If you can't fix an health and safety issue, you now need to isolate it until you can!

On 22 August 2017, the first judgment under the Health and Safety at Work Act 2015 (HSW Act) was released.

An employee at Budget Plastics Limited was left with only their thumb and half a forefinger after their hand was caught and pulled into a plastic extrusion machine. Budget Plastics was convicted and fined $100,000, and ordered to pay $37,500 reparation and $1,000 legal costs.  

Budget Plastics was charged under section 36(1a) of the HSW Act, which states that PCBU’s must ensure (so far as reasonably practicable) the health and safety of workers.

Approximately 1.5 months before the incident, Budget Plastics had engaged a Health and Safety company to undertake a review of the workplace. That company highlighted a number of areas that required immediate attention, including the need for guards on all moving parts of the extrusion machine. At the time of the incident, Budget had not yet addressed the concerns relating to the extrusion machine.

The Court also found that Budget Plastics had failed to:

  • Install appropriately located emergency stops on the extrusion machine;
  • Have adequate systems in place for identifying hazards in the workplace;
  • Have an adequate safe operating procedure for using the extrusion machine; and
  • Have adequate policies/procedures for training workers in using the extrusion machine.

Under the old health and safety legislation, fines for cases involving machine guarding ranged from $30,000 to $40,000 on average. The maximum penalty under the HSW Act is $1.5million.

The Court determined Budget Plastic’s culpability was moderate, and recommended a starting point of between $400,000 and $600,000 for the fine. That was reduced to between $210,000 and $315,000 after the Court considered mitigating factors such as the company’s clean record, cooperation, remorse, remedial steps and guilty plea. The Court ultimately set the fine at $100,000 after considering extensive affidavit evidence as to Budget Plastic’s inability to pay more than $100,000 and the case was not severe enough to warrant putting Budget Plastics out of business.

In setting reparation at $37,500, the Court sought guidance from recent caselaw (under the old legislation) with comparable facts. The Court also ordered Budget Plastics pay $1000 towards Worksafe’s legal costs.

In WorkSafe’s media release, General Manager Operations and Specialist Services, Brett Murray, said,

“The lesson here is to fix machinery as soon as risks are identified. If you can’t fix it, then take it out of service until it is safe to use.”

If you'd like to know more, please get in touch with  our helpful team. 

Canterbury earthquake residential damage, limitation period looming

The Limitation Period issue for some claims for earthquake damage to residential property is looming.  Are you affected? 

4 September 2017 is a potential deadline for some homeowners to file claims in Court to protect their claim for earthquake damage to their homes/ residential rental properties, even if their claims are still with EQC.  

Depending on the insurer at the time of the September 2010 earthquake, if you have an unresolved claim and have not received written confirmation from your insurer that they will not plead the Limitation Act as a defence to your claim, this may be a significant issue for you. If they successfully plead the Limitation Act as a defence, that means your claim against them would be at an end, because of how much time has elapsed since the September 2010 quake.

 If you have unresolved damage to your residential property arising from the September 2010 earthquake, we would urge you to contact us to discuss what steps you may need to take to ensure your insurer cannot ‘walk away’ from your claim after 4th September 2017 on the basis of expiry of the limitation period.

This is particularly the case if you were insured with AA, FMG, MAS or Vero. Other insurers (including Southern Response, IAG and Tower) have indicated that they are working to a later date, but we would recommend that you discuss your particular situation with one of our helpful team. This also applies if your claim is still with EQC.

If you'd like to know more, please get in touch with  our helpful team. 

 

 

 

Ingredients + vision

T+P hosted Peter Cullinane of Lewis Road Creamery and 140 guests at the Hagley Oval on Friday 2 June. The theme of the lunch and Peter’s presentation was Ingredients and Vision.
 
Clients were delighted to be invited to hear a world class and home grown success story about how Peter built the Lewis Road Creamery brand from humble butter beginnings into the product range we all love to indulge in.  He had a clear vision and spoke with passion about NZ’s potential and products.  He was quietly entertaining and humble.  The Lewis Road Creamery story is a darling of social media and Peter was very proud to say that they have almost 200,000 “Roadies” supporting them online.
 
