WorkSafe New Zealand v Fresh Meats NZ Ltd [2020] NZDC 12959 (3 July 2020)

Last Updated: 3 July 2024

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

ORDER PROHIBITING PUBLICATION OF IDENTIFYING PARTICULARS OF VICTIM PURSUANT TO S 202 CRIMINAL PROCEDURE ACT 2011. SEE http://www.legislation.govt.nz/act/public/2011/0081/latest/DLM3360346.html

IN THE DISTRICT COURT AT NAPIER I TE KŌTI-Ā-ROHE KI AHURIRI

CRI-2019-041-002370

[2020] NZDC 12959

WORKSAFE NEW ZEALAND

Prosecutor v

FRESH MEATS NZ LIMITED Defendant

Hearing:	3 July 2020
Appearances:	M Williams on behalf of E Bickerton for the Prosecutor N Beadle for the Defendant
Judgment:	3 July 2020

NOTES OF JUDGE G MATENGA ON SENTENCING

[1] Fresh Meats NZ Limited is a slaughter and processing company wholly owned by Integrated Foods Limited. It has a plant in Napier. At the time of the incident in question, 100 staff were employed processing 250,000 lambs in its plant each year.

[2] [The victim] was employed as a slaughter floor labourer. On 22 November 2018 [the victim] started work at approximately 6.00 am. She was part of the preoperative crew and was cleaning equipment prior to the day’s production. This involves checking the previous nights cleaning ensuring the slaughter floor meets the meat processing compliance standards. Part of this process involves cleaning the two production chains. The chains run together to move the lamb carcasses along the

WORKSAFE NEW ZEALAND v FRESH MEATS NZ LIMITED [2020] NZDC 12959 [3 July 2020]

slaughter floor. There is a pinch point where the two chains merge. There were also pushers spaced at regular intervals along the chains which serve to push the animals along the chain line.

[3] [The victim] was cleaning the second chain and focused on removing fat that was stuck in the chain. At the time she was cleaning it, the chain was operational and moving. Whilst she was doing so, her arm was pushed by one of the pushers and her arm got trapped in the pinch point between the two chains. A co-worker was alerted by her screams for help and the stop button of the chain was pushed. It took the co-workers 10 minutes to free her hand from the equipment. This had to be done by levering the chain pusher back far enough for [the victim] to be able to withdraw her hand.

[4] [The victim] was taken by ambulance to Hastings Hospital and then transferred to Hutt Hospital in Wellington for further surgery. Her injuries included extensive lacerations and trauma to muscles, tendons, nerves, blood vessels and bones in her right hand and wrist. She underwent an operation to reconstruct her hand and wrist including the use of skin and bone grafts. An external fixator involving pins into the wrist for stabilisation was removed subsequently in theatre in January 2019.

[5] The injury was reported as required to WorkSafe New Zealand (WorkSafe) and after an investigation, WorkSafe decided to commence a prosecution. The prosecution was brought under ss 36(1)(a), 48(1) and 48(2)(c) of Health and Safety at Work Act 2015. Fresh Meats NZ Ltd (FMNZ) was charged that having a duty in respect to the health and safety of workers who work for FMNZ, including [the victim], did fail to comply with that duty in that the company failed by exposing [the victim] and others to risk of serious injury. This charge carries a maximum penalty of a fine not exceeding $1,500,000.

[6] [The victim]’s injuries were significant and were more than just the physical injuries that she suffered on that day. I have heard from her today. It was her wish to read her victim impact statement to the Court. She was only able to read about half of it because she is still clearly affected by it, not just physically but also emotionally.

[7] There are impacts of her injury which extend to her husband and to her family. She is at present not able to go back to work and feels that she will be unable to return to work. That is again not just a physical thing, but also an emotional thing. There is clearly some further work that she will need to do for herself so that she can come to terms with what has happened and with the results of that incident. I understand that her husband has received some counselling. That has been of great assistance to him. I assume that [the victim] will also avail herself of similar type of assistance as that is clearly what she will need to help her make sense of things.

[8] Clearly, she feels a sense of loss, or embarrassment. She feels ashamed. She feels, (and this is not her words but my interpretation of her victim impact statement), useless because of the things that she used to do and she cannot do anymore. She feels at this stage that there is little hope that she will be able to do again what she used to in the past.

[9] Part of her statement struck me particularly. In talking about her surgery and her hand she said:

I remember that when I woke up after the surgery I didn’t want to look because I thought I knew before I went to asleep that they were going to cut it off. I didn’t want to look and find my hand not there. When I woke up and it was there I felt so happy to see my hand still on, so happy, but now I look and I think that these scars look ugly.

[10] It is not just the physical scars on her hand and arm which she is finding ugly, but also the emotional scars which are still very much evident to her.

[11] I have had the benefit today of receiving comprehensive submissions from Mr Williams on behalf of WorkSafe and Mr Beadle on behalf of FMNZ. Both Counsel submitted that they are not far away from reaching agreement. I accept that. The process that they have followed is accepted and they have both provided me with a great deal of assistance with the various cases that they have quoted and what the Court needs to look at and consider in relation to fixing the appropriate penalty. But there are some points at which they vary which will require me to make some decisions.

[12] I was provided with the WorkSafe New Zealand v Stumpmaster Ltd decision which is the leading case.1 I accept the approach which that case clearly sets out is required by the Court in fixing the penalty.

