A judge has spoken of the “sometimes almost impossible standards” imposed on employers in safeguarding employees who sometimes cause their own workplace injuries.
Christchurch District Court Judge Alistair Garland imposed fines and reparations totalling $35,312 on Pegasus Fishing Ltd and trawler skipper Brad Murray Gillon because of the injuries to the hand of an employee from Indonesia.
Pegasus will have to pay emotional harm reparations of $8000 and a $17,718 fine. Mr Gillon will have to pay reparations of $2000 and a $7594 fine.
The worker, Kahurdin, has since returned to Indonesia, with part of two fingers on his right hand amputed after his hand was caught in a winch mechanism aboard the Shemara in November 2015, south of the Akaroa Heads.
According to counsel for Pegasus, Cameron Lawes of Nelson, the worker was now getting on with his life. Although the man had not made a victim impact statement, he reported that he had some mobility in his fingers, had returned to work. “He is expressing it as being his fault, and getting on and beyond it,” Mr Lawes said.
Maritime New Zealand prosecuted the fishing company and skipper for failing to take all practicable steps to keep a worker safe at the workplace. They pleaded guilty.
Mr Gillon had already warned the worker – verbally, and in English to a worker for whom it was not a first language – after finding him attempting to grease the machinery while the winch was working with the turning drums pulling in the net.
There was then an accident in which his hand was trapped and he lost part of two fingers from his right hand, amputed after the hand was cut and fractured and received nerve damage.
Counsel for Maritime New Zealand, Alice McCubbin-Howell, described the accident, telling the judge: “It is completely accepted by the prosecution that it was not a particularly sensible thing to do.”
The risk had since been simply addressed by the employer with a yellow band with instructions not to go into that area while the reels were being operated. Guards have been fitted.
“It is a bit of a minefield for employers, isn’t it?” said Judge Garland.
The lawyer replied: “It is a high standard. There is no question about that.”
The sentencing session considered whether the victim’s foolish behaviour had to be taken into account in assessing culpability.
Judge Garland said: “These are difficult cases. The legislation does place an extremely high standard on employers – sometimes an almost impossible standard.”
For Mr Gillon, defence counsel Graeme Riach said the crew member had understood the instruction from the skipper not to do what he had previously attempted to do. He said his client was aged 47, and had been a fisherman for 27 years – 20 as a skipper. This was his first time before the court.
He referred to the accident taking place in the context of “rather bizarre conduct on the part of the crew member”.
Judge Garland said the crew member acknowledged he had disobeyed instructions, and his conduct had been “a material contributing cause of the accident”.
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