Work Safe New Zealand v Mainland Minerals (N.I.) Limited

[2016] NZHC 6864

EDITORIAL NOTE: NO SUPPRESSION APPLIED.

IN THE DISTRICT COURT AT WAIPUKURAU

CRI-2015-020-002973 [2016] NZDC 6864

WORK SAFE NEW ZEALAND

Prosecutor

v

MAINLAND MINERALS (N.I.) LIMITED

Defendant

Hearing:	18 April 2016
Appearances:	D M Brabant for the Prosecutor N R Williams for the Defendant
Judgment:	18 April 2016

NOTES OF JUDGE G A REA ON SENTENCING

[1]      On  11  February  2016  the  defendant  Mainland  Minerals  (North  Island) Limited pleaded guilty to a charge that it failed to take all practicable steps to ensure the safety of an employee whilst at work.  The plea of guilty was entered at a very early stage indeed and obviously a credit will be due to the company for that.

[2]      The company, in May of 2015 when the events leading to this sentencing occurred, was in business in Waipukurau specialising in the preparation of fertiliser for the farming community.  The defendant operated a fertiliser storage and mixing facility at Takapau Road in Waipukurau.  The complainant, Cody Mannell was an employee of the company and had been employed for some seven years.  In April

2015 he became the store man at the facility belonging to the defendant company in

Waipukurau.

WORK SAFE NEW ZEALAND v MAINLAND MINERALS (N.I.) LIMITED [2016] NZDC 6864 [18 April

2016]

[3]      The  events  that  led  to  the  prosecution  revealed  that  Mr  Mannell  was operating a fertiliser sorting bin owned by the defendant.  He attempted to place a piece of timber underneath the conveyer belt system to prevent it from slipping. Product  had  in  the  past  gone  from  the  bin  onto  the  conveyer  belt  and  caused slippage.   Originally a high pressure air gun was available to remove the product from the conveyor belt but that air gun did not operate at the time of the events we are here about.

[4]      Mr Mannell got underneath the conveyer belt system in an attempt to rectify the problem.   In doing that his arm was caught and he was pulled into a rotating drive shaft on a conveyor roller.  Due to the motion of the roller he became trapped in the machine up to his shoulder.  He was trapped in that way for quite some time. There has been a debate as to exact timing but it goes without saying that Mr Mannell was trapped for a significant period and during that period clearly received significant injury.

[5]      There was no one else present and Mr Mannell, despite the situation he found himself in, had the presence of mind to use a cellphone that he had with him to call the emergency services and the New Zealand Fire Service extracted him from the conveyor roller.  He suffered crush injuries to his left arm.  These included several compound fractures.  There is a very graphic piece in the victim impact statement of him seeing pieces of his bone sticking out from his arm as he awaited rescue.  There was a large wound to the underside of his arm and it is accepted that he is unlikely to gain full function in the arm.

[6]      He has been the subject of a number of surgical interventions and skin grafts and it is my understanding from reading the victim impact statement that further medical attention will be required into the future as a result of the injuries that he suffered.

[7]      As anyone would expect in circumstances such as this, the accident has had a profound effect on Mr Mannell.   He is concerned about his future personal and employment prospects, he has become reclusive; he does not mix well with others.

He has a short fuse and is usually angry at the world.   All of this clearly has emanated from the injuries and the accident.

[8]      Judges dealing with cases like this are bombarded, and that is not too strong a word, from both sides with attempts to find comparable cases to set relevant levels of reparation or fines or both.  That has happened here.  Each side has taken a stance as to where it considers the appropriate starting point to be in relation to the reparation and has cited authority to support it.  Mostly that can be helpful but in the end it can also get to the stage where it seems like an exercise in grading one person’s misery against that suffered by somebody else on a previous occasion.   In my view past cases,  unless  they  have  appellate  authority  to  them,  are  helpful  in  determining general ranges but seldom helpful in arriving at appropriate dollar levels and I have found that to the case in my review of the material here.

[9]      This case has developed in a different way than others.   I will deal shortly with the appropriate legal approach but the Court is required to determine three things.  The first is reparation payable to the complainant.  The second is the level of fine and the third is to assess the overall totality of both and to adjust that in the event that it exceeds what is reasonable in all of the circumstances.  It was intended that all matters in this case would be resolved today.  However without going into any detail there are issues around the company’s financial position that are uncertain. There was a considerable amount of evidence presented dealing with the company’s financial position.  The director of the company was cross-examined on an affidavit that he had filed and in the end it appeared that some of the material had been overtaken by events and there was now a different restructuring than was available to the Court from the material that had been filed.

