Worksafe New Zealand v Syron [2017] NZDC 27011 (2 September 2016)

Last Updated: 24 January 2018

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

IN THE DISTRICT COURT AT WHANGAREI

CRI-2016-088-000756 [2016] NZDC 27011

WORKSAFE NEW ZEALAND

Prosecutor

v

MARCEL ROBERT SYRON

PRIORITY ONE CONSTRUCTION 2012 LIMITED

_Defendants

Hearing:	2 September 2016
Appearances:	S Corlette and I Brookie for the Prosecutor C Prendergaast for the Defendants
Judgment:	2 September 2016

_{NOTES OF JUDGE P W COOPER ON SENTENCING}

[1] In this case, Priority One Construction 2012 Limited and Marcel Syron face charges under the Health and Safety in Employment Act 1992.

[2] Priority One is charged that in September 2015, it failed to take all practicable steps to ensure that no employee of a contractor was harmed while doing work the contractor was engaged to do, an offence pursuant to s 18(1)(a) of the Act.

[3] Marcel Syron is charged that in September 2015, being a self-employed person, he failed to take all practicable steps to ensure that no action or inaction of his

WORKSAFE NEW ZEALAND v MARCEL ROBERT SYRON [2016] NZDC 27011 [2 September 2016]

while at work harmed another person, an offence pursuant to s 17 of the Act. The maximum penalty in respect of each of these charges is a fine not exceeding $250,000.

[4] The charges arise from an accident at a building site at [address deleted] at Whananaki. Priority One Construction 2012 Ltd was contracted to construct the utility shed on the property. Marcel Syron is a self-employed builder who was contracted by Priority One to assist in the construction of the shed and in particular to fit the fascia boards to the shed.

[5] A scaffolding system had been erected around the shed with edge protection to protect workers on the roof from falling. The edge protection consisted of a guardrail. The scaffolding system had been erected by Priority One.

[6] On 9 September 2015, Mr Levick, the director and sole shareholder of Priority One, instructed Marcel Syron to lower the scaffolding platform to enable Mr Syron to fit the fascia boards. That is an important feature of this case because not only was Priority One in charge of the overall site as far as the construction was concerned, but through Mr Levick, gave specific direction to Marcel Syron in relation to lowering the scaffolding platform.

[7] Mr Syron was not instructed to reinstate the scaffolding platform to its original level once the fascia boards had been fitted. The platform was lowered. However, in lowering the scaffolding, Mr Syron discovered that there were insufficient components to allow the scaffolding to be completely reinstated. In particular, sections of the guardrail which had been present earlier were missing.

[8] When the fascia boards had been fitted, Mr Syron left the scaffolding in an incomplete state and did not inform anyone of that situation. The scaffolding was not inspected by Priority One staff.

[9] On 10 September 2015, [the victim], who was employed by the roofing contractor on the site, was working on the roof. He was aware that the scaffolding had been lowered and that the guardrails had been removed. There was torrential rain that

morning, and while getting down off the roof, [the victim] slipped and slid over the edge of the roof through the gap left by one of the missing sections of the guardrail.

[10] [The victim] fell approximately 4.5 metres and was injured. He suffered a dislocated right wrist and multiple fractures to his right arm and elbow. He was hospitalised overnight. The victim impact report prepared in relation to [the victim] shows that not only did the accident have a significant physical impact on him with pins having to be inserted into his elbow, suffering ongoing pain and discomfort, but also a very considerable emotional impact.

[11] His victim impact report refers to him [personal details deleted]. The accident has had an impact on his day-to-day life, his relationship with his partner, his ability to undertake sports and other exercises. I will not go into all of the detail in the victim impact report, but for the purposes of this case, suffice to say that he has suffered very significant emotional harm and he has also suffered financial harm in respect of loss of earnings not covered by ACC.

[12] Insofar as the sentencing methodology in this case is concerned, the leading authority is the Department of Labour v Hanham & Philp Contractors Ltd1 and of course the sentencing methodology provided for in R v Taueki2.

[13] Step one is to assess the appropriate amount of reparation and there is no difficulty in this case in relation to that. The submission of the prosecution is that the appropriate reparation for emotional harm would be a sum of $15,000. That submission is accepted by counsel for Priority One and counsel for Marcel Syron, and having looked at the authorities, I accept that that is an appropriate amount.

[14] I also agree that it is appropriate that that amount be awarded; half to be paid by each of the two defendants, and the same can be said for the sum of $2822.21, being

_{loss of earnings not covered by ACC.}

1 Department of Labour v Hanham & Philp Contractors Ltd [2008] NZHC 2076; (2009) 9 NZELC 93,095

2 R v Taueki [2005] NZCA 174; [2005] 3 NZLR 372

[15] The more difficult aspect of this case concerns step two of the sentencing methodology in Department of Labour v Hanham & Philp Contractors Ltd and that is to assess the amount of the fine and that requires an assessment of culpability, having regard to the various factors referred to in Department of Labour v Hanham & Philp Contractors Ltd at paragraph [54].

[16] I also pause at this point to note that it is important to distinguish that in this case, the prosecutions brought against each defendant relate to their separate culpability. There has been some discussion during submissions as to whether there could be some global approach to culpability, with then an apportionment in relation to each of the two defendants. But the true situation here is that the cases are brought against the two defendants in respect of their separate liability and culpability, and although some of that overlaps, the two are separate.

[17] I note the observations in the case of Central Cranes Limited v Department of

Labour3 and page 11:

“The steps which are practicable for an employer to take will not, of course, necessarily be practicable for a principal to take. The Act does not contemplate that kind of equality. The employer’s responsibilities under the Act are patently greater. Whenever, however, there is a step which would be practicable for the principal to take in the circumstances of a particular case, that step is required to be taken irrespective of what steps might be required of the employer.”

