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Worksafe New Zealand v Coda Operations Limited Partnership [2017] NZDC 18902 (25 August 2017)

Last Updated: 19 March 2018

EDITORIAL NOTE: CHANGES MADE TO THIS JUDGMENT APPEAR IN [SQUARE BRACKETS].


ORDER PROHIBITING PUBLICATION OF NAME(S), ADDRESS(ES), OCCUPATION(S) OR IDENTIFYING PARTICULARS OF
WITNESS/VICTIM/CONNECTED PERSON(S) PURSUANT TO S 202 CRIMINAL PROCEDURE ACT 2011.
IN THE DISTRICT COURT AT TAURANGA
CRI-2016-070-003738

WORKSAFE NEW ZEALAND PROSECUTOR

v

CODA OPERATIONS LIMITED PARTNERSHIP FIRST DEFENDANT

HAMMAR NEW ZEALAND LIMITED SECOND DEFENDANT

Hearing:
3 August 2017
Appearances:
S Elliott for the Prosecutor
M Beech and J Easton for the First Defendant G Stringer for the Second Defendant
Judgment:
25 August 2017

SENTENCING DECISION OF JUDGE P G MABEY QC

WORKSAFE NEW ZEALAND v CODA OPERATIONS LIMITED PARTNERSHIP [2017] NZDC 18902 [25

August 2017]

[1] On 14 March 2016 [the deceased] was killed when working at the Port of Tauranga. At the time of his death he was employed by the first defendant. He was operating equipment designed and supplied by the second defendant. The circumstances of his death were investigated by Worksafe New Zealand resulting in the prosecution of the first and second defendant. Both have pleaded guilty to the charge that they face. Those charges are that:

The charge is brought under ss 6 and 50(1)(a) of the Health and Safety Employment Act 1992 – the maximum penalty is a fine not exceeding

$250,000.


(b) The second defendant, Hammar New Zealand Limited (Hammar), being a person who supplies to another person plant, namely a Hammar Sweden 155 series side loader trailer registration F110C to Priority Logistics Company Limited (PLL), that can be used in a place of work, failed to take all practicable steps to ensure that the plant was designed, made and maintained so that it is safe for its intended use, in particular that Hammar New Zealand Limited failed to supply with the side loader, relevant information essential to its safe operation and maintenance including an up-to-date operating manual, accurate wiring diagrams reflecting the changes made to the electrical set up, and appropriate warning signage indicating safe zones, weight load limits and markings on the manual levers of the side loader indicating their function (CRN16070501424).

This charge in brought under ss 18A(2) and 50(1)(a) of the Health and Safety and Employment Act 1992 – the maximum penalty is a fine not exceeding $250,000.


Facts


[2] On 14 March 2016 [the deceased] was picking up a 40 foot shipping container using a side loading truck and trailer unit when the side loader tipped and crushed him between it and an adjacent shipping container.

[3] [The deceased’s] employer, Coda, conducts its business at the Port of Tauranga. [The deceased] was employed as a [occupation deleted].

[4] The [side loading truck and trailer unit] was designed to transfer shipping containers from one trailer to another as well as to and from railway carriages.

[5] The truck and trailer unit operated by [the deceased] at the time of his death had previously been supplied by the second defendant Hammar to Priority Logistics Limited, a predecessor of Coda.

[6] In January 2011 Hammar was commissioned by PLL to modify the truck and trailer unit.

[7] The modifications included the retention of existing proximity sensors/switches as a safety feature to ensure that the support legs which stabilise the unit during use could not be moved unless the arms, which operate to lift and move the shipping containers, were fully stowed. The sensors/switches were also designed to ensure that the lifting arms could not be moved unless the support legs were fully down and positioned as stabilisers.

[8] Although the proximity sensors/switches were retained the modification required rewiring of their electrical circuits.

[9] The support legs and lifters were operated by a generic multi-functional remote control device. As a result of the alteration of the electrical circuits, the pictograms on

a number of the buttons on the remote control did not correlate to the functions of the modified side loader and training and experience was required to ensure safe operation using the remote control device.


[10] The container being lifted on the day of [the deceased’s] death weighed 24,100 kilograms. Its contents were stable. Neither the weight of the container or the distribution of its contents has played any role in the incident.

[11] On the day of the incident [the deceased] positioned himself at the right rear corner of the container to be lifted. He began operating the lifting arms to enable them to be attached to the bottom on the container. Having done that he began deploying the support legs. The container was then lifted approximately 1.4 metres when it fell backwards onto the ground dragging the side loader with it. [The deceased], unable to escape, was crushed between the rear of the trailer and another nearby container. He died at the scene.

[12] Worksafe’s investigation into the incident established:

Coda


[13] On 3 November 2015 [the deceased’s] employer, Coda, required him to undertake two assessments in relation to his driving and operation of the side loader. However those assessments did not cover safe zones around the side loader, operating the side loader using the remote control or the manual use of the operating levers for the lifting arms.
[14] Coda provided [the deceased] with a copy of a document entitled, “induction to priority logistics” which covered the company’s employee safety policy and driver safety zones. However as Coda operates a range of side loader models, the reference to driver safety zones in the document was not specific to the operation of the side loader operated by [the deceased] on the day of his death.

[15] On 3 December 2015 [the deceased] took part in training as a refresher for all of its side loader operators regarding its Standard Operating Procedure (SOP) for placing/picking up containers.

