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WorkSafe New Zealand v Alto Packaging Limited [2019] NZDC 14809 (1 August 2019)

Last Updated: 1 October 2019

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


IN THE DISTRICT COURT AT NORTH SHORE

I TE KŌTI-Ā-ROHE KI ŌKAHUKURA
CRI-2018-044-003608 [2019] NZDC 14809

WORKSAFE NEW ZEALAND
Prosecutor

v

ALTO PACKAGING LIMITED
Defendant

Hearing:
16 July 2019
Appearances:
N M Self for WorkSafe New Zealand D Erickson for the Defendant
Judgment:
1 August 2019

RESERVED JUDGMENT OF JUDGE D A BURNS

[In relation to reparation and fine in a WorkSafe prosecution]

The charge


[1] Alto Packaging Limited having its registered office in Hamilton (“the Company”) is the subject of a charge under ss 36(1)(a), 40(8)(1) and 2(c) of the Health and Safety at Work Act 2015 (“the Act”). The company is charged that on or about 3 October 2017 at Albany being a PCBU having a duty to ensure so far as reasonably practicable the safety of workers who work for the PCBU, including [the victim], while the workers were at work in the business or undertaking, namely while operating a Sencorp Extrusion Coating Line machine, did fail to comply with that duty, and that

WORKSAFE NEW ZEALAND v ALTO PACKAGING LIM ITED [2019] NZDC 14809 [1 August 2019]

failure exposed the workers to a risk of serious injury arising from exposure to a crushing hazard created by unguarded counter-rotating rollers inside the machine.


Particulars


[2] It was reasonably practicable for Alto Packaging Limited to have:

[3] The charge was laid at the North Shore District Court on 9 November 2018. After a number of appearances a guilty plea was entered to the charge and the case set down for sentencing on 16 July 2019.

[4] The Court received comprehensive written submissions from counsel for the prosecution together with supporting case law and submissions with appropriate reference to the case law from Mr Erickson. In addition, the Court received an affidavit from Dawie Bester the operations manager for the company with respect to the Albany site and an affirmation from Keith Sinton dated 9 July 2019 being the business unit manager for the company in respect of the Albany site. In addition, the Court was provided with a comprehensive summary of facts together with a victim impact statement. There was one disputed fact in the summary which was not resolved between the parties which is the subject of a memorandum from Mr Erickson dated 11 June 2019. In the memorandum an indication was sought in accordance with s 24(2)(a) of the Sentencing Act 2002 as to the weight (if any) that would likely attach to the disputed fact if it was found to exist and its significance at sentence or other disposition of the case. I find that the disputed fact would not have an impact on the

outcome of sentencing and therefore did not order a disputed fact hearing for that reason.


Summary of the facts


[5] On 2 October 2017 [the victim] was working on the night shift with the yellow team. Shifts were 12 hours long at the time. The product the team was running was a new variation of an existing product on the Sencorp Extruder Line machine (“the machine”). At least two members of the six-person team were inexperienced with the machine.

[6] The team was being supervised by a team leader and an experienced operator was operating the machine. [The victim] was also experienced with the operation of the machine, but was not the designated operator on this occasion.

[7] On the particular night there were a lot of line breaks. It is estimated there were between six to nine line breaks. [The victim] was concerned about a risk of fire due to the build-up butane gas and the material in the area due to the line breaks. The workers were particularly busy trying to get the material set-up correctly, and [the victim] felt that this was not helped by the inexperience two of the team members had with the machine.

[8] At around 2.15am on 3 October 2017 [the victim] pulled the material through the coating line and proceeded to thread the material into the coating line rollers. The rollers had not been re-opened. [The victim]’s fingers got caught in the rollers as he was attempting to feed the material through the in-running rollers.

[9] The other team members did not initially realise [the victim] was injured. [The victim] went off to the office to look for first aid, but could not find any bandages. He went back to the team, at which point they realised the severity of his injuries and shut down the machine.
[10] No ambulance was called and [the victim] was driven to the North Shore Hospital by one of the team members. He was then transferred to Middlemore Hospital where he underwent surgery. The tips of [the victim]’s right hand middle and ring fingers were removed, including the first knuckle on both fingers.

Sentencing criteria


[11] Section 151(1) of the Act sets out specific sentencing criteria to be applied:

[12] The Court has to apply ss 7-10 of the Sentencing Act 2002. The Court needs to consider accountability, denunciation and deterrence both in relation to this offender and generally. The Court must also take into account the effect of the offending on the victim, the gravity and degree of culpability whilst also imposing the least restrictive outcome that is appropriate in the circumstances.

[13] Section 151(2)(b) of the Act also requires the Court to have particular regard to the purpose of the Act. In particular, any sentence imposed reflects the Act’s intention of securing the health and safety of workers and workplaces, and must reflect

the principle that workers and other persons should be given the highest level of protection against harm to their health, safety, and welfare, as is reasonably practicable.1


[14] Both counsel made reference to the recent guideline judgment of the Full Court of the High Court under s 48 of the Act in the case of Stumpmaster v WorkSafe New Zealand2 The Court confirmed there are four steps:3

[15] Both counsel followed this guideline judgment in their submissions.