[13] The first stage is to assess the quantum of reparation. A sum of $35,000 was agreed. I note here that an amount of $5000 was paid almost immediately by Fresh Meats to [the victim]’s bank account to assist defraying expenses for [the victim’s husband] given his need to travel to and be accommodated in Wellington. There was also an issue of consequential loss. That is the loss of earnings. ACC pays 80 percent and the difference (nett of course of tax) should be reimbursed to [the victim] as consequential loss.

[14] The issue with setting that amount it would seem, is the length of time for which that should apply. [The victim] is unable to return to work and is unlikely to be able to return to work at FMNZ. I am advised today that Counsel have agreed on the sum of $10,000 as consequential loss.

[15] The second step is to assess the quantum of the fine. There is agreement on the factors to consider in relation to the assessment of culpability, but there is disagreement as to where the starting point of that fine should be.

[16] For the prosecution, it is submitted that the starting point should be $500,000. For the defence it is suggested that the starting point should be slightly below the median of $420,000.

[17] To assist me I have been provided with a number of cases. I will not rehearse those cases in open Court today suffice to say that I have read them.

[18] What can be said is that no case is exactly the same. Each must turn on its own unique set of facts. Counsel were at pains to try and point me to cases which were similar. I accept that, looking for cases which had a similar type of pinch point which had not been guarded to try and give the Court some assistance as to where the culpability should lie. As I have said, they are not too far away from each other. The

1 WorkSafe New Zealand v Stumpmaster Ltd [2018] NZDC 900.

prosecution believing that it is at the median point or slightly above the median point of band 2 whereas the defence submits that it is slightly below the median point of band 2.

[19] My view of it is that culpability sits at around the median point and I have fixed the starting point of $450,000 which, in my view, adequately reflects the culpability. There are, in my view, no aggravating features. As to mitigating features however, there is another slight variance.

[20] It is accepted that FMNZ has a good record. This is the first time they are being prosecuted under this legislation. They have co-operated with the investigation. This is an area where there is some disagreement.

[21] Mr Beadle, suggests that remediation steps are separate consideration whereas Mr Williams’ point is that remediation steps that were undertaken should have been done anyway and therefore should not be a discrete factor considered by the Court in addition to the other mitigating factors. Mr Beadle says that his client went over and above what should have been done, including a complete audit of their system at the processing plant. He also says that this came at great expense.

[22] My view of it is that co-operation and remediation are separate steps. One can co-operate with WorkSafe without undertaking remediation. Either step can be undertaken independently, so in my view are entitled to separate consideration.

[23] It is submitted that the defendant company is remorseful. I note the steps that FMNZ undertook right at the early stages of the incident where they have been very supportive of the [victim’s] family. The company have recognised that what took place affected everybody. I note also in the restorative justice conference report that an apology was extended and accepted. It is common ground I think that the [victim’s] family are grateful for the efforts taken by the company to assist them with their difficulties.

[24] The fifth point in mitigation is reparation. FMNZ has provided, as I have said, early support but also ongoing weekly financial assistance since the initial lump sum payment. They are entitled to consideration for that.

[25] In my view then a discount of 25 percent for the mitigating factors is appropriate.

[26] The next consideration is a guilty plea. Counsel agree that a full discount of 25 percent is available. I agree with that.

[27] Therefore, the calculation is a starting point of $450,000 less 25 percent discount for mitigating factors of $112,500, a subtotal of $337,500, 25 percent discount for the guilty plea of $84,375 giving the fine end point of $253,125.

[28] The last point to consider is the issue of costs. I am asked by WorkSafe to award costs in the order of $5000 being 50 percent of the prosecution costs sought. It is submitted that although this award is higher than what has traditionally been awarded by Courts, there is nonetheless power for the Court to make such an award. Mr Williams says that WorkSafe’s legal costs, excluding today, are at $11,000 and so he is seeking 50 percent of the prosecution costs.

[29] Mr Beadle in reply says that such awards have not been made in the past to that extent. He accepts that costs are appropriate and would ordinarily follow but suggests that this is not the time for an upward movement.

[30] I accept what Mr Williams says that the costs have been in excess of $11,000. No affidavit or evidence has been provided. That issue was not raised by Mr Beadle. In my view, the Court does have jurisdiction to grant costs and make an award that shows some upward movement. In this case then I will make an award of costs of

$2,500 which is not much of a movement but I will leave other braver Judges to do that for themselves.

[31] To conclude then, the sentence is emotional harm reparation of $35,000 is awarded. I note that $5000 has already been provided. Consequential loss of $10,000

is awarded, a fine of $253,125, costs $2500. In relation to the fine, I direct that $50,000 of that fine is to be paid to [the victim].

(Adjournment taken)

[32] I have recorded the result as follows:

• 32.1 Emotional harm reparation $30,000.00;
  
• 32.2 Consequential loss $10,000.00; 32.3 Fine of $253,125.00;
• 32.4 Costs to WorkSafe New Zealand of $2,500;
  
• 32.5 By consent, an order (pursuant to section 202 Criminal Procedure Act 2011) prohibiting publication of the name of [the victim].
  

Judge G Matenga

District Court Judge

Date of authentication: 16/07/2020

In an electronic form, authenticated pursuant to Rule 2.2(2)(b) Criminal Procedure Rules 2012.