[16] The SOP contains general cautions not to stand under a load, or walk or stand between the container and the unit but does not identify any particular safe or exclusion zones while the side loader unit is in operation.

[17] The SOP does not contain any direction regarding the use of the remote control device to operate the side loader or what the symbols on the remote control buttons refer to but these matters are specifically covered in the employee assessment.

[18] Coda owned and was responsible for maintaining the side loader. Specialised work relating to electrics was out sourced to Mount Auto Electrical Limited.

[19] Coda did not have any system in place for testing the electronic safety features of the side loader, including the proximity sensors/switches, either periodically or following maintenance. A routine maintenance programme based on the manufacturer’s manual was complied with but it did not cover testing of safety features.

[20] The hazard to employees operating the side loader is a crushing hazard. The ACC guidance document dealing with safety around shipping containers and container handling equipment, published in May 2007, highlights the danger of crushing injuries during the movement of shipping containers using side loaders. The document identifies a number of safety measures including:
[21] The following practicable steps were available with Coda and should have been taken prior to the incident:

[22] The undisputed summary of facts states:

Had one or more of those steps been taken it is likely this incident would not have occurred.

Hammar


[23] Hammar NZ was commissioned by PLL to convert the side loader in 2011 and during that process the proximity sensors/switches were moved from their original position. Rewiring was required to ensure the proximity sensors/switches operated correctly.

[24] Hammar was unable to produce any documents to establish what testing, if any, was carried out to ensure the repositioning of the proximity sensors/switches and the rewiring was carried out correctly and was effective. Hammar says that the converted side loader would not have been returned to Coda with malfunctioning safety devices.

[25] Following [the deceased’s] death Hammar provided Worksafe with two different electrical wiring diagrams for the side loader, neither of which corresponds with how it was in fact wired.

[26] At no point did Hammar provide PLL, or later Coda, with an updated electrical diagram for the converted side loader. That was notwithstanding that the conversion required rewiring of the proximity sensors/switches and that, as Hammar acknowledged to Worksafe, it had identified the existing wiring diagram was not correct for the converted unit.

[27] In June 2014 the side loader was sent to Hammar for substantial repairs involving removing the lifting arms and support legs and replacing them. On completion of those repairs Hammar was unable to provide a record of testing to check that the proximity sensors/switches were working correctly.

[28] Prior to and following the 2011 conversion the side loader should have been fitted with appropriate warning signage indicating, at a minimum, safe working zones, weight load limits and markings on the manual levers. No such signage was present at the time of the incident.
[29] In addition, following the 2011 conversion it was necessary for Hammar to update any signage indicating safe weight limits at different leg positions which differed from the pre-conversion model. No updated signage was fitted by Hammar.

[30] The obligations on designers, manufacturers and suppliers of plant are expressly recognised in a number of Health and Safety and Employment regulations. That includes adequate testing of all safety features and the need to provide accurate and adequate instruction or material to a purchaser to ensure proper understanding of how to use and maintain the supplied plant and equipment safely.

[31] The following practicable steps were available to, and should have been taken by, Hammar:

The sentencing process


[32] Section 51A of the Health and Safety in Employment Act 1992 expressly provides for sentencing under that Act. It says:

51A Sentencing criteria


(1) This section applies when the Court is determining how to sentence or otherwise deal with a person convicted of an offence under this Act.
(2) The Court must apply the Sentencing Act 2002 and must have particular regard to—

(3) This section does not limit the Sentencing Act 2002.

[33] The leading authority in application of that section is from a full bench of the High Court in Department of Labour v Hanham and Philp Contractors Limited.1

[34] The Court noted at [24] and [26] respectively:

[24] Section 51A was enacted by the amending legislation which took effect in May 2003. The section makes it abundantly clear that the Sentencing Act must be applied when sentences are imposed under the HSE Act and that nothing in s 51A limits the provisions of the Sentencing Act. Section 51A(2) identifies particular provisions in the Sentencing Act and other matters to which the sentencing judge must have particular regard.

[26] While s 51A provides specific focus to the sentencing exercise under the HSE Act, it is not be regarded as dominating or overriding the Sentencing Act. The latter must remain the principal guide to the sentencing judge.


[35] At [80] the Court summarised the appropriate sentencing approach as:

1 Department of Labour v Hanham and Philp Contractors Limited [2008] NZHC 2076; (2008) 6 NZELR 79 (HC).

[80] Before considering the merits of the individual appeals we summarise the approach to sentencing for offending under s 50 of the HSE Act:

[39] above), taking into account any offer of amends and the financial capacity of the offender (see paras [41] – [49] above).


(5) The second main step is to fix the amount of the fine. This should follow the methodology established by the Court of Appeal in Taueki, namely fixing a starting point on the basis of the culpability for the offending and then adjusting the starting point upwards or downwards for aggravating or mitigating circumstances relating to the offender (see paras

[47] – [50] above).


(6) The assessment of a starting point for the fine involves an assessment of the culpability for the offending (see paras [54] and [55] above). Starting points should generally be fixed according to the following scale:

Low culpability: a fine of up to $50,000

Medium culpability: a fine of between $50,000 and $100,000 High culpability: a fine of between $100.000 and $175,000

(7) The starting point for the fine is then to be adjusted for any relevant aggravating and mitigating factors relating to the offender (see paras [61] – [63] above).

