19.02.2019

Don’t Let Your Guard Down

The risks arising from the use of unguarded machinery are well-known to the point of being blindingly obvious.  The measures to ensure the safe operation of machinery are usually straightforward.  WorkSafe’s guide on the safe use of machinery is available at no cost on its website.  The cost of adequately guarding machinery pales in comparison to the potential cost of using unsafe machinery. And yet, injuries relating to guarding failures (in particular) are still occurring with alarming regularity. 

Recent prosecutions in NZ

In January 2019, the District Court imposed fines, reparations and costs exceeding $680,000 against a Rotorua timber company following two similar machinery incidents.

In December 2016, a worker’s hand had to be amputated after it was drawn into a wood planer.  The planer was not appropriately guarded at the time of the incident. The PCBU (person conducting a business or undertaking) timber company had not regularly inspected the planer to ensure guards were functional and, disturbingly, the guard supplied by the manufacturer was found by a WorkSafe inspector in a cupboard above the planer.  

The PCBU was fined $330,000, and ordered to pay reparations of $42,000 (in addition to $10,000 already paid to the injured worker).

In March 2017, a worker lost the tips of several fingers when his hand became caught in machinery when trying to reinstate a dislodged chain.  An investigation found there was inadequate guarding on the machinery, the emergency stop was not fully operative or clearly marked, and there were no documented safety procedures to follow in the event of a dislodged chain.

Unsurprisingly, WorkSafe were critical of the PCBU’s approach to health and safety.  In its press release, WorkSafe commented that: “[w]hen the risk was identified as a result of the first incident, step one should have been to check guards were in place…”

The PCBU was fined $264,000, and ordered to pay reparations of $4,000 (in addition to $24,000 already paid to the injured worker).

In a separate matter in February 2019, the District Court imposed a fine of $315,000 and reparations of $45,000 against an Auckland manufacturing company. The charge followed a January 2017 incident where the PCBU’s worker sustained lacerations, degloving and crush injuries when his arms were caught in inadequately guarded rollers of a machine. The risk of harm created by the machine had been identified by the PCBU, but no measures had been put in place to prevent the harm.   

The (unfortunately, still common) attitude that guarding machinery makes doing a job more difficult is misguided, and potentially fatal.  A recent decision from the UK illustrates the harm that can arise from a lax approach.

What has happened in the UK?

In 2018, a Liverpool-based waste and recycling company, Gaskells (North West) Limited was fined £700,000 and its director was sentenced to 8 months’ imprisonment for his failings in respect of the unsafe operation of an unguarded machine.

In that case, a baler that compacted paper and cardboard had an interlock fitted so that it could not be used when the door to the compaction chamber was open.  The interlock had been bypassed by the company’s maintenance engineer as a result of damaged/defective wiring, however the engineer had brought this to the attention of the company’s management.  Despite the defect being internally reported on daily defect report sheets, nothing was done by the management team to remedy the inoperative guarding. 

A worker suffered fatal injuries when attempting to clear a blockage in the baler in 2010. Despite the fact that the company ordered a replacement interlock switch hours after the worker’s death, the baler was then used without the interlock switch until health and safety inspectors attended the company’s premises in July 2015.

How would this play out in NZ?

Clearly, this case serves as a shocking example of high culpability on both the company and director’s parts.  It also serves as a warning to New Zealand based officers of PCBUs. Parliament’s intention following the Pike River disaster is clear: persons who have neglected or abandoned their health and safety obligations will be held to account in appropriate cases.

All officers (that is, persons who are able to exercise a significant influence over of management of a business or undertaking such as directors, partners, CEOs) have an obligation to ensure that the PCBU is appropriately managing risks and hazards.

If WorkSafe were confronted with a similar fact pattern to that in the Gaskells case, the Health and Safety at Work Act 2015 provides for very significant penalties against an officer that is found to derelict in his or her duties.  The Court can impose a term of imprisonment of up to 5 years where it finds that an individual was “reckless as to the risk to an individual of death or serious injury or serious illness”.

The message is simple: the guarding of machinery is not novel.  It is not usually difficult or costly to address guarding issues, or ensure machinery is routinely inspected. Don’t let your business get caught with its guard down. The result of a guarding failure may be a king hit to the health of your workers, and also to your bank account.      

Do you need expert legal advice?
Contact the expert team at Hesketh Henry.
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