[18] And further at page 12:

“If there is some step which it was practicable for the company to take the company had to take that step. It cannot distance itself from what is occurring on the work site ... simply because the employer is more directly related to and responsible for the employees carrying out the rigging work.”

[19] And later:

“As it is a matter of fact and degree in each case there may be situations, of course, where the only practicable step a principal could take would be to employ a competent contractor. But that will not necessarily be the case, and may not usually be the case, if the principle object of the Act is to be met.”

3 Central Cranes Ltd v Department of Labour [1997] 3 NZLR 694

[20] So in this case, the difference between the way in which the charges are brought between the two defendants relates, in the case of Priority One Limited, to its overall responsibilities in relation to site safety and, in this particular case, to the fact that Priority One Limited, through Mr Levick, directed Mr Syron to lower the scaffolding, did not give adequate directions in relation to the reinstatement of the scaffolding and took no steps at all to check that the scaffolding had been reinstated in a safe and effective way.

[21] In the case of Mr Syron, his culpability relates to the fact that he did not reinstate the guardrail and did not tell anyone that the scaffolding had been left in an unsafe state because of that. So in identifying the operative acts or omissions, which is the first factor to look at in assessing culpability, I note those two distinct areas of culpability in relation to each of the two defendants.

[22] The second factor is the assessment in nature of the seriousness of the risk as well as the realised risk, and obviously the risk of falling without a guardrail hardly needs to be stated. The harm that resulted to [the victim] was predictable and in fact potentially could have been much greater.

[23] The third factor is the degree of departure from standards prevailing the New Zealand industry and obviously there was a clear industry requirement that a guardrail be fitted to scaffolding in a situation like this.

[24] The fourth factor is the obviousness of the hazard and that has already been discussed, it was clearly obvious.

[25] The fifth factor is the availability, cost and effectiveness and means necessary to avoid the hazard. In this case, that is simple; simply to install the missing guardrail.

[26] The remaining two factors in relation to current knowledge of risks and the nature and severity of the harm that could result and the current state of knowledge and the means available to avoid the hazard and mitigate the risk are simple and obvious in this case.

[27] In his submissions, counsel for Worksafe submits that in the case of Priority One, the case falls within the mid range of culpability referred to Department of Labour v Hanham & Philp Contractors Ltd and that the starting point, before adjustment for mitigating factors, should be $80,000. In relation to Mr Syron, prosecution submit that the start point, before adjustment for mitigating factors, should be $40,000.

[28] This is an area that has been the subject of some debate in submissions. Counsel for Priority One submits that the taking of a starting point for his client that is double that of that for Mr Syron is really unjust and submits that the starting point should be more in line with that suggested in respect of Mr Syron.

[29] As I said before, the culpability of each needs to be assessed separately and I accept the submission of the prosecutor that the culpability of Priority One is within the medium range referred to in Department of Labour v Hanham & Philp Contractors Ltd.

[30] I take the starting point for Priority One to be $75,000 in line with sentencing examples that have been referred to by counsel and in particular the case of Worksafe New Zealand v Richdale Builders Ltd4. From that starting point, I would make a global reduction of 25 percent to cover the following factors; co-operation, previous good record, remedial action, reparation, remorse and arranging insurance cover.

[31] That would warrant a reduction of $18,750 and from that adjusted point, Priority One is entitled to full credit for its plea of guilty of 25 percent, which would warrant a reduction of $14,000, bringing the end fine down to $42,250 or round it down to $42,000.

[32] The third step in relation to Priority One is to step back and assess whether the overall financial impact of the fine and reparation is appropriate, and in this case I

_{regard it as being appropriate. In the case of Priority One, the company will be fined}

4 Worksafe New Zealand v Richdale Builders Ltd [2016] NZDC 13058

$42,000 and ordered to pay reparation of $8942, being half of the emotional harm and half of the loss of wages not covered by ACC.

[33] In relation to Mr Syron, I accept the prosecutor’s submission that the appropriate starting point is $40,000. I accept that Mr Syron was the one who was immediately responsible for the failure to fit the guardrail after the scaffolding had been lowered. Although he is an independent contractor, his situation is more akin to an employee because, first of all, he was working under the direction of Priority One and Priority One had given him specific direction in relation to the lowering of this scaffold.

[34] Priority One, in my view, does have the overriding responsibility to ensure the safety on the site and in particular had particular responsibility to ensure that this subcontractor had carried out the instruction to lower the scaffolding and reinstate it in a safe way. So there is a principled basis for the distinction in the starting points that have been submitted by the prosecutor.

[35] From that starting point of $40,000, I make again a global reduction of

25 percent to cover those matters of co-operation with the prosecution, previous good record, remedial action, the reparation and the arranging insurance cover and remorse, which would mean a reduction of $10,000 to bring the starting point down to $30,000, from which Mr Syron is entitled to a full reduction for his plea of guilty, a 25 percent reduction or $7500 to bring the fine down to $22,500.

[36] In the case of Mr Syron, he will be fined $22,500 and ordered to pay reparation of $8942, being half of the reparation for emotional harm and for loss of wages not covered by ACC.

[37] I step back and then assess the total impact of the fine and reparation on

Mr Syron. I have seen his financial accounts and it is fair to say that his overall financial position is not healthy. There are two ways that I could look at making allowance for that state; one is to reduce the fine and the other is to provide for a means to pay it by instalments.

[38] In this case, I think the latter course is the appropriate one and the fine in his case can be paid at the rate of $100 per week, the first payment being due in 28 days time. The reparation in each of the cases of each defendant before the Court is covered by insurance and there needs to be no order for payment there by instalments. Finally, there will be an order for the Court costs in respect of each defendant in the sum $130.

P W Cooper

District Court Judge