(8) Reparation is then to be taken into account in fixing the fine (see paras [64] – [71] above).
(9) Financial capacity to pay a fine is also to be considered in fixing the fine (see paras [75] – [77] above).

(10) The third main step is to assess whether overall burden of the reparation and fine is proportionate and appropriate (see paras

[78] and [79] above).


[36] Section 12 of the Sentencing Act 2002 provides that where a Court is lawfully entitled to impose a sentence of reparation it must do so in the absence of undue hardship or other special circumstances that would make such an order inappropriate. Section 32 of that Act provides:-

32 Sentence of reparation


(1) A court may impose a sentence of reparation if an offender has, through or by means of an offence of which the offender is convicted, caused a person to suffer—

(2) Despite subsection (1), a court must not impose a sentence of reparation in respect of emotional harm, or loss or damage consequential on emotional harm, unless the person who suffered the emotional harm is a person described in paragraph (a) of the definition of “victim” in section 4.

(3) In determining whether a sentence of reparation is appropriate or the amount of reparation to be made for any consequential loss or damage described in subsection (1)(c), the court must take into account whether there is or may be, under the provisions of any enactment or rule of law, a right available to the person who suffered the loss or damage to bring proceedings or to make any application in relation to that loss or damage.

(4) Subsection (3) applies whether or not the right to bring proceedings or make the application has been exercised in the particular case, and whether or not any time prescribed for the exercise of that right has expired.

[(5) Despite subsections (1) and (3), the court must not order the making of reparation in respect of any consequential loss or damage described in subsection (1)(c) for which compensation has been, or is to be, paid under the Accident Compensation Act 2001.]


(6) When determining the amount of reparation to be made, the court must take into account any offer, agreement, response, measure, or action as described in section 10.
(7) The court must not impose as part of a sentence of reparation an obligation on the offender to perform any form of work or service for the person who suffered the harm, loss, or damage.

(8) Nothing in section 320 of the [Accident Compensation Act 2001] applies to sentencing proceedings.

Victim impact statements


[37] I have received victim impact statements from [the deceased’s] partner and both of his parents who were present at sentencing. I also have a statement from [the deceased’s] former partner who lives in [location deleted] with their two adult children. The victim impact statement prepared by [the deceased’s] parents was read to me by his counsel.

[38] All counsel acknowledged that no amount of money can compensate [the deceased’s] family.

[39] The loss to [the deceased’s] partner of 14 years has left her lonely and grieving. She is currently living with family in [location deleted].

[40] [The deceased’s] parents are both in their sixties. Their son was an integral part of their family and someone that they had relied upon and of whom they were proud.

[41] [The deceased’s] former partner and children maintained regular contact with him. She praises him as a loving and caring father.

Restorative justice reports


[42] Both defendants engaged in the restorative justice process with [the deceased’s] family. The outcome of the conferences involving Coda was positive in the sense that the family has accepted Coda’s acknowledgement of responsibility and assistance given after [the deceased’s] death. There was also acknowledgment of steps taken by Coda after the incident to prevent a similar occurrence.
[43] The outcome of the conference with Hammar was less positive and there are references in the report which suggests [the deceased’s] family attribute significant blame for his death to the actions of Hammar. I interpret that reaction to Hammar’s delayed entry of a guilty plea to the charge. Coda entered an early plea but there were ongoing negotiations concerning the charge against Hammar prior to its acknowledgment of responsibility by entry of a guilty plea.

[44] The reaction of [the deceased’s] family is entirely understandable but my function is to assess culpability according to the facts and the applicable law.

[45] The important point from a sentencing perspective is that both defendants have willingly engaged in the restorative justice process, have expressed their regret and sympathies to [the deceased’s] family and have acknowledged responsibility.

Counsel’s submissions


[46] Mr Elliott for Worksafe summarised his position as:

$2001.20.


(b) Reparation should be apportioned 60/40 as between Coda and Hammar as an acknowledgement of their relative culpability and causal connection to the incident.

(c) A start point for the fine against Coda of $100,000 is justified. Coda’s offending falls within the high culpability band identified in DOL v Hanham and Philp.

(d) A start point for the fine against Hammar of $75,000 is justified. Hammar’s offending falls within the medium culpability band identified in Hanham and Philp.

Reparation

[47] In support of his submission that emotional harm reparation of $110,000 is appropriate Mr Elliott referred to a number of sentencing decisions involving fatalities where reparation was awarded across a range of $75,000 - $140,000.

Case
Incident
Reparation ordered

Worksafe v Department of Corrections2
Community worker fatally crushed by felled tree
$140,000
for
emotional harm

Worksafe v Broadspectrum (New Zealand) Limited and NZ Traffic Hamilton Limited3 - 23
December 2016
A member of the public, riding a motorbike, followed a truck into a roading worksite and was killed when it reversed over her.
$120,000
for
emotional harm

R v Steelcon Construction Ltd
and Rodney Bishop4 - 22 March 2016
A trench collapsed resulting in the death of the victim
$75,000 for
emotional harm

R v Burr and Paul Burr Contracting Ltd5 - 30 October 2015
Forestry fatality
$75,000 for emotional harm

[48] In Worksafe New Zealand Limited v Oropi Quarries Limited I had cause to consider a number of authorities when assessing emotional harm reparation arising from a fatality in a quarry.6

2 Worksafe New Zealand v Department of Corrections [2016] NZDC 24865 and reserved decision dated 19 January 2017 Worksafe New Zealand v Department of Corrections [2017] NZDC 819.