Step 1 – assessing quantum of reparation


[16] Sections 32 to 38 of the Sentencing Act 2002 deals with reparation. Reparation may be imposed in relation to loss of or damage to property, emotional harm, and relevant consequential loss or damage.

[17] The victim impact statement from [the victim] is handwritten and is comprehensive. [The victim] received crushing injuries to his right hand, middle and ring fingers. The tips of the fingers were amputated, and [the victim] no longer has fingernails on those fingers. He was in a lot of pain post-surgery, and was required to

1 Section 3 of the Health and Safety at Work Act 2015.

2 [2018] NZHC 2020 at [65] – [66].

3 Paragraphs [3] and [35].

take antibiotics to prevent infection. After returning to work on light duties, [the victim]’s fingers became infected twice, which required him to take sick leave.


[18] I observe that as at the date of sentencing he continues to work for the company.

[19] [The victim] received ACC while he was off work and was paid the ACC shortfall by the defendant at the time. In accordance with the Act ACC does not cover the first week after the incident and [the victim] only received 20% from the defendant. In Mr Erickson’s submissions he has indicated that this was a mistake by the company and it has been rectified. The shortfall was sought by prosecutions but I understand from Mr Erickson’s submissions that this has been resolved. Therefore I do not propose to make an order. However if this is not the case leave is given for further application to be made to me for an order if it becomes necessary.

[20] The prosecution point out that post the injury there was a change from twelve to eight hour shifts for work as well as less ability to take up overtime due to injuries so [the victim] earned less post the incident. It is also pointed out that he suffered a lot of stress during this time as he was the only income earner for his family and he has a wife and [multiple] children.

[21] [The victim] had exemption from work until 14 January 2018 but was asked to return to work a few weeks after the incident by the defendant on “light duties”. He continued to only receive the 20% ACC shortfall from the defendant during this period of light duties. In addition, at any time his fingers were knocked it caused him a lot of pain and discomfort. He required ongoing physiotherapy. He could not drive for the first few weeks after the incident and was reliant on ACC funded taxis or family members to get him to appointments. In the months after the incident, driving was still difficult due to knocking his fingers on the steering wheels or indicators. In addition, he is righthand dominant and has reported that the incident has affected his ability to write, use cutlery and grip small items. He also used to play the guitar but this is not the same anymore without his fingertips. There are still tasks at his work that he cannot complete without assistance due to gripping issues. He reports feeling embarrassed and a degree of sadness at the loss of his fingertips particularly at work. He tries to hide his fingers in public.
[22] Ms Self provided submissions in relation to emotional harm reparation and made reference to some other cases. I set out paragraphs 5.7 – 5.9 inclusive of her submissions:

A worker suffered partial amputation of his right index and middle fingers. Emotional harm reparation of $10,000 ($22,000 having already been paid to the victim).


(b) Work Safe New Zealand v Niagara Sawmilling5

A worker suffered partial amputation of his right index and middle fingers and a shoulder injury. Emotional harm reparation of $27,000 ($5,000 having already been paid to the victim).


(c) Work Safe New Zealand v ITW New Zealand6

A worker suffered amputation of his left little, ring and middle fingers and the tip of his index finger. Emotional harm reparation of $32,500 was awarded.


(d) Work Safe New Zealand v Marshall Industries Limited7

A worker suffered amputation of the tips of his right forefinger, index finger, his left little, ring and middle fingers and the tip of his index finger. Emotional harm reparation of

$10,000 was awarded ($25,000 having already been paid to the victim).


[23] Mr Erickson in reply submitted as follows and I set out paragraphs 22 – 24:

4 Work Safe New Zealand v Alliance Group Limited, DC Invercargill, CRI-2018-025-002064, 6 June 2019 before Her Honour Judge Farnan.

5 Work Safe New Zealand v Niagara Sawmilling Company Limited [2018] NZDC 3667.

6 Work Safe New Zealand v ITW New Zealand [2017] NSDC 27830.

7 Work Safe New Zealand v Marshall Industries Limited [2018] NZDC 4498.

  1. In acknowledgement of the emotional harm [the victim] has suffered as a result of this incident, Alto has made a compensatory payment of

$25,000 to [the victim].


  1. Counsel for WorkSafe has referred the Court to a number of cases as comparable to the facts of this matter. It is submitted that the most similar of those cases in respect of facts and harm suffered are Work Safe New Zealand v Alliance Group Limited and Work Safe New Zealand v Niagara Sawmilling, in each of which the appropriate total reparation payable was deemed to be $32,000.
  2. In all the circumstances, it is submitted that a total reparation payment of $32,000 would be appropriate, being an additional payment of

$7,000.


[24] In addition Ms Self provided me with sentencing notes from Judge Farnan in WorkSafe v Alliance Group Limited issued8 on 6 June 2019 where the victim had two fingers on his righthand partially amputated by a rotating cutter while he was cleaning the mincer box of beef boning in the hogging machine. The level of injury in that case was very similar to [the victim]’s injuries.

