A ‘wholly avoidable’ death
It took eight hours for anyone to officially inform her of son Nathan “Nate” Miller's death in a mid-morning forestry accident, a grieving mother told Gisborne District Court yesterday.
Karen Black's victim impact statement was read on her behalf by WorkSafe prosecutor Ian Brookie at the outset of a sentencing hearing for Mr Miller's employer Pakiri Logging Limited and the forest management company to which it was contracted — Ernslaw One Limited.
Each company has pleaded guilty to a charge of exposing an individual to risk of harm or illness in relation to the death of Mr Miller, 28, who was struck by a log on a forestry site inland from Tolaga Bay at about 10am on February 13, 2019.
He suffered severe injuries to his abdomen and legs and was unable to be revived by his workmates.
Judge Warren Cathcart heard sentencing submissions from WorkSafe and counsel for each of the two companies yesterday but adjourned the hearing before imposing any penalties or reparation.
Further submissions were necessary about an 11th-hour dispute as to how “consequential loss” reparation should be calculated, the judge said.
His decision as to final sentence will be released later.
In her statement, Ms Black told the court that on the day of the accident she was not contacted by Pakiri or Ernslaw.
It was only when police phoned her at 6pm that rumours of an accident involving her son were officially confirmed and her hopes he might just be seriously injured were finally dashed.
When she asked about the delay in official information, she was told it was due to lack of cellphone coverage and that Nate's name was inadvertently leaked in radio communication by helicopter rescue staff who attended the scene.
Ms Black said she heard of the accident through family members who found out about it on Facebook and through another forestry worker.
Her youngest son contacted her about 2pm and told her to rush to Gisborne Hospital.
Family there told her Nate was dead but she hoped it might not be true. The hospital was unable to give her any information.
It was the worst day of her life, Ms Black said. She hoped no other whanau would ever have to find out about the death of a loved one that way.
The last two years had been the toughest she had lived through.
She struggled at work for a while and some days could not face carrying on.
She wanted to see her much-loved son again but her partner made her realise she had to be there for her other three children and two grandchildren, including Nate's daughter who was seven when he died. (he also has a step-daughter.)
Ms Black said she wanted to see the industry adopt toolbox meetings and alcohol and other drug testing on a daily basis, and to fix things when they needed it so the whole industry could learn and be safer.
In submissions for WorkSafe, Mr Brookie said while a reparation figure for consequential loss remained in dispute, Worksafe was advocating for an emotional harm payment of about $130,000.
He submitted a starting point for a fine for the offence should be between $620,000 and $700,000 for Pakiri and $450,000 and $550,000 for Ernslaw.
WorkSafe was torn about the companies' culpability, which it initially considered was equal, but it settled on Pakiri being the principal offender with a high culpability and Ernslaw having a medium culpability, Mr Brookie said.
He noted Ernslaw was the fourth-largest forestry management company in New Zealand and had the power to intervene in its contractor's operation in a meaningful way yet failed to do so.
The incident resulted from high-risk work in a high-risk industry. It was not just in the context of a spur-of-the-moment misjudgement or a moment of carelessness, but a much more widespread and fundamental issue regarding the culture and manner in the way Pakiri workers went about their breaking out work.
The crew were not operating in accordance with the protocols expected for a high-risk work activity of this nature.
There were layers of other problems. For instance, a safe retreat distance was inadequately identified as 20 metres, yet it should have been the mean tree height of 45m.
Before the accident, both companies were on notice about critical safety breaches by the hauling crew as a result of two external audits on behalf of Ernslaw management.
Both companies failed to act on reports issued.
Mr Brookie said there was an abundance of industry guidelines, which were there for a reason.
While WorkSafe accepted the companies had safety systems in place on paper, unless those systems were actually put in place and people followed through, there was no point in having them.
Pakiri maintained it did not receive the full audit results from its foreman but the management knew the importance of those audits and should have actively pursued them, Mr Brookie said.
Pakiri had adopted an entirely passive approach in an industry where passivity would cost life, he said.
Ernslaw's response to the audit reports was only cursory, Mr Brookie said.
“We have two warning signs, plenty of notice prior to the incident, and I'm sorry to say it, but both these duty holders were asleep at the wheel.
“When those audits came in there needed to be decisive action,” Mr Brookie said.
This case featured systemic issues, including the failure to “top-down supervise”, the departure from industry guidelines for both defendants, and tragically what WorkSafe would characterise as a wholly avoidable death, Mr Brookie said.
Pakiri counsel Scott Mills said the company went into liquidation in August, last year, after difficulties exacerbated by Covid-19 and the lockdown.
(During the hearing the court was told that notwithstanding the company's liquidated status it would likely be able to make a reparation payment. It's ability to meet any fines imposed was however, questionable.)
Mr Mills rejected submissions by Ernslaw counsel Joseph Lill that culpability be apportioned in Ernslaw's favour 65 percent to 35 percent.
Mr Mills said the ratio should be much closer.
While Pakiri initially submitted emotional harm reparation be about $75,000 he accepted it should be more in line with the $100,000 submitted by Mr Lill.
Mr Lill's submissions included discussion about difficulties companies faced in trying to force cultural change within workplaces. It took time, he said.
Mr Miller's crew were trained and competent in their roles and had passed an external audit, Mr Lill said.
He challenged whether the audit report clearly flagged them as a crew with issues that needed addressing.