3 Worksafe New Zealand v Broadspectrum (New Zealand) Limited (formally known as Transfield Services (New Zealand Limited and NZ Traffic Hamilton Limited [2016] NZDC 26458.

4 R v Steelcon Construction Ltd and Rodney Bishop [2016] NZHC 494.

5 R v Burr and Paul Burr Contracting Limited [2015] NZHC 2675.

6 Worksafe New Zealand Limited v Oropi Quarries Limited and Catherine Mary Renner [2016] NZDC 10755.

[49] Mr Beech for Coda took no issue with Mr Elliott’s submission that emotional harm reparation of $110,000 is appropriate. Mr Lynch for Hammar did not challenge the assessment but raised issues as to causation and relative culpability which I deal with below.

[50] No amount of reparation will ever compensate [the deceased’s] family for their loss. Judges face an unenviable task of quantifying, within a statutory framework, emotional harm resulting from death. However I accept Mr Elliott’s submission that his nominated figure of $110,000 for emotional harm reparation is appropriate in the circumstances of this case. That will be the award. Mr Elliott has advised that [the deceased’s] family has requested that reparation be apportioned equally between [names and details deleted] – one sixth each.

[51] I also award reparation for consequential loss of $2001.20 - $900 to [name and details deleted] and $1101.20 to [name and details deleted].

Reparation - Hammar


[52] A proportionate division of the liability for reparation as between defendants involves an assessment of relative culpability and, in this case, an assessment of the submission by Hammar that its failure to take the acknowledged practicable steps could not have been causative of the death of [the deceased] and therefore there is no nexus between Hammar’s offence and the emotional harm that has accrued to [the deceased’s] family.

[53] Mr Lynch’s position is that no award against Hammar can be justified under s 32 of the Sentencing Act as the emotional harm suffered by [the deceased’s] family was not caused “through or by means of the offence.”

[54] Mr Lynch says that the voluntary offer of reparation of $20,000 by Hammar as an acknowledgment of a “moral obligation” still stands but could not be the subject of a formal reparation award.
[55] As a preliminary point, I record that a number of documents submitted by Mr Lynch in support of his submissions will not be taken into account in my assessment of Hammar’s culpability or the ultimate penalties to be imposed.

[56] Mr Lynch has provided a chronology which is relevant and based on information which is not in dispute but the invoices relating to electrical maintenance of the side loader by a company engaged by Coda and also an affidavit from an independent auto-electrician cannot be taken into account. They deal with matters beyond the agreed summary of facts and are an attempt to introduce additional evidence for sentencing purposes.

[57] I do however accept the affidavit of a director of Hammar dealing with non- contentious matters concerning the restorative justice conference, detailing post- incident remedial action and Hammar’s financial position.

[58] Mr Lynch’s primary submission on culpability and causation is that Hammar’s failure to take the identified practicable steps renders Hammar’s position “starkly different and very much secondary to that of Coda.”

[59] He says that the practicable steps relate to the provision of documents and that apart from mechanical repair work carried out in June 2014 Hammar had no dealings with the sider loader after the 2011 conversion. Ongoing maintenance obligations including electric upkeep, were entirely the responsibility of Coda.

[60] Coda had outsourced electrical maintenance to a local company and the failure to properly maintain and/or inadequately reconfigure or understand the side loader electrics was the responsibility of Coda and its electrical contractor. Hammar cannot be responsible for the shortcomings of others in this regard.

[61] I note that I rejected Mr Beech’s submission that there is an available inference that the faulty wiring of the motion sensors/switches was in place, and caused by, Hammar on delivery of the side loader after the 2011 conversion or the 2014 mechanical maintenance. I do not accept that there is evidence that would justify an

inference that Hammar brought about the wiring faults discovered in the Worksafe investigation.


[62] Mr Lynch’s submission on causation is that Hammar has accepted responsibility for errors of documentation and cannot be responsible the “defunct state of the side loader’s safety systems on the day in question.”

[63] Mr Lynch acknowledges the Court of Appeal reference in R v Donaldson and Chapman that reparation is to be approached in a broad common sense way and resort to refined causation arguments is not to be encouraged.7

[64] However he submits that the causal nexus “through or by means of” required under s 32 of the Sentencing Act is absent and that is an end to the reparation issue as far as Hammar is concerned.

[65] In response Mr Elliott says:

[66] His submission is that those failures mean that Coda had no accurate base line as to how the side loader should work.

[67] By reference to the chronology Mr Elliott says the fact that Coda had possession, control and responsibility for ongoing maintenance for lengthy periods subsequent to the 2011 conversion and the 2014 maintenance is not relevant.

7 R v Donaldson and Chapman CA227/06, 7 October 2006.

[68] Mr Elliott says that the failure to provide a manual and an up-to-date wiring diagram can be seen as contributing to the death of [the deceased] in that Coda’s ability to ensure his safety was compromised notwithstanding the lack of proximity of those failures to the date of [the deceased’s] death.

[69] Mr Elliott says that the threshold for causation under s 32 has been passed if “only just”.