[25] The company in that case had paid $22,000 to the victim. Judge Farnan ordered there to be a total of $32,000 paid for emotional harm reparation being an additional $10,000. No additional consequential loss was ordered in that case because it had already been paid.

[26] Ms Self submits that the most analogous case to the facts of this case is the decision of Judge B M McIntosh in WorkSafe New Zealand v ITW New Zealand9 Her Honour recorded that in cases of similar significant distress and simila r considerations the range of reparation had been $30,000 - $35,000. In that case she ordered $32,500 with an ACC top-up.

[27] Taking into account the facts in the decision of Judge Farnan and the decision of Judge McIntosh. I fix the amount of emotional harm reparation in the sum of

$32,500 and order accordingly.

8 Work Safe New Zealand v Alliance Group Limited [2019] NZDC 10924.

9 Work Safe New Zealand v ITW New Zealand [2017] NZDC 27830.

Consequential loss


[28] I understand from Mr Erickson that this has been dealt with and if this is incorrect then leave is given to reapply.

Step 2 – assessing the quantum of fine


[29] The Court is required to consider the orthodox sentencing approach as set out in R v Taueki in fixing a starting point (based on culpability) for the offending and then adjusting the starting point upwards or downwards for aggravating and mitigat ing factors.10 This approach was confirmed in Stumpmaster which set out four guideline bands for culpability:

[30] In terms of relevant considerations for assessing culpability, the Court in Stumpmaster referred to the well-known list of relevant factors from the guideli ne judgment under the earlier legislation, Department of Labour v Hanham and Philp Contractors Limited13 observing that the Hanham factors are well-known and little will be gained by rewording them. There is nothing in HSWA that requires it.14 These factors, and the relevant factors specified in s 151 of the Act are addressed below.

10 R v Taueki [2005] NZCA 174; [2005] 3 NZLR 372 (CA).

11 The Court observed at [52] that low culpability cases “will typically involve a minor slip up from a business otherwise carrying out its duties in the correct manner. It is unlikely actual harm will have occurred, or if it has it will be comparatively minor”.

12 The Court noted at [66] “We consider it likely that under the new bands a starting point of $500,000

to $600,000 will be common”.

13 Department of Labour v Hanham & Philp Contractors Ltd [2008] NZHC 2076; (2008) 6 NZELR 79.

14 At [37].

[31] Mr Erickson accepted that this was the appropriate approach and counsel were ad idem. Going through the factors as follows.

The identification of the operative acts or omissions at issue and the practicable steps it was reasonable for Alto to have taken


[32] Ms Self set out her submissions in relation to this factor in paragraph 6.3 as follows:
[33] Mr Erickson addressed this issue in paragraphs 32 – 34 of his submissions as follows:
  1. WorkSafe’s Best Practice Guidelines – Safe Use of Machinery provide that risk assessments should be carried out by people with the right information, knowledge and experience of the work environment and work processes.
  2. In this case, the risk assessments were undertaken by experienced staff, and the most recent relevant risk assessment was carried out by Alto employees who were both experienced engineers. This was not a case of Alto wilfully avoiding its responsibilities; it believed it was fulfilling its duty. However, it is acknowledged that these engineers did not have specific expertise in the relevant machinery guarding standards at the time the assessment was carried out, and the assistance of an external expert should have been sought.
  3. In pleading guilty to this matter Alto accepts its failing in respect of the reasonably practicable steps it could have taken to avoid this incident.

[34] I find that the company did not wilfully avoid its responsibilities but should have engaged external experts with appropriate experience and expertise and had they done so it is likely that remedial steps would have been taken which would have

avoided the incident. Accordingly I accept the concession made by Mr Erickson that Alto failed in respect of the reasonably practicable steps it could have taken to avoid the incident.


The risk of and the potential for, illness, injury or death that could have occurred


[35] Ms Self submitted in paragraphs 6.4 and 6.5 as follows:

[36] Mr Erickson addressed this issue in paragraphs 35 -37 of his submissions:
  1. Alto accepts unequivocally that there is a risk of serious harm to workers if machinery is not guarded adequately. Furthermore, the circumstances of the incident and [the victim]’s resulting injuries confirm the exact nature of the risk that existed to the person undertaking the task that he was doing.
  2. However, Alto does not accept that the potential for harm to the other four workers was probable, as submitted by WorkSafe. The charge relates to a specific part of the machine, which these workers were not working on. They were not performing the same role as [the victim], would not have undertaken the task that he did, and were therefore not exposed to the particular risks that it involved.
  3. While it is correct to say that any other worker undertaking [the victim]’s role and associated tasks would have been subject to the same risks, it overstates the circumstances of the incident to say that all of the other workers assisting on the machine on the night of the incident were also exposed. There were conducting different tasks, and the fact that they were not trained specifically in respect of the machine concerned (although they were in relation to others) did not expose them to any greater risk in the context of the work they were doing. Furthermore, in contrast to the workers in the cases cited on by WorkSafe, Alto’s workers were supervised by trained employees in respect of those tasks, and Alto was acting in compliance with AS/NZS 4024 in this respect.
[37] The Court finds that because of the nature of the machinery involved there is an inherent risk to workers if the machinery was not properly guarded. The incident confirms the risk. It follows therefore that I do not accept the argument presented by Mr Erickson that the potential for harm to the other four workers was not probable. I accept the submissions made by Ms Self in this respect. Whilst on this particular night [the victim] was the only person working on this specific part of the machinery this could have been different on any other night and the Court has to have regard to the general risk as well as the specific risk. I accept on this particular occasion the other workers were not exposed to the risk that [the victim] was but the purpose of the prosecution is to be a deterrent to ensure that all appropriate steps are taken to minimise or mitigate the risk. I do accept however on the particular night it was [the victim]’s role which exposed him to this specific risk but in my view there is likely to be rotation of tasks on different shifts exposing other workers to the same risk. I do however accept on the particular occasion there were trained employees in respect of the task and that Alto was acting in compliance with AS/NZS 4024.

Whether death, serious injury or serious illness occurred or reasonably have been expected to have occurred


[38] Ms Self addressed this factor in paragraphs 6.6 – 6.7

[39] This factor was addressed by Mr Erickson in paragraphs 35 – 37 above. Mr Erickson argues that the position of the prosecution was overstated. I do not accept his submissions in this regard. Another worker undertaking a similar role to [the victim] will be similarly at risk.

Degree of departure from standards prevailing in the relevant industry


[40] Ms Self addressed this issue in paragraphs 6.8 – 6.11 of her submissions:

[41] This was addressed by Mr Erickson at paragraphs 38 and 39 of his submissio ns.
  1. Alto accepts its failure to meet the required standards in respect of machine guarding, as outlined in the Prosecutor’s submissions.
  2. Alto acknowledges that the risks associated with inadequate guarding are well known and are a particular focus for WorkSafe. Cases involving inadequate guarding and resulting in injury, such as this one, have usually placed culpability in the medium band on the basis that ‘[the need to adequately guard machinery] is a fundamental one, long recognised’.

Essentially there is agreement between counsel that the degree of culpability places the fine level in the medium band on the basis that the “there is need to adequately

guard machinery (is a fundamental one long recognised)”15 Accordingly I find that the culpability should be placed in the medium band for that reason.


The obviousness of the hazard


[42] Ms Self submitted in paragraphs 6.12 as follows:

[43] Mr Erickson submitted in paragraphs 40 – 44 of his submissions as follows:
  1. It is accepted that the risks arising from exposure to moving parts or machinery are well known.
  2. However, while the hazards associated with unguarded or inadequately guarded machinery can be obvious, it is submitted that oversimplifies the situation to say that is always the case.
  3. In this case, the process [the victim] was performing at the time of the incident was one required relatively infrequently, generally once a week .
  4. The manner in which the machine was being run when the incident occurred – namely with the rollers closed – was contrary to its usual mode of operation.
  5. Further, the risks were not immediately obvious to WorkSafe, even following the incident. WorkSafe allowed Alto to continue using the machine. It was not until seven months later, and following the involvement of its expert, that WorkSafe identified the risks and issued an Improvement Notice.

[44] I take into account the submissions made by Mr Erickson in relation to the level and degree of risk.

15 Stumpmaster v Work Safe New Zealand [2018] NZHC 2020 at [94]. The starting point for the relevant company (Niagara Sawmilling Ltd) was $500,000. See also Work Safe New Zealand v Atlas Concrete Ltd [2017] NZDC 27233, where the starting point was $300,000: The risk of entanglement associated with conveyor belts and roller nip points are widely understood within the industry. There is a large volume of information published by WorkSafe and other regulators regarding that risk and machinery guarding in general. See also Work Safe New Zealand v Kaye’s Bakery Ltd [2018] NZDC 5427.

The means necessary to avoid the hazard were available and cost effective


[45] There is no issue for me to resolve in this case because Mr Erickson accepts on behalf of the company that Alto acknowledges they had the means to address any hazard issues and take steps to avoid.

The current state of knowledge of the risks, the nature and severity of harm and the means available to avoid the hazard or mitigate the risk of its occurrence


[46] Ms Self submitted as follows in paragraphs 6.14.

6.14 As outlined above, the risks associated with machinery are well known and considerable guidance is available to assist duty-holders in managing these risks. Further, the Defendant is a large company with a presence across New Zealand and Australia. There have a number of similar machine guarding incidents or near misses at other sites in New Zealand. Each new incident or near miss increases the foreseeability of serious injury and should be treated as an opportunity to re-assess current controls.


[47] Essentially this position is accepted by Mr Erickson and there is no issue for me to resolve.

