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Safeguard OSH Solutions - Thomson Reuters

Safeguard OSH Solutions - Thomson Reuters

From the courts

Kiwifruit industry system failure

In the first defended hearing under the HSW Act, an orchard and a packhouse have been acquitted of a variety of charges arising from the death of a woman employed by another party to take samples of kiwifruit from the orchard.

The court found that the way the kiwifruit industry is structured introduces flaws into how health and safety is managed. This structure prevents safety inductions for kiwifruit samplers entering orchards, and leaves their employer to rely solely on the effectiveness of their training to keep themselves safe.

The court also found that it is unreasonable for an orchard – and farmers in general – to be required to highlight on a map of the property those areas likely to be hazardous to quad bike operators which are already visually obvious.

The incident happened at an orchard in Athenree in May 2016. The deceased, Y, rode a quad bike up and down lines of kiwifruit to take samples, sticking to the formed mown areas between each row, and the turning spaces at the sides and ends. At some point she departed from these areas and rode the bike up a slope through unmown grass – against her training – until she reached a raised lip of ground. In attempting to cross this lip on a diagonal the sample-laden bike overturned and she was fatally crushed.

Four parties were alleged by WorkSafe NZ to have committed offences under the HSW Act: Zespri New Zealand Ltd as designer of the systems used in the industry; AgFirst Bay of Plenty Ltd, the deceased’s employer; orchard owner Athenberry Holdings Ltd; and packhouse Hume Pack-N-Cool Ltd, which had requested AgFirst to undertake sampling at the orchard.

WorkSafe accepted Zespri’s application for an enforceable undertaking and dropped the charges against it. AgFirst pleaded guilty and has yet to be sentenced. Athenberry and Hume pleaded not guilty and were acquitted (Tauranga DC, 29 June 2018).

WorkSafe’s argument that Athenberry had a duty to provide Y with a map showing all hazards on the property, specifically areas where quadbikes could be vulnerable to rollover on sloping or unmown terrain, was rejected. The court accepted that the orchard manager could not have foreseen that a sampler on a quad bike would depart from the mown areas, because this had never happened before; and that the manager could rely on the competence of trained quad bike operators to stick to their training; and that they would in any case see obvious hazards such as slopes and unmown grass and would not need these marked on a map because they were not hidden.

The court found the overall kiwifruit system, as designed by Zespri, was flawed when it came to the health and safety of samplers. There was a “clear and tangible disconnection” between samplers and orchardists which left the latter no option but to rely on AgFirst to correctly train its samplers.

If a sampler rode outside the designated safe area, responsibility must therefore lie with Zespri, as designer of the system, and with AgFirst, because it routinely accepted maps from orchardists which had no hazards or no-go area marked at all, meaning it placed complete trust on its employees’ compliance with their training.

The court also rejected the notion that an orchard – and by extension, any farmer inviting contractors using machinery – should supply a map outlining every place where a quad bike could come to grief.

“Farmers and orchardists must be entitled to assume that contractors who come onto their properties are competent to operate the machinery they bring with them, and to operate their vehicles with sufficient care and skill to avoid visually obvious hazards.

“The legislature, in using the words ‘so far as is reasonably practicable’ in ss36 and 37, cannot have intended farmers and orchardists to identify farm or orchard features which can only become a hazard in circumstances of operator incompetence, carelessness, or non-compliance with instructions in the operation of the contractor’s vehicles or machinery.”

All enforcement action is under the HSW Act 2015 unless otherwise stated.

WorkSafe NZ has accepted an enforceable undertaking from Woods Glass (New Zealand) Ltd after a worker’s leg was crushed in a laminated glass cutting machine which lacked an isolation mechanism to prevent inadvertent start-up. The EU, which will cost the company at least $217,000, entails reparation to the victim, initiatives within the company, hosting workshops and training courses for the glass industry, presenting at conferences, and offering a trade qualification scholarship (19 June 2018).

The Tasman Tanning Company had a $380,000 fine, imposed for an incident in which a forklift driver was overcome by hydrogen sulphide gas, reduced on appeal by $17,000. The High Court found that because of systemic failures in communication, training and provision of personal monitoring equipment, the DC had rightly placed culpability at the upper end of the medium band, but the penalty starting point should have been $550,000 rather than $700,000. The lower court’s 5% penalty uplift, for a previous conviction involving a similar incident three years previously, was doubled, while the discount for mitigating factors – other than the 25% credit for a guilty plea – was reduced from 30% to 15%, to arrive at a final figure of $363,000 (High Court, Auckland, 9 August 2018).

WorkSafe NZ has accepted an enforceable undertaking from Bowers & Son Ltd after a February 2017 incident where an employee, not yet deemed competent to make concrete cattle troughs on his own, used bottle jacks to separate the inner mould of a trough assembly. He was working alone. One of the jacks was dislodged while under tension and part of it – probably the handle – struck the man on the head, causing lacerations and a skull fracture. Under the EU, the company will spend at least $216,000 on a range of measures, including amends to the victim, having an expert develop a precast concrete competency framework, have a person undertake a National Certificate in OHS Level 4, undertake SafePlus benchmarking and improvements, and fund 60 students at Te Awamutu College so they have access to digital devices (15 August 2018).

A reparations order of $30,000 against Agricentre South Ltd has been overturned on appeal and sent back to the District Court for determination when the company is fined for a breach of the HSW Act. The $30,000 had been awarded to cover most of the cost of a brand new vehicle with automatic transmission after a woman injured in a tractor-trailer incident was no longer able to drive her old manual vehicle. The company was also ordered to pay reparation of $60,000 for emotional harm and a further $43,459 to cover consequential losses, including $36,457 for loss of income and associated KiwiSaver contributions; $1205 in physiotherapy costs; and $5797 for a new bed and mattress to ease her discomfort (High Court, Invercargill, 14 August 2018).

Thomson Reuters

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