together these would have provided a check for SPM that Mr Kingi was competent at operating the shank saw, and that he understood the importance of not stacking meat on the saw bench even if he was falling behind. 
Supervision 
[38]
The District Court Judge was also satisfied to the beyond reasonable doubt standard that SPM failed to take all practicable steps to ensure the safety of Mr Kingi in respect of supervision. The Judge said that it should have been obvious to Mr Madden that he would need to closely monitor Mr Kingi's performance. This was because Mr Kingi was an inexperienced saw man, according to Mr Madden's evidence Mr Kingi was meant to be under “constant watch”, Mr Kingi was feeling sore as a result of his previous 10 hour day on the main saw without a buddy and without rotation, and Mr Kingi had told Mr Madden he was sore and did not want to work on the main saw. 
[39]
The Judge rejected Mr Madden's evidence that he checked on Mr Kingi three or four times on 13 January 2010. The Judge also rejected that Mr Kingi was under the constant watch of a foreman, because, if that had been the case, the foreman would have noticed that Mr Kingi was not keeping up, did not have a table beside him even though he was a trainee saw man, and was stacking legs on the saw bench. 
[40]
The Judge concluded: 
“That the supervision of Henry Kingi on the shank saw on 13 January 2010 was not adequate. A practicable step the defendant should have taken, but did not take, was to ensure that Henry Kingi was kept under ‘constant watch’ generally, but on 13 January 2010 his supervisor should have more closely monitored how he was coping on the shank saw in the circumstances. ”
[41]
SPM does not challenge the Judge's findings of fact. It submits that it was not a reasonably practicable step for Mr Madden or any other supervisor to stand next to or to constantly watch Mr Kingi through his shift on the shank saw. SPM submits that Mr Kingi had worked a full day on the more difficult main saw the previous day without problem. During that day Mr Bisschop had checked on him every 15-20 minutes. When he reported that he was sore the next day he was put on the less demanding shank saw. In the circumstances it is said that the accident occurred not because of any deficiencies in the supervision of Mr Kingi, but because Mr Kingi failed to follow instructions. 
[42]
The “constant watch” expression came from Mr Madden. He had recorded on Mr Kingi's training record that Mr Kingi was “on constant watch from the foreman”, which he explained as being observed the majority of the time. The Judge found that this had not occurred on 13 January 2010. It does not matter that there had been no issue the day before. For the reasons stated by the Judge Mr Kingi should have been more closely monitored on 13 January 2010. Had there been closer monitoring, it is likely that someone would have seen that Mr Kingi was getting behind, did not have a table and/or was stacking meat on the bench top contrary to instructions. Ms McCorkindale had noticed this but was not in a position to intervene. A supervisor would have been able to do so. The Judge's conclusion, that there was a failure to take all practicable steps because the supervision was inadequate, was open to him. 
The table 
[43]
The District Court Judge was also satisfied to the beyond reasonable doubt standard that SPM failed to take all practicable steps to ensure the safety of Mr Kingi by failing to provide a table. The Judge considered that a trainee saw operator would not want to get behind or give the impression to Mr Madden that he was not keeping up with the workflow. The Judge referred to Mr Madden's evidence that a person would probably be removed from the job if he needed the table. The Judge referred to Mr Tait's evidence that trainees commonly had the table available to stack legs on. He concluded that a conscientious employer would have appreciated the risk that such an employee might stack product on the top of the saw, especially if there was no table, so that he could catch up quickly if the opportunity arose. 
[44]
The Judge concluded: 
“That a table should have been provided by the shank saw for Henry Kingi, a trainee sawman. That would have reduced the likelihood, if Henry Kingi got behind, that he would have stacked meat on the saw bench. ”

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