Starting point


[48] Ms Self submits that an appropriate starting point is $550,000. She has set out by way of summary case references that she considers appropriately inform the Court as to the appropriate starting point. I set out paragraphs 6.16 of her submissions as follows:

6.16 The Court may find the following High Court authorities and recent HSWA decisions of assistance in determining relative culpability bands:

Case
Summary
Findings
HSWA – High Court

Stumpmaster – Niagara
Sawmilling Company
Limited appeal
The victim’s glove was caught in a wood grader/trimmer machine, amputating two fingers. The machine was partially, but inadequately guarded (with access to one side of
machine prevented but not the other). An external consultant had recommended changes, but the defendant’s health and safety advisor disagreed considering it would cause other risks.
The High Court found the failure to guard machinery was a fundamental breach, referring to other guarding cases on different types of plant.16
The Court agreed culpability fell within medium culpability band and upheld the starting point of $500,000.
The Court found the 15% uplift for three previous offences was “the least available” and the reduction of 25% mitigation was “too high” in the circumstances. The defendant had been “fortunate in the sentencing exercise” and the appeal was dismissed.17
HSWA - post
Stumpmaster

Work Safe New Zealand v
Carter Holt Harvey Limited18
The victim was advised that the automatic tracking system was not operating and was instructed to manually track the conveyor belt. The victim did this and as he leaned into the machine the top shuttle nose belt suddenly moved forward and crushed the victim’s chest between the motor and frame of the machine.
The defendant failed to: ensure the press layup area was effectively guarded on both sides; the machine was secured against inadvertent movement; and to develop and implement procedures for
manually tracking belts.
The District Court assessed culpability as in the medium to high range and adopted a starting point of $600,000. The Court considered the case more serious than
Niagara as the victim in Niagara was going about his ordinary duties whereas this was something out of the ordinary and the victim in Niagara was accessing the machinery with his hand or lower part of his arm whereas in this case the victim’s body was at risk.

16 Supra n 1, at [94].

17 Ibid., at [97].

18 Work Safe New Zealand v Carter Holt Harvey Limited [2018] NZDC 22605.

HSWA - post
Stumpmaster

Work Safe New Zealand v Alliance Group Limited19
The victim was operating a screw conveyor and opened the sliding cover to access and clear blockages from the box section. In doing so, his hand came into contact with a rotating screw and his hand was amputated.
The District Court found there was a fundamental breach not to adequately guard the machine even though it may not have been anticipated by the defendant that a worker would have wanted to put their hand in the machinery.
The Court was also influenced by the fact that the defendant had only been employed with the defendant five days with little or inadequate training in respect of the machine when determining culpability.
The Court considered this case more serious than Niagara and a starting point of $550,000 was adopted.
HSWA
Work Safe New Zealand v Alliance Group Limited20
The victim lost the tips of two of his fingers after his right hand came into contact with a rotating cutter while he was cleaning the mincer box of a beef boning machine. The Defendant’s primary failures involved: failure to adequately guard moving machinery; failure to adequately train workers and failure to have ensured adequate emergency procedures were in place to cover workers working alone.
The District Court assessed culpability as in the medium band and adopted a starting point for the fine of $500,000.

19 Work Safe New Zealand v Alliance Group Limited [2018] NZDC 20916.

20 Supra n 6.

[49] Mr Erickson referred to some additional cases and I set out paragraph 47 of his submissions. There is some crossover.
Case
Details
Starting point (inc
relevant factors)
Niagara Sawmilling (High Court) 9 August 201821 (one of the Stumpmaster defendants)
Grader/trimmer machine. Fixed guard not adequate. External specialist recommended changes.
Internal H&S adviser disagreed, so no changes implemented.
Worker attempting to clear jam by hand. Glove caught. Two fingers partially amputated.
Medium - $500,000

Need to adequately guard is fundamental and long recognised.

External adviser had recognised risk and recommended changes.

Company’s own solution obviously
inadequate.
Alliance Group (District Court) 26 September 201822
Employee opened sliding cover to access
and clear any blockages from box section of screw conveyor. Placed right hand inside open box section and hand came into contact with a rotating screw and was amputated.
Medium - $550,000

“...worse than
Niagara Sawmilling”
(see below)

Fundamental breach: obvious and well- known hazard.

Employee only working there five days and received little or inadequate

21 Stumpmaster v Work Safe [2018] NZHC 2020.

22 Work Safe New Zealand v Alliance Group Limited [2018] NZDC 20916.

training.

No written procedure to follow, and working alone and unsupervised.

Risk of serious harm that could have been much worse.

Significant departure from industry

standards.

Allflex Packaging (District Court) 15 October 201823

Film travelling through nip point became creased.

Worker attempted to flatten while machine was operating. Hand pulled in to nip point and crushed. Crush injuries to right hand.

Medium - $480,000

Guard removed, placed in a storeroom cupboard and not replaced.

No effective hazard or risk assessment conducted on machine. No specific procedures, safe systems of work or standard operating procedures for machine.

No signs with instructions or warning of dangers.


23 Work Safe New Zealand v Allflex Pack aging Ltd, DC Manukau, 15/10/2018, Judge Harvey, CRI- 2017-092-14520.

Company only located instruction manual post incident, which contained very limited safety information. This had never been seen by victim.