[70] I have difficulty with that submission. Hammar acknowledges the practicable steps it could have taken but did not. They are failures to provide documents, (the manual and electrical drawings), the failure to provide signage and failure to document the testing and certification of the side loader before delivery.

[71] In my view those failures cannot justifiably be seen as causative of the death of [the deceased]. Coda had possession and control of the side loader through its predecessor PLL since 2011 and was entirely responsible for the maintenance and upkeep of the side loader including, in particular, the electrical circuitry and electrical equipment. To suggest that a failure to provide an up-to-date wiring diagram at the point of delivery renders the death of [the deceased] some years later, “through or by means” of that failure is untenable.

[72] To reach that conclusion would be to exonerate Coda and its electrical contractor from their responsibilities. Coda acknowledges it had no regime for testing electricial safety systems on the side loader, particularly the proximity switches, either as part of a pre-start check or regular periodic servicing.

[73] Furthermore Hammar’s failure to provide an instruction manual and signage as to safe zones, weight loads and markings on manual levers cannot exonerate Coda from its acknowledged obligations to fit signage and to adequately train its machine operators.

[74] A line must be drawn and the submission that Hammar’s admitted failure to carry out the practicable steps acknowledged in the agreed summary of facts is

causative of [the deceased’s] death in 2015 ignores the intervening obligations of Coda and its contractors which in my view definitively break any chain of causation.


[75] As was noted by Gallen J in Wilson v Police, the issue is whether a reasonable person could have foreseen the kind of loss, damage or harm which occurred as a result of the offence. 8 In the circumstances of this case I cannot hold that it was reasonable for Hammar to foresee the death of [the deceased] and the loss accruing to his family resulting from its failure to take the identified practicable steps.

[76] There will no award of reparation against Hammar. The entire reparation amount will be the responsibility of Coda.

Fines


[77] In Department of Labour v Hanham and Philp Contractors Limited at [54] the Court set out a non-exhaustive list of factors for the assessment of culpability. They are:

8 Wilson v Police HC Napier AP60/94, 13 February 1995.

[78] To justify his start points Mr Elliott addresses those factors in relation to each defendant.

Coda


(a) Practicable steps – these are detailed in the agreed summary of facts.

(b) Nature and serious of risk – Mr Elliott submits that the risk of harm was significant and obvious. The container being lifted weighed in excess of 20 tonne and any crushing incident was almost certain to be fatal.

(c) Degree of departure from prevailing industry standards – guidance in respect of the safe operation in moving heavy machinery is publicly available. In particular the ACC document quotes “safety around ISO containers and container handling equipment.” It highlights the danger of crushing injuries around moving containers when using side loaders. That document identifies such matters as:

In addition, the Crane Association of New Zealand (Inc) published a document “Crane Safety Manual for Crane Operators and Drivers” which details the need for such things as permanent signage and marking detailing all safety information to ensure safe operation.


(d) Obviousness of the hazard – the hazard was patently obvious. Coda’s own SOP noted – “the side lifter hydraulics move slowly and slightly, but produce great

strength. They can do considerable damage.” Notwithstanding that knowledge Coda failed to take the above practicable steps to ensure employee safety.

To the extent that [the deceased] may have been careless in his operation of the side loader, that cannot be taken into account to minimise Coda’s culpability. That is well established – See Department of Labour v Eziform Roofing Contractors Limited.9


(e) Availability, cost and effectiveness of the means necessary to avoid the hazard
– this could be achieved at minimal cost. Coda’s own internal driver/trainer/assessor could have been easily engaged to properly educate [the deceased] and other side loader drivers in matters of safety.

In addition a properly implemented maintenance and testing regime for the side loaders would have involved minimal cost using in-house engineers and workshop facilities.


(f) Current state of knowledge of the risks and means to avoid or mitigate the hazard – the heavy machinery industry is well aware of the risk of serious harm arising from the lifting and shifting of heavy objects.

[79] Mr Elliott refers to a number of cases which he submits are comparable and support his submission that Coda falls within the high culpability band in Hanham and Philp with a start point of $100,000.

Case
Incident
Starting point

DoL v Truck Farms Ltd10
The victim was working under a bus that had been elevated by using a forklift and placing two wheel rims under the rear wheels. The rims were uneven and different, and there were no additional supports or blocks to raise the bus.
The bus rolled off the rims, the victim was
$90,000

9 Department of Labour v Eziform Roofing Contractors Limited [2013] NZHC 1526.

10 Department of Labour v Truck Farms Ltd DC Manukau CRI-2009-092-503976, 8 April 2010.

crushed ad pinned under the rear of the bus. He was pulled clear by colleagues.

The Court noted the defendant should have identified the hazard of raised vehicle and developed a safe procedure, ensuring it was used and understood; it was high risk work – an obvious hazard requiring proper safety and security measures, and serious harm was

caused.



Worksafe v Woods Contracting Services Ltd11


A digger was being used to lift a dump truck so that work could be done underneath it to fix a hydraulic hose. There was a failure to use a safety pin on the quick-hitch on the digger. The truck’s bucket came loose and fell off its quick- hitch point. As a result, the bucket of the bulldozer landed on the victim causing serious harm.

The Court noted obvious risk of serious injury or death by crushing when lifting a heavy vehicle. The Defendant company did not have in place standard operating procedure for using the digger as a lifting machine. The Court noted that while an unusual situation, breakdown of machinery generally happens often and provision should have been made for

such instances.



