29 June, 2007

Record fine in health and safety case that sets legal firsts

An Auckland concrete manufacturing company was fined $225,000 in the Papakura District Court today in what the Department of Labour says is a record fine imposed in a health and safety case.

Judge John Cadenhead fined Fletcher Concrete and Infrastructure Ltd, trading as Stresscrete, $225,000 over a death and injury to two workers in March 2005: 46-year-old concrete worker Esera Visesio was killed and crane operator Finauga Sa’u was injured as a result of the incident.

In awarding the fine the Judge said he took into account reparation already made by the company to a number of parties totalling $250,000. In addition to the fine, Judge Cadenhead ordered Fletcher Concrete and Infrastructure pay reparation of $20,000 to Mr Sa’u for emotional harm.

Previously the largest fine for a breach of the Health and Safety in Employment Act had been $55,000 - awarded against Downer Construction in 2005.

The Department of Labour successfully prosecuted Fletcher Concrete in November last year under the rarely used section 49 of the Health and Safety in Employment Act. Judge Cadenhead handed down a written decision on 26 March 2007 confirming that Fletcher Concrete and Infrastructure knew the crane that killed Mr Visesio was faulty, as it was missing an integral safety mechanism for the safe use of lifting loads.

The Labour Department proved that the Company knew the failure to remedy this fault was likely to cause serious harm to someone, had failed to remedy the fault, and despite this, still continued to use the crane.

“These are incredibly difficult cases to prove,” says Graeme Buchanan, the Department of Labour's Acting Deputy Secretary Workplace. “Knowledge has to be attributed to someone high enough up in a company that it could be considered that ‘the company’ was aware that serious harm might result; likewise, that ‘the company’ failed to act.

“The death of Mr Visesio and injury to Mr Sa’u were needless and preventable. This was a tragic loss of life and no matter the size of the penalty, this can not bring Mr Visesio back for his family and friends.

“However, the size of this penalty should send a very loud and clear message to companies that they will be liable to a significant penalty for not taking action to keep workers safe,” says Mr Buchanan.

Mr Buchanan says the size of the fine imposed by the Court, having taken into account reparation already made by the company, emphasises the seriousness of this case and the Department of Labour is pleased with the outcome.

Chronology of events in the death of Esera Visesio

Background

Fletcher Concrete and Infrastructure Limited own and operate a business that trades as Stresscrete at 78 Hunua Road, Papakura, Auckland, where it produces a variety of pre-cast concrete products for the construction industry. At the site the company owned and operated a Goliath ‘A’ framed rail mounted gantry crane that was involved in the accident.

Prior to March 10, 2005
The crane itself was found to have a number of defects, which included having no limits on the crane. This meant that there was no fail-safe safety mechanism to prevent the two blocks that had the falls of rope between them, from hitting each other.

A number of people including employees and a crane serviceman advised the operations manager at the site that the rope guide on the crane had been removed and needed to be replaced.

Without a rope guide, this particular crane had no limits – it being inherently and fundamentally unsafe to operate a crane without limits.

At the instruction of management the crane continued to be used.

On March 10, 2005 – the day of the fatal incident
Crane 12 was being used to move a pre-cast concrete panel when the crane rope (which held both a lifting beam and a panel) broke as the two blocks came too close to one another. At the time, a panel was being lifted out of the panel shop.

Mr Vissesio received fatal injuries when the crane’s lifting beam struck his head. A second employee received soft tissue injuries resulting in severe bruising to his shoulders and back when he was crushed between the panel and a workbench.

It was found by the Court that the Defendant (through its Operations Manager) knew that the crane was being operated without a limit switch and was also aware of the consequences that could follow from using a crane in that condition.

ENDS

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