Employee had inadequate training on machine, and no training or

instruction in relation to hazard. No assessment of training or competence undertaken by company.

Neither company nor factory supervisor had experience with machines. Relied on

operators to identify hazards.

Eurocell Wood Products Ltd

(District Court) 19 October 201824

Employee saw through

authorised entry sound room window that planer had a blockage. Entered without authorisation, reached into planer underneath guard to pull out obstruction. Made

contact with cutter head

Starting point

‘towards the higher end of the medium band’: $450,000

Obvious risk, and awareness of hazard, but failure to develop


24 Work Safe New Zealand v Eurocell Wood Products Limited [2018] NZDC 21568.

while planer operating,

resulting in complete amputation of left thumb and

safe system of work.

Failure to comply

lacerations to left hand.

with guarding standard and reliance upon administrative controls.


Although restricted access to sound


room, workers with approved access still exposed to risk.


Risk to others who ignored administrative


controls would have been significantly

minimised by


interlocks on the

door entry.

Carter Holt Harvey Ltd (District Court) 31 October 201825

Automatic tracking system not operating and workers

instructed to manually track

Top end of medium or the low end of

band 3: starting point


shuttle nose belt while process line stopped for

product change. Employee

of $600,000

Risk for very serious


leaned into the machine with his torso resting on the frame

of the machine and his feet

injury or death: employee ‘came as

close to death as was


off the floor to reach bolts on underside of conveyor belt. Top shuttle nose belt

suddenly moved forward and

possible without actually dying.’


25 Work Safe New Zealand v Carter Holt Harvey Limited [2018] NZDC 22605.

collided employee’s chest causing chest and shoulder region to be crushed between motor and the frame of machine.


Nicks Components (District

Court) 13 December 201826

Employee was feeding

weatherboard through

Starting point

$500,000


moulding machine with assistance of push stick.

Stick got caught inside


Reasonably practicable for


machine. Pushed emergency

stop button to stop it. Co- worker opened hood guard

defendant to

determine inadequate guarding in place.


and cutters still rotating but victim wearing earmuffs and did not hear or notice.

Placed right hand into


Should have been

reasonably obvious that nature and


machine to remove wedged

stick. Glove caught by rotating cutters and hand

seriousness of harm was significant.

Hazard reasonably


pulled into the machine.

obvious.


Suffered a mutilating injury to right hand, including

Means to avoid hazard easily


degloving and traumatic amputation right thumb, half

of right distal index finger

available and cost- effective.


and tip of middle finger.

Associated risks with cutting machinery

well-known and



widespread.

Cottonsoft Limited (District

Court) 18 December 201827

Worker’s arms became

caught in unguarded print

Cusp of medium to

high band - $600,000


26 Work Safe New Zealand v Nicks Components & Accessories Ltd [2018] NZDC 26212.

27 Work Safe New Zealand v Cottonsoft Limited [2019] NZDC 1851.

rollers. Pulled right arm free

but left arm trapped and required intervention of fire


Company had assessed hazards of

service to release.

Massive crush injuries sustained to both hands and arms. Right arm degloved

machine and identified need to fit guarding and

fencing.

from elbow to wrist. Degloving also on parts of

hand. Lacerations, wounds


Action not implemented due to

to bone and damage to palm of left hand. Rib fractures.

Long term physical effects

management and staffing changes.

caused unstable thumb requiring surgery.

Employee still unable to

return to work at point of

Prior incident occurred in Feb 2016 and company

submitted report to

sentencing.

WorkSafe that guarding would be

installed by May


2016.



Not given sufficient


urgency, so not completed at time of this incident in Jan

2017. No assessment


of interim measures

to manage risks.

Alliance Group (District Court) 6

June 2019

Employee was cleaning

mincer box of beef boning

Medium - $500,000


hogger machine.

Had received one two hour training on how to conduct

No written procedures for operation or clean-up

of machine.


clean-up. Consisted of

watching somebody else clean machine. Hazard had not been identified to him, and was not aware of rotating cutter on other side of mincer plate.

Right hand came into contact with rotating cutter while cleaning mincer box. Two fingers partially amputated.

Working alone and unsupervised. He drove himself to hospital after the incident as he was unable to find anyone to assist him.

Failure to adequately guard moving machinery.

Failure to adequately train worker involved in accident.

Failure to ensure adequate emergency procedures in place to cover workers working alone.


[50] Ms Self submitted that the analogous case to the present is the decision of Judge McIntosh in WorkSafe New Zealand v ITW New Zealand. She submitted there were many similarities with the decision of Judge Farnan in WorkSafe New Zealand v Alliance Group Limited. In the Alliance Group case Judge Farnan for the reasons set out in the judgment assessed the starting point at $500,000. Judge McIntosh assessed the starting point at $450,000.

[51] Mr Erickson submitted that the most analogous case was the Niagara Sawmilling case.

[52] I find that the appropriate starting point in this case is $500,000 for the following reasons:

terms of the level of injury and the exposure to risk. Also similar to

ITW New Zealand and Niagara Sawmilling.