Worksafe v Hunter Laminates Nelson Limited12


The victim suffered serious injuries to his legs when a 12-metre laminated timber beam fell on him while it was being moved from two saw- horses using a forklift. The defendant had identified the moving of the laminated timber

beams as a hazard, and had engaged a company


$105,000


11 Worksafe v Woods Contracting Services Ltd DC Palmerston North CRI-2014-054-000732, 23 July 2014.

12 Worksafe New Zealand v Hunter Laminates Nelson Ltd DC Nelson CRI-2014-042-000957, 1 October 2014.

to manufacture a device that would be more appropriate to use in moving the beams, but had not put in place any systems to control the hazard in the meantime other than an informal exclusion zone.

The Court noted that the actual harm in this case was towards the extreme end of the potential harm involved. It also took into account that there were a number of obvious practicable steps that could have been taken and were not – including the development of a safe operating procedure and dedicated exclusion zone – the degree of departure from industry standards was significant, the hazard was obvious, and the means of avoiding the risk was

relatively straightforward.



Worksafe v AJ Russell Bricklayers Limited13


The victim suffered fatal crushing injuries when he was crushed between the crane boom and the deck of a truck loader crane. The victim had been carrying out routine maintenance on the crane and was operating the boom by a retrofit remote control unit worn around his neck. The victim was an experienced crane operator with over 40 years experience and was the senior truck Hiab operator.

The defendant failed to ensure all operators were made aware during their induction of the manufacturer’s operating instructions and related material, and also failed to adopt a mandatory regime for in-house maintenance to ensure all cleaning and maintenance could be carried out safely. Such a regime could have specified control measures such as depowering the crane and not wearing the remote control

unit while carrying out such works. The Court


$70,000


13 Worksafe New Zealand v AJ Russell Bricklayers Limited [2015] NZDC 22946.

noted that the first practicable step, given the victim’s vast experience, may not have assisted. In respect of the second step, it was noted that the victim had departed from his own system of carrying out maintenance whilst still wearing the remote. The Court also noted the lack of industry guidance in respect of this kind of

crane



[80] Against the proposed start point Mr Elliott would allow a reduction for the following factors:

[81] Addressing the third step Mr Elliott submits that the overall burden of the reparation and fine is proportionate and no adjustment is necessary. 15

[82] In response to the above submissions Mr Beech acknowledges that Coda’s liability falls at the higher end of the medium culpability band, or the lower end of the high culpability band and agrees that an appropriate start point is in the region of

$100,000.


[83] He however contends for the following reduction:

14 Hessell v R (2010) 24 CRNZ 996 (SC).

15 Hanham v Philp at [80] see [36] above.

(a) 15% for reparation payments paid, and to be made. Coda has already voluntarily paid reparation of $40,000 and $10,671 consequential loss.

(b) A 20% reduction for the remedial action taken after the accident, a favourable safety record and co-operation with the investigation.

(c) Full credit of 25% for guilty plea.

[84] In support of his submission that reparation paid and to be paid should attract a 15% reduction from the start point Mr Beech refers to the decision of his Honour Justice Priestley in Department of Labour v Areva TD New Zealand Limited at [48] where the Judge said: 16

The significant financial provision which flowed to the deceased family, particularly when seen in the context of the restorative justice conference and the victim impact reports which the Judge had, would justify an additional discount of up to 15%.


[85] Mr Beech points to the substantial reparation already paid, the successful restorative justice conference and favourable comments in some of the victim impact statements concerning Coda’s response to the incident.

[86] I agree that the reduction should be 15% which is the upper limit of the range referred to in Department of Labour v Areva, as approved in Hanham and Philp.

[87] In support of his submission that a further 20% reduction should be allowed for other mitigating factors, before reduction for guilty plea, Mr Beech refers to the decision of her Honour Justice Duffy in Department of Labour v Eziform Working Products Limited where she held that such matters as the offer of reparation, remedial action, favourable safety record and co-operation with the investigation could lead to an overall maximum discount in the range of 20-30%. Mr Beech would claim 20% in acknowledgement that discount for reparation is factored in separately.

[88] Mr Beech notes:

16 Department of Labour v Areva TD New Zealand Limited HC Rotorua 9 November 2005.

(a) Coda’s remedial action was extensive; a thorough internal investigation was carried out and remedial steps were implemented.

(b) Coda has been fully co-operative with the investigator.

(c) Coda has willingly agreed to be involved in a restorative justice process and fully engaged in that process.

(d) Coda has a favourable safety record.

[89] There is no dispute that post-incident steps taken by Coda have been extensive with a full revision of its procedures and implementation of remedial steps to avoid a repeat incident. These matters are of course after the fact and address practicable steps which should and could have been taken by Coda prior to the incident with the effect that any one of them may well have avoided the death of [the deceased].

[90] However the authorities recognise that post-incident remedial steps justify a reduction of penalty on fundamental sentencing principle. Similarly co-operation with an investigation and lack of a previous “record” are legitimate mitigating factors. I consider that a reduction for mitigating factors in addition to reparation, and before guilty plea of 15% is justified.

