Some Court decisions

By James Findlay / a couple of years ago

A Sample of Cases, not all farm related, but relate to similar machinery and farm type activities. Stay safe and enjoy your work!!!

Worksafe v Agricentre South Island Limited Defective Tractor Penalties – Maximum penalty a fine of $1.5 million
Agricentre sold a tractor and on sale knew brakes not working on tractor, after repairs it was sent on a trial at a farm, Agricentre attempted to fix the issues out on the farm. Five days into the trial the brakes of the tractor failed with the tractor running over a female worker.

The worker was left with a fractured vertebrae, a broken arm and injuries to both legs The company was fined $239,063 and ordered to pay $103,459 reparations.
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Worksafe v Budget Plastics Limited (First reported case under the new Act ) Extrusion Machine insufficiently guarded/and was not fitted with appropriately located emergency stop /no training for workers using the machine /no training was documented.
Worksafe charged the company the PCBU for breaching its duty in failing to ensure the health and safety of workers so far as is “reasonably practicable.” The employee lost a portion of his hand which was amputated after it was caught in the auger. The only remaining digits were the employees thumb and half his forefinger.

The Court considered the penalties available and as a starting point between $210,000 to $315,000.The judge reduced the fine to $100,000 having regard to the companies viability with reparations of $37,500.

Worksafe v R C Limited The premises a two storied building with a mezzanine above the office for the use of storage. Mezzanine constructed without consent (Non-compliant with the Building code)

Worksafe charged the company the PCBU for breaching its duty in failing to ensure the health and safety of workers so far as is “reasonably practicable.”

An employee slipped off the side of mezzanine falling through the false ceiling to the floor. She suffered a broken arm broken right shoulder ,broken right collarbone and fractures to the left side of pelvis.

The Court considered the starting point at $300,000. It considered mitigating factors such as a blemish free safety record and remedial steps being taken ,remorse and a willingness to attend restorative justice and pay reparations Finally considering the ability to pay reduced the fine to $157,500 with reparations of $20,000

Worksafe v Toll Networks Limited
Toll failed to take reasonably practical steps to avoid the fatality including failing to develop documents and implement a safe system of work including providing temporary barriers and monitor and enforce compliance by workers. The deceased a site caretaker in the course of his work was struck by three pallets weighing 1,200 Kgs.

The Court considered the starting point at $900,000 The company was fined $506,300 and was ordered to pay $118,020.10 reparations .

Worksafe v Miller Foods Limited Faulty machine and insufficient training to operate the machine
The employee of a small company suffered a serious injury with the amputation of the tips of three fingers .

The Court considered the penalties available with the starting point of $600,000.The judge reduced the fine to $337,500 with reparations of $45,000

Worksafe v Easton Agriculture Limited Concerned a potato harvesting machine where the company was charged with the failure to isolate workers from the moving parts of the machine and to develop standard operating procedures for the safe operation of the machine.

The deceased an experienced employee was operating a windrower alone. He was found trapped in the back of the machine and later died. It was uncertain how the accident occurred .

The Court considered the penalties and having regard to the mitigating factors including a restorative justice conference and voluntary payments made to third parties and the companies ability to pay imposed no fine. Reparations were ordered in the sum of $25,000 for each of the deceased’s children
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Worksafe v Michael Vinning Contracting Limited It was an identified risk that the employee was operating a tractor whilst fatigued.

An agricultural worker employed by the company crashed the tractor he was driving home and died at the scene.
The worker it was recorded had worked 16.75 hours that day and in the fortnight prior had worked a total of 197.25 hours

The Court considered the starting point at $650,000. Having regard to all the mitigating factors including remorse ,and its unblemished record and its cooperation and its ability to pay the company was fined $10,000 and was ordered to pay $80,000 reparations

Worksafe v Oceana Gold (NZ )Limited The identified risk was in the building of a bund across the top level of an open slope at the Waihi mine .

The employee at the mine was an experienced operator of a large piece of earth moving equipment .On the day in question his machine had been working on the open slope and was subsequentially found at the bottom of the slope having fallen about 15 metres leaving him with unsurvivable injuries.