Aggravating factors


[53] Both counsel agree that there are no aggravating features for the Court to take into account.

Mitigating factors


[54] Ms Self submitted in relation to mitigating factors in paras 6.20 – 6.27 as follows:

“a discount of 30% is only to be expected in cases that exhibit all the mitigating factors to a moderate degree, or one or more of them to a high degree”.


6.22 The Prosecutor submits that discounts are available for:

April 2014. All the Notices related to guarding issues and inadequate risk assessment processes.


(e) Remedial steps – 0%. The remedial actions taken by the Defendant after the incident are detailed at paragraphs 53-54 of the Summary of Facts. The High Court in Stumpmaster emphasised the need to correlate what was being done to the nature and level of the underlying deficit that led to the accident:

“...In other words, were the reformative steps going an extra mile, or at the other extreme merely correcting what were woeful deficits that should never have existed in the first place? As a potential example of the former, we note in one case the employer closed their mine for a week at a cost of over $1 million to implement immediate changes.”


(f) The Prosecutor submits that the actions by the Defendant post-incident do no go the “extra mile” and were in response, in part, to lift an Improvement Notice that was issued. The steps taken were re-active rather than pro-active in nature, and the Prosecutor submits that no discount should be available.

6.23 Accordingly, the Prosecutor submits that a reduction of 10% may be available to reflect the Defendant’s reparation payments and cooperation.

6.24 From a provisional starting point of $550,000, a 10% reduction would provide a provisional fine of $495,000.

Guilty plea


6.25 In Hessell v R the Supreme Court held that the allowance that can and should be given for a guilty plea depends upon an evaluation of all the circumstances in which the plea is entered, including whether it is truly to be regarded as an early or late plea, and the strength of the prosecution case. The reduction for a guilty plea should not exceed 25%.

6.26 The Defendant entered a guilty plea at an early opportunity and the Prosecutor submits a 25% discount for the guilty plea is appropriate.

6.27 h1From the adjusted starting point of $495,000, this would result in an end fine of $371,250.

[55] Mr Erickson submitted in paragraphs 51 – 65 in relation to mitigating factors as follows:
  1. It is submitted that the following discounts are appropriate:
    1. Reparation
  2. Counsel agrees with WorkSafe’s submission that a five per cent discount is appropriate.
  1. Remorse
    1. Alto does not accept WorkSafe’s assessment of this factor.
    2. The issues raised in [the victim]’s victim impact statement in relation to his readiness to return to work have been addressed above. The fact that he may have felt this personal pressure was not communicated to Alto and should not be held against it.
    3. Alto expressed its genuine remorse for this incident to [the victim] as soon as it occurred. This has been repeated on behalf of the company in Mr Sinton’s affirmation. Furthermore, had a restorative justice conference taken place, the company would have had further opportunity to express directly to [the victim] the responsibility it takes for its offending.
    4. It is submitted that a five per cent discount should be applied.
      1. Cooperation with the investigation
    5. Alto has cooperated fully with WorkSafe throughout, and agrees with the recommendation of a five per cent discount.
      1. Previous safety record
    6. WorkSafe’s position on this issue is not accepted. While Alto has previously received Notices from WorkSafe, it has always acted promptly to address any issues raised.
    7. Alto has a long history of operation in New Zealand and has never previously been prosecuted. It is a company that takes its health and safety obligations very seriously. The position taken in similar circumstances in Cottonsoft was to allow a discount of five per cent. It is submitted that this would also be the appropriate discount in this case.
      1. Remedial steps
    8. Alto does not agree with WorkSafe’s assessment of this factor. It acknowledges that many of the remedial steps taken were to correct the previous inadequacies, but it is submitted that Alto did not simply stop there.
    9. As detailed in Mr Sinton’s affirmation, although WorkSafe had permitted continued use of the machine and had not served an Improvement Notice, Alto took a number of immediate steps to address the safety issues . When the Improvement Notice was subsequently served in May 2018, Alto worked with its own expert to recommend improvements to ensure that the machine was compliant. All of the recommendations were implemented
    10. However, when the Improvement Notice was subsequently lifted, Alto continued to hold discussions with WorkSafe in order to ensure that they had done everything possible to make the machine as safe as it could be. In these discussions Mr Sinton was advised that WorkSafe’s

expert felt more could be done to stop accidental risks around the rollers; however, WorkSafe would not say what these options were.


  1. After conducting considerable further analysis with its own expert, Alto took the additional action of installing two light beams, which immediately stop the machine if broken. This was not something requested by WorkSafe but was a step that Alto took over and above what was required in order to minimise the risk as far as possible.
  2. It is therefore not the case that Alto’s steps were simply reactive and not proactive, or merely a response to the Improvement Notice. It is submitted that, even after the Improvement Notice had been lifted, Alto did in fact go ‘the “extra mile”’ to ensure the safety of the machine.
  3. For these reasons, a discount of five per cent is appropriate.
[56] I find as follows in relation to mitigating factors.

Reparation


[57] Both counsel agree that a 5% discount is appropriate for the reparation paid. I find accordingly.