[91] There is no dispute that a full discount of 25% for guilty plea is due. The result is therefore:
(a)
A start point of
$100,000

(b)
A reduction of 15% for reparation
- $15,000



$85,000

(c)
A further reduction of 15% for other

mitigating factors - $15,000


$70,000


A reduction of 25% for guilty plea $17,500


$52,500

Hammar


[92] Mr Elliott, in support of his submission that Hammar’s culpability falls within the medium culpability band of Hanham and Philp with a justified start point of

$75,000.00, analyses the Hanham and Philp culpability factors and refers to a number of authorities.


(a) Practicable steps – these are referred to above and are set out in the agreed summary of facts as the failure to provide documentation but should not be regarded as mere technical breaches.

[93] Mr Elliott submits that there is no way of knowing whether, and if so, what, testing Hammar carried out to ensure the safety features of the side loader were working correctly following its work on the side loader. Nor, he says was any documentation provided to clarify what changes Hammar had made to the wiring of the proximity sensors/switches on the side loader as compared to the existing wiring diagrams.

[94] As noted above, I have rejected any submission that it has been established that Hammar provided the side loader with inadequately wired safety systems or that they were not working on delivery. Such a submission is speculative notwithstanding the lack of any documented testing procedures by Hammar.

[95] Similarly I have already made the point that the lack of a wiring diagram does not overcome the responsibility of Coda’s independent contractor to adequately assess and maintain the wiring of the side loader over a number of years since the 2011 conversion and a lengthy period subsequent to the 2014 maintenance.
(b) Nature and seriousness of the risk of harm – crushing by a container weighing in excess of 20 tonnes is likely to be fatal as was the case

(c) Degree of departure from prevailing industry standards – Health and Safety and Employment Regulations 1995 expressly recognise obligations on designers and manufacturers and suppliers of plant. Hammer is not prosecuted for breach of those regulations but Mr Elliott’s submission that it is common sense to provide such things as manuals, wiring diagrams and safety signage to the purchases of manufactured plant and machinery.

(d) Obviousness of the hazards – the proximity sensors/switches are expressly designed to avoid what occurred in this incident. Hammar failed to document its testing of those sensors or provide adequate instruction or warning documentation to ensure the safe operation of the side loader.

(e) Availibility, cost and effectiveness of the means necessary to avoid the hazard
– Mr Elliott submits that it would be a simple matter to document testing, and to provide the other documents detailed in the acknowledged practicable steps.

[96] Mr Elliott refers to the following authorities in support of his start point of

$75,000.


Case
Incident
Starting point

DoL v APN Print and Transpacific Industries17
The victim suffered a broken arm after being crushed between a large hydraulic lifting bin and waste paper compactor in APN’s facility. The bin lifter was supplied by Transpacific Industries. When in operation the bin tipped over the compactor creating a pinch point. While operating the tipper bin, the victim noticed paper spilling out and reached between the hydraulic cylinder with his left hand and the frame of the bin to push it back in, while continuing to operate the controls with his other hand. His left arm was caught in the pinch point, breaking it.

The primary practicable step failed to be taken was to have located the controls for the compactor such that the operator could not simultaneously reach the pinch point. However, it was also found that Transpacific had failed to, when it supplied the compactor:

∙ Provide operating instructions establishing guidelines for the use of the compactor;

∙ Attach signage to the compactor warning of the relevant hazards created by it; and

∙ Label the compactor’s controls.
Transpacific’s culpability was found to fall within the middle of the medium band. In doing so, the Court took into account that Transpacific’s failures were not necessarily
causative of the incident.
$80,000

17 Department of Labour v APN Print NZ Ltd and Transpacific Industries Group (NZ) Ltd DC Tauranga CRN10070503485, 16 January 2012.


Worksafe v Gordon Developments and Adams Machinery Plant Hire18
The victim was backfilling a trench using a “Skid Steer” (a small front end loader) to collect crushed concrete. The unit had been hired out (supplied) by Adams Machinery. The victim was operating the machine with the bucket up so that he would see the ground in front of him, which was unstable. He lost control, the bucket suddenly dropped, catching his leg between it and the frame of the Skid Steer and crushing it.

The Skid Steer was equipped with sensors to detect weight on the seat and a fastened seatbelt, connected to an interlock device that prevented the unit from operating unless the operator was properly seated and had their seat belt on. Those safety devices were found to have been disabled through modified wiring.

Adams Machinery was found to have failed to take the following practicable steps:

∙ Ensure the safety devices on the Skid Steer were fully operational before hire;

∙ Implement adequate systems for inspection and maintenance of the safety devices on the Skid Steer; and

∙ Ensure an effective system for conducting pre-hire service and safety checks and communicating the outcome.
Adams Machinery’s culpability was found to
fall at the higher end of the medium culpability band. That was higher than
Adams: $80,000

Gordons:
$60,000

18 Worksafe New Zealand v Gordon Developments Ltd [2016] NZDC 5535.

Gordon’s which was found to be lower in the medium band.

The Court reached those views notwithstanding uncertainty remaining regarding whether the victim was in fact wearing his seat belt at the time of the

incident.



Worksafe v Propping Ltd19


Shoreload


and


The victim was seriously injured after falsework holding up a 15 tonne concrete panel failed and the panel fell, knocking him off a scaffolding platform and crushing him. He suffered a crushed hip, skin lacerations and lacerated scrotum. The falsework had been supplied and installed by Shoreload.