Peter’s 10 top lessons were also very insightful, and spelled out his view of the key ingredients for success.  They included:

  • Back yourself!  The biggest impediment to success is fear of looking foolish.
  • Have confidence and laser-like focus
  • Branding has to be brilliant; your product or service has to be better.

The TP vision for the event included celebrating with the Lewis Road Creamery ingredients. Our team created a bespoke cheesecake for all our guests to enjoy. The recipe is on our Facebook page.

Take a sneak peak inside our event by clicking on the photos, viewing our videos below or reading a little about what Peter had to say in over on stuff.co.nz.    

Stadium decision appealed

The legal wrangle between the insurers of Stadium Southland and the Invercargill City Council has just been appealed to the Supreme Court.

We will update you when the hearing has happened and the decision is out - which will be many months away.

A little knowledge can carry a wealth of legal responsibility

Many will recall the shocking photos of a broken Stadium Southland when its roof literally collapsed under the weight of heavy snow back in 2010. The collapse has subsequently been attributed to defective remedial work undertaken to address a previously identified construction issue, and has sparked years of legal wrangling between insurers for the Stadium and the local Council over where the ultimate liability lies.

The Court of Appeal has recently issued a landmark decision that, when it comes to ‘duty of care’, has significant implications for trustees and for Councils all over the country.

Stadium Southland, Invercargill, was built in 2000 under a project and lease agreement between the Invercargill City Council (ICC) and the Southland Indoor Leisure Centre Charitable Trust (the Trust). During construction, a lighter gauge steel was used for the roof than the design required; as a result the roof visibly sagged. Remedial work was completed, but not as the engineer had specified, yet both the engineer and ICC failed to check that the work meet specifications before signing it off.

In 2006, the Trustees raised concerns about the roof’s flexibility when subjected to wind load and expressed concern over its potential for collapse after heavy snow. They sought advice from the engineer involved in the Stadium design, he recommended further remedial work, but the Trustees failed to ensure that the required changes were indeed delivered to standard.

While the High Court found the Council negligent for issuing the code of compliance for the works, on appeal the focus of the legal debate centred around whether or not a local authority (whose contracting agents had built a defective building) owed a duty of care to the Trust as developer of the stadium.

The Trustees’ legal position argued that the Invercargill City Council was liable in negligent misstatement for issuing a code of compliance certificate which itself required proof of structural resilience. The ICC, in turn,  denied that it owed a duty of care at all.

The Court of Appeal issued a surprising but logical decision.  They looked at all the evidence around the stadium planning, repairs, and in particular, whether the Trustees had relied solely on the Council’s actions. The Court determined that the Trustees had, in fact, sufficient prior knowledge about the vulnerability of the structure not to be solely reliant on the Council compliance process.

The Trust was, in effect, put on notice by the fact they had raised concerns about the roof in the first place and therefore the Trustees had they failed to deliver on their duty of care by not having had an engineer inspect the trusses and welds after the 2006 remedial work.

 The Court found that the Trustees were remiss in thinking they could simply pass their responsibility as owners and developers of the Stadium over to the ICC, who were only fulfilling a statutory duty.  

The case highlights the fact that Trustees’ duties are indeed very broad. The fact that the Trustees, in this instance,  were volunteers, is somewhat irrelevant. Their actions were still subject to review particularly because “the trustees were community and business leaders — representatives from banks, retail, local government and the Community Trust of Southland”.  Arguably, they weren’t devoid of commercial nouse and therefore their voluntary status wasn’t a justification for passing over responsibility to Council.

This decision doesn’t absolve Councils of duty, but the ambit of that duty is less than many may assume. Councils simply do not have a duty to a developer/building owner who is responsible for the defects in the first place, either through its own actions or those of its negligent professional. 

So in the case of Stadium Southland, the message is clear – the Trustees knew enough to do more. And by failing to do so, the renegged on their statutory duty of care to the Trust.

If you’re involved in a trust related insurance claim and wish to know more about your responsibilities and obligations as a trustee, then please contact us on 64 3 374 68888 or visit www.tp.co.nz.team

HELP WITH LAND + WATER

T+P are hosting seminars on water & nutrient management in Christchurch, Ashburton and Timaru once Plan Change 5 has been released.

Please pre-register your interest here and we will contact you as soon as the dates are confirmed.

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