[10]     As a result it is not possible to determine today whether the company is in a position to meet any fines but both parties are agreed that the Court should determine the issue of reparation today because the company is insured for that  and it is preferable to have that dealt with because people have travelled from a distance and it may well be that the issue of fine can be resolved once the full financial position is known without a further appearance in Court although that remains to be seen.

[11]     The leading case in determining the approach the District Court should take in   a   case   such   as   this   is   the   Department   of   Labour   and   Hannam   and Philp Contractors, a well known case where judgment of the High Court was given by Randerson and Pankhurst J.  Those Judges concluded that the correct approach was to view the sentencing in three main steps.   Firstly assessing the amount of reparation.   Secondly, fixing the amount of the fine and thirdly making an overall assessment of the proportionality and appropriateness of the imposition of both.

[12]     Today the exercise that I undertake is to set the amount of reparation.  As I have said any fine, should there be any ability to pay a fine, must be left for another day. The sentence of reparation in a case such as this must be the principle focus and as I have said it is the first step in the sentencing process.  I have outlined already the basic facts.

[13]     Mr Williams has submitted that the company has taken some steps to prevent what has occurred but with respect they were woeful.  I can understand that directors at a distance not having immediate control over their premises where their business is conducted may pose a difficulty for them but the law holds them to the same standard  as  all  other  employers  in  this  situation.    There  appears  to  have  been precious little, if any training of Mr Mannell even though he was an experienced operator over a number  of  years.   There  clearly was  no  protection  around  this machinery.  It was not guarded and the type of conduct undertaken by Mr Mannell to remove the product from the belt was dangerous in the extreme.  In saying that I am not intending to blame Mr Mannell.  The legislation requires the employer to have the proper structures in place to minimise and if possible eliminate the very sort of thing that occurred in this case.

[14]     The one piece of equipment that had originally been installed to alleviate the problem that led to this injury did not work.  I am told that the director or directors had not been advised of that, however, once again it is the legal responsibility of the company to look after the safety issues in its own plant.

[15]     As I have said there is some dispute as to exactly how long Mr Mannell was trapped in the way I have described.  A subdivision of his predicament into minutes

or seconds is self defeating.   It is quite clear from the extensive damage that he suffered and how he had to go about organising his own rescue, that he must have been trapped in what were horrific circumstances for quite some time.  As I have said he describes the emotional distress that he has suffered as a result of what has happened to him and there is every reason to expect that that will continue on.

[16]     In this decision I only intend to refer to one case because I consider it is of the  greatest  assistance  and  that  is  the  case  of  Work  Safe  New  Zealand  v Meycov Foods Limited CRI-2014-017-348 17 December 2014.  I consider that case to be of assistance for two particular reasons.

[17]     First that the fact situation is akin to the current case with some differences that one would expect between cases.  The other factor is that there was a review of the reparation ordered in that case on appeal in the High Court by Simon France J. So it is a case where what happened in the District Court was reviewed in the High Court.

[18]     In the Meycov case the victim was trapped while cleaning a biscuit making machine.  It took 40 minutes to free her hand from the machine with the estimated temperature of the machine rising to 85 degrees Celsius .  The Court acknowledged the profound emotional impact the victim suffered in being trapped in that way for that period of time; a good deal of it without pain relief.   She suffered significant tissue and muscle damage and there was doubt that she would regain the normal function of her arm and she also required ongoing treatment and surgery.  It appears that  she  was  the  mother  of  some  children  which  was  also  seen  as  having  an emotional impact based on her inability to be able to look after them in the way that she  would  have  liked,  into  the  future.    In  that  particular  case  the  High  Court confirmed a reparation order of $45,000.

[19]     While I accept that there can be differences drawn between Mr Mannell’s position and that of the lady in the Meycov case, any distinctions are largely without a difference.  In my view the nature of the injuries, the circumstances surrounding them and the ongoing affect of what has happened are on all fours and on that basis I

consider that the appropriate award of reparation in this case is one of $45,000 emotional harm reparation.

[20]     There is also reparation for unrecovered losses of $6705.  I consider in the circumstances  of  this  case  that  reparation  is  also  recoverable  and  there  is  an additional order for that amount for the unrecovered financial loss.

[21]     The matter will now be adjourned on a pro-forma basis.   There will be an adjournment to 9.30 am 31 May 2016.

G A R ea

District Court Judge