$75,000





Shoreload was found to have failed to take the following practicable steps – which predominately related to failures of communication:






∙ Requesting a building plan setting out the position of the panel rather than simply working from string lines and oral advice:






∙ Drafting or otherwise providing its employees with a written falsework design; and






∙ Implementing an effective system to check the installation of its shoreloading against the design to ensure it was installed as per the design.





Shoreload’s culpability was found to fall within the middle of the medium band.



19 Worksafe New Zealand v Shoreload and Propping Ltd [2016] NZDC 5273.

[97] All of these cases involve the supply of plant and machinery and a failure to communicate or provide relevant information to ensure its safe use. All involve conduct which was found to be within the middle or high end of the medium culpability band in Hanham v Philp.

[98] Mr Elliott acknowledges that the supply by Hammar was “less proximate in time” than in the cases referred to but says that in those cases there was no fatality and the fact that [the deceased] died is an aggravating factor which increases Hammar’s culpability.

[99] There is difficulty with Mr Elliott’s reliance upon these authorities and his submission that the fact that there was a fatality overcomes the lack of proximity in time between supply and the incident.

[100] As Mr Lynch submits, and I accept, the authorities relied upon Mr Elliott are distinguishable.

[101] In Department of Labour v APN Print and Trans Pacific Industries the machinery was leased and any failure to provide documentation was secondary to design faults. The incident which led to the prosecution was approximate in time to the leasing.

[102] In Worksafe v Gordon Developments and Adams Machinery Plant Hire the machinery was hired with a proven failure to ensure that its safety devices were operational or to implement adequate systems for inspection and maintenance. The incident which led to the prosecution occurred five days after the machinery was delivered.

[103] In Worksafe v Shoreload and Propping Limited the failures related to design and not a failure to supply technical documentation. Again the failure there was proximate in time to the incident.

[104] I do not accept that the authorities referred to by Mr Elliott are of particular assistance. To the contrary they are distinguishable in demonstrating that Hammar’s

culpability in this case is considerably less than the defendants in the cases referred to by Mr Elliott.


[105] Mr Lynch submits that Hammar’s culpability falls within the low band of Hanham and Philp. I agree with that submission. Mr Lynch contends for a start point of $40,000 and I also accept that submission.

[106] Mr Elliott accepts that there are mitigating factors which would reduce an appropriate start point. He would acknowledge a 15% reduction for all mitigating factors before allowance for guilty plea. Those factors are co-operation with the investigation, the lack of an adverse safety record and attendance at restorative justice. He would make no allowance for reparation.

[107] Coda has received a 15% reduction in acknowledgement of the substantial reparation already paid and to be paid under my award. No similar consideration can be given to Hammar as it is not the subject of an award but there must be an acknowledgement that, notwithstanding the absence of an award, Hammar will make a voluntary payment of $20,000. That offer must be accepted as bona fide. Mr Lynch advises that the money is in his trust account.

[108] I consider that in addition to the reduction of 15% for other mitigating factors an additional 5% is due for the voluntary offer of reparation of $20,000.

[109] Mr Elliott acknowledges a discount for guilty plea of no more than 10%. Mr Lynch takes issue with that saying that the timing of the guilty plea is but one factor to be taken into account.20

[110] In this case Hammar successfully disputed aspects of the charge originally laid and it was only after a specific allegation of failing to test the safety components of the side loader were withdrawn that the guilty plea was entered.

[111] Timing is one factor only. The challenge to a charge with a successful amendment or reduction is part of the interaction between prosecution and defence

20 Hessell v R (2010) 24 CRNZ 996 (SC).

prior to trial or the entry of a guilty plea. In my view there can be no basis to distinguish between Coda and Hammar to the extent contended for by Mr Elliott.


[112] It is correct that the early entry of the guilty plea by Coda gave a degree of closure to the victims of the offence. That is recognised by the comments in the restorative justice reports and victim impact statements. However a legitimate and successful challenge to aspects of the prosecution case which has ultimately delayed the entry of guilty pleas, notwithstanding the effect that delay may have had upon the victims of the offence, cannot justify an allowance of 10% only. I accept Mr Lynch’s submission that a discount of 20% adequately distinguishes between Coda and Hammar and is inappropriate acknowledgement of Hammar’s guilty plea.

[113] The fine therefore will be calculated on the basis that:
(a)
Start point
$40,000

(b)
Reduction for mitigating factors 20%
-$8000



$32,000

(c)
Credit for guilty plea 20%
$6400



$25,600

[114] I do not consider the burden of the reparation and fine to be paid by Coda is disproportionate. It is appropriate.

Result


(a) Emotional harm reparation of $110,000 is awarded to [names deleted].

(b) The full amount is to be paid by the first defendant Coda Operations Limited Partnership but is to be reduced by $40,000 already paid.
(c) The balance of $70,000 is to be divided equally between the abovenamed beneficiaries of the award.

(d) The first defendant will pay additional consequential losses in the sum of $900 to [name deleted] and $1101.20 to [name deleted].

(e) The first defendant will pay a fine of $52,500 within 30 days.

(f) The second defendant will pay a fine of $25,600 within 30 days.

(g) There is a final order suppressing the name of the deceased [the deceased]. To give effect to that order I also suppress the names of all of the abovenamed family members, the beneficiaries of the reparation award.

P G Mabey QC District Court Judge

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