Safety Girl’s Thought For the Week: When it all Goes Wrong: Understanding HSE Fines vs. HSE Reparations

Get it Right and Get Employed! sarah

Never thought I’d say I’m a District Court Judge fan girl……but, it’s happened! A recent judgement from the District Court has become a new benchmark for what HSE fines vs. HSE reparation payments may look like when HSE issues go to court.

WORKSAFE NEW ZEALAND v CORBOY FORESTRY MANAGEMENT LTD [2017] NZDC 26767 [7 December 2016] 

What Happened?

  1. Billy Joe Rangati Floyd had been employed by Corboy’s for 18 months and had over 20 years forestry experience
  2. On 3rd March 2016 Gang 2 was extracting logs using an excavator with a grapple at the top of a hill. Floyd was working independently operating a  Caterpillar  525B  skidder dragging the logs from the hilltop to the skid site.
  3. The excavator dislodged  a  large  boulder weighing approximately  9.5  tonnes  which  rolled  down  the  hill and struck the skidder
  4. The skidder rolled end over end down the slope until it came to rest down around 15.5 metres from the track where
  5. Floyd who was wearing a seat belt was found hanging upside down inside he cab with: bleeding from his nose,  ears and mouth, a large laceration to the top of his head, multiple facial fractures and severe nerve damage to his face.  The left side of his face was paralysed, his hearing was impaired by the bleeding in his ears and 6 teeth later died.

Why Dit it Happen?

  1. Poor Planning: The nature and seriousness of  the  risk  during a breaking out operation is recognised industry wide and was not planned for
  2. Safe Work Zone: There was no safe work zone established by Gang 2. If this had been established, the area would have been marked off using flags and cones
  3. Line of Site: The skidder could not be seen from Gang 2’s location
  4. Communication: There was no radio communication between Gang 2 and Floyd

HSE Fines vs. HSE Reparations

As Judge Large clarified the ruling in Department of Labour v Hanham Philp Contractors Ltd (2008) 6  NZELR  79 has set precedent for health and safety sentencings.

  1. There is the assessing the amount of reparation;
  2. Fixing the amount of the fine;
  3. Making an overall assessment of the proportionality and the appropriateness of the total imposition of reparation and the fine.

HSE Reparations: $25,000

Under s 32 Sentencing Act includes: 

  1. General Costs of attending the court case
  2. Financial loss i.e. loss of income
  3. Emotional Harm (i.e. unable to eat, no fluid in left eye, cannot blow his nose, limited hearing, difficulty socialising, unable to pursue career, unable to pursue leisure activities)

NB 1 Potential costs cannot be claimed for i.e. future dental and cosmetic surgery

NB 2 Judge Large stated, “No matter what amount of emotional harm payment I order to be paid today, it will not be sufficient to put Mr Floyd back to where he would have been had the incident not occurred.” 

HSE Fines: $36,000

The Court paid attention to industry practice and standards including:

  • Approved Code of Practice (ACOP) for Safety and Health and Forestry Operations  in  December  2012
  • Best Practice  Guidelines,  Safe Retreat  Positions  in  Breaking  Out, Worksafe July 2014
  1. The nature and  seriousness  of  the  risk associated with breaking out is recognised as one of the most hazardous operations in forestry and the risk to people working below in extraction operation is well known
  2. There was a departure from the industry standards
  3. The Defendant pleaded guilty and acknowledged they were wrong

Key Take Aways & How to Avoid HSE Fines and Reparations

  1. Planning is Important: If you are conducting activities where the nature and serious of the risk is known you need to plan carefully. Think about
    1. Safe work and exclusion zones
    2. Communication
    3. Emergency planning
  1. Know your industry guidelines and best practice: If there is another organisation down the road that mitigates a risk there is no excuse that it can’t be done. Make sure you are following industry guidelines and codes of practice. 
  1. Get Curious: DCJ Large was very specific. The ACOP “does not advise contractors effectively to think beyond the square and look at what risks there might be, even if there is total compliance with the code of practice.”

Have a safe and productive week, and I genuinely hope you only ever have to consider paying HSE fines or reparations in the theoretical universe, not the real world.

SB a.k.a. Safety Girl

 

 

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