Remorse


[58] Prosecution submit zero allowance for remorse. Mr Erickson submits there should be a 5% discount. I find and allow a 5% discount for remorse and I take into account the two affidavits which have been filed in this case and accept that there is a genuine expression of remorse by the company. The fact that the victim continues to work for the company gives me confidence that there has been an attitudinal change.

Cooperation


[59] Both counsel accept and agree on a 5% discount for cooperation and I agree. I find accordingly.

Previous safety record


[60] The evidence provided in support of the company says that the company received four improvement notices from WorkSafe previously and have acted

promptly to address the issues raised. It is contended that Alto has a long history of operation in Albany has never previously been prosecuted. That the company takes its safety obligations very seriously.


[61] Mr Erickson argues that the position is very similar to the Cottonsoft case where a discount of 5% was allowed in that case. I take into account what is said in the affidavit by both senior executives of the company and I accept the submissio ns made by Mr Erickson and allow for a 5% discount. I take into account that there have been four improvement notices issued for the Albany site but the evidence is that the issues were addressed promptly and I see that no prosecution has been taken.

Remedial steps


[62] The submissions in relation to this heading are set out in paragraphs (e) and (f) of Ms Self’s submissions as follows:

“...In other words, were the reformative steps going an extra mile, or at the other extreme merely correcting what were woeful deficits that should never have existed in the first place? As a potential example of the former, we note in one case the employer closed their mine for a week at a cost of over $1 million to implement immediate changes.”


(f) The Prosecutor submits that the actions by the Defendant post- incident do no go the “extra mile” and were in response, in part, to lift an Improvement Notice that was issued. The steps taken were re- active rather than pro-active in nature, and the Prosecutor submits that no discount should be available.

[63] Mr Erickson addressed this in paragraphs 60 -65 of his submissions:

60 Alto does not agree with WorkSafe’s assessment of this factor. It acknowledges that many of the remedial steps taken were to correct the previous inadequacies, but it is submitted that Alto did not simply stop there.


  1. As detailed in Mr Sinton’s affirmation, although WorkSafe had permitted continued use of the machine and had not served an Improvement Notice, Alto took a number of immediate steps to

address the safety issues. When the Improvement Notice was subsequently served in May 2018, Alto worked with its own expert to recommend improvements to ensure that the machine was compliant. All of the recommendations were implemented.


  1. However, when the Improvement Notice was subsequently lifted, Alto continued to hold discussions with WorkSafe in order to ensure that they had done everything possible to make the machine as safe as it could be. In these discussions Mr Sinton was advised that WorkSafe’s expert felt more could be done to stop accidental risks around the rollers; however, WorkSafe would not say what these options were .
  2. After conducting considerable further analysis with its own expert, Alto took the additional action of installing two light beams, which immediately stop the machine if broken. This was not something requested by WorkSafe but was a step that Alto took over and above what was required in order to minimise the risk as far as possible.
  3. It is therefore not the case that Alto’s steps were simply reactive and not proactive, or merely a response to the Improvement Notice. It is submitted that, even after the Improvement Notice had been lifted, Alto did in fact go ‘the “extra mile”’ to ensure the safety of the machine.
  4. For these reasons, a discount of five per cent is appropriate.
[64] I accept the submissions made by Mr Erickson in relation to this and reinforced by the content of the two affidavits. I take into account that the improvement notice was lifted. The error did not appear to be in relation to attitude but failure to engage an appropriately qualified expert to give advice from an outside source. Internal assessment proved to be inadequate but I am satisfied that appropriate remedial steps were taken and I am going to allow a discount of 5% as sought by Mr Erickson.

Guilty plea


[65] The prosecution accepts that there was a guilty plea at an earlier opportunity and accepts the full 25% in terms of Hessell v R which I accept and allow. Therefore the total discount in terms of that analysis is as follows:

Reparation 5%

Remorse 5%

Cooperation 5%

Previous safety record 5% Remedial steps 5%

Guilty plea 25%

TOTAL 50%

Step 3 – ancillary orders: costs to the regulator


[66] Mr Erickson on behalf of the company concedes that $995.58 sought by WorkSafe for costs is just and reasonable. There is no issue for me to resolve and I make an order therefore that there be costs in favour of the prosecution in the sum of

$995.58 being 50% of WorkSafe’s recorded legal costs.


Step 4 – proportionality assessment


[67] Having stood back and looked at the overall circumstances and comparing it to the other cases that have been before the Court I accept the submission made by Ms Self on behalf of the prosecution that the fine and reparation ordered in this judgment is appropriate in the light of all the circumstances. There seems to be no suggestion that the defendant is unable to meet a financial penalty at the level assessed and I note Mr Erickson’s acknowledgment and concession in relation to that in paragraph 71 of his submissions.

Conclusion


[68] I therefore in summary order as follows:

$995.58;

(d) The imposition of the reparation and fine and costs as set out above is both proportional and appropriate.

Dated at Auckland this 1st day of August 2019 at am/pm.

D A Burns

District Court Judge

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