The Court considered the penalties available including the ability to pay and the mitigating factors. The Court fined the company $378,000 with reparations for loss of earnings of $350,000 and costs of $3672

Worksafe v Cropp Logging Limited The particulars of the charge allege that it was reasonably practicable for the company to complete an adequate behavioural observation of the worker ,to induct the worker into his role and to ensure that no machinery was operating above the worker

During the forestry operations a log rolled down the hill severely injuring the worker .He suffered a broken pelvis, fractured hip ,fractured femur and spine and psychological effects .

The Court considered the penalties with the starting point at $750,000 and having regard to the mitigating factors and the companies ability to pay imposed a fine of $100,000 and reparations of $80,000

Worksafe v Avon industries Limited The defendant company as part of its operation carried out hot dip galvanising this includes lengths of chain and a machine which had no operating manual

A worker on the day of the accident was in charge of the chain galvanising process. It jammed and he climbed on to the frame of the machine and slipped and his left foot went into the zinc bath with molten zinc poured over the top of his boot. He suffered deep burns and spent 21 days in Hospital and needed skin grafts.

The Court considered the starting point at $600,000 Having regard to all the mitigating factors including remorse ,and remedial action being taken but also an uplift for prior convictions the company was fined $371,250 and was ordered to pay $30,000 reparations.

Worksafe v Claymark Limited The defendant company had two safety failings within three months.

The first incident resulted in the worker’s hand having to be amputated after it was drawn into a wood planer.

The planer was not appropriately guarded, and there was no system of regular inspection to ensure guards were present and functional.

The second incident resulted in the worker who had his hand caught in machinery used to de-stack timber. He lost the tip of his middle and index fingers. There was inadequate guarding on the machinery, no documented safe procedures for workers and the injured worker had not been trained in the location of the emergency button

The Court fined the company $330,000 with reparations of $42,000

The Court fined the company $264,000 with reparations of $4000 in addition to the $24,000 already paid

Worksafe v Athenberry Holdings Limited and others Zespri Case

The orchard owned by Athenberry supplied Zespri Group Limited. Zespri required maturity testing of crops and that growers must use AgFirst for sampling as contracted. This case concerned a kiwifruit orchard involving multiple duty holders.

Worksafe brought charges against:
(i) the orchard owner
(ii) the employer of the victim
(iii) the pack-house
(iv) Zespri as the industry body
A sampler was killed when the samplers quad bike overturned in rough terrain. The sampler /employee at the time of the accident was outside the designated or expected work area)

The sampler was employed by AGFirst as contractors to Zespri for the local pack-house, Hume Pack-N-Cool Limited. Charges against the employer was that the employer (AgFirst)
(i) Failed to establish a safe working system which identified potential hazards to its workers including ensuring that proper maps showing potential hazards were received and workers received an induction as to possible hazards
(ii) Failure to design and implement a system for control and management of hazards and risks associated with workers who worked alone .
All parties defended the charges
(i)the orchard owner –was found not guilty
(ii) the employer of the victim –pleaded guilty
(iii) the packhouse was found not guilty
(iv) Zespri gave an enforceable undertaking which contained conditions and was not proceeded against.

The Court considered the culpability of the employer and assessed the starting point at $600,000. The Court took into account the good record, cooperation with the investigation, remedial action, restorative justice and remorse and the guilty plea came to a final figure of $306,000 and $60,222 further reparations
One important matter was referred to in this case and that the Act protects PCBU’s if they have a limited ability to influence or direct a matter or arrangements in place. Influence or direction involves
(i) control over the practical carrying out of work.
(ii) provision of advice. (iii)reporting requirements.
(iv) oversight or supervision.
(v) specification of matters affecting the conduct or methods of work.
The Court said that the identification of hazards by the orchard owner did not need to go beyond the expected work area. The owner could expect the tester /sampler to be competent in own tools and to recognise obvious hazards. That the legislature cannot have intended farm or orchardists to identify features which can only become a hazard in circumstances of contractor incompetence carelessness or non compliance of instructions.

About the author

James Findlay


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