‘Asleep at the wheel’
Two forestry companies have been fined and ordered to pay reparation and other costs totalling more than $1 million over the workplace death of a Gisborne man in 2019.
In a recently-released decision, Judge Warren Cathcart fined Pakiri Logging Limited $468,000 and Ernslaw One Limited $288,000, for the death of 28 year-old Nathan "Nate" Miller.
The level of the fines reflected the court's assessment of each company's degree of culpability.
In line with that assessment, the companies must pay a 60:40 share in other penalties - an order for reparation totalling $117.916, prosecutor's costs of $24,200, and an order for consequential loss of $138,492.
(In this case, consequential loss is a "top up" to cover the shortfall of Accident Compensation payments Mr Miller's direct dependents receive due to his death and the loss of his income.)
Pakiri Logging went into liquidation on August 28, last year. It is highly unlikely to be able to pay the fine. However, it has insurance, enabling it to pay the reparation to Mr Miller's family.
The reparation along with the orders for consequential loss and prosecutor's costs, were imposed "jointly and severally", which means if Pakiri cannot pay, its share must be paid by Ernslaw. In that event, Ernslaw's package of penalties will increase to $568,608.
Judge Cathcart said in this case, it was "just" to expect Ernslaw to bear responsibility for the total sum of the additional penalties if Pakiri could not pay.
He said notwithstanding Pakiri's liquidation and likely inability to meet a fine, it was appropriate to impose one. Doing so would publicly mark the company's accountability for its offending, protect the underlying integrity of the other orders made, and "ensure acceleration of Pakiri's corporate death".
The judge’s decision was reserved after a sentencing hearing in Gisborne District Court during March.
Mr Miller, 28, was directly employed by Pakiri Logging Limited, a Gisborne-based hauler and ground-based logging operation subcontracted by Ernslaw One, a foreign (largely Malaysian-owned) forestry company and the fourth-largest forest owner in New Zealand.
Mr Miller died from his injuries immediately after being struck by a log in the West Ho Forest inland from Tolaga Bay at about 10am on February 13, 2019. He was working there as a “breaker out” — someone who attaches cables to felled trees so they can be hauled out of the forest. It is considered one of the most physically demanding forestry jobs.
Each of the companies subsequently pleaded guilty to a charge under the Health and Safety at Work Act (2015) of exposing an individual to risk of harm or illness. (One of the three specific parts of the act the companies breached, carries a maximum penalty of up to $1.5million.)
At the hearing in March, the court was informed of Mr Miller’s mother’s anguish at having to wait eight hours for anyone to officially inform her of Nate’s death.
The court was also told Mr Miller’s death was wholly avoidable. A WorkSafe investigation found both companies failed to ensure the dangerous work being undertaken by him and his workmates in Crew 26 was done safely.
WorkSafe prosecutor Ian Brookie said audits commissioned by Ernslaw One and Pakiri from May to September, 2018, highlighted issues with the way a particular break out crew was operating.
Despite being on notice about the issues months in advance, both companies failed to take corrective action, which could have prevented Mr Miller’s death, Mr Brookie said.
Pakiri said it did not receive the full audit results from its foreman but the management should have actively pursued them, Mr Brookie said.
Ernslaw One’s response was only cursory.
It was alarming for Ernslaw — the fourth-biggest forestry management company in the country — not to be acting on audit results like this, Mr Brookie said.
“. . . both these duty holders were asleep at the wheel,” Mr Brookie told the court.
WorkSafe was torn as to how culpability should be apportioned but ultimately regarded Pakiri’s culpability as higher, Mr Brookie said.
Judge Cathcart agreed. Ernslaw as the forest management company had an important authorative role over its contractor and the means to enforce compliance.
"However, Ernslaw failed to monitor implementation of the external auditor's damning reports in 2018 about Crew 26. The contractual remedies available to Ernslaw here to sheet home to Pakiri the importance of ensuring the safety of break-out workers like Nathan in Crew 26, were not even entertained," the judge said.
In a statement yesterday, WorkSafe’s area manager Danielle Henry reiterated the companies failings, particularly the most crucial fault on the day of the incident - workers not abiding by the recommended safe retreat distance - the site's mean tree height of 45.4 metres.
Mr Miller was only 18 - 20 metres away from the skyline cable on which the log that struck him was being hauled.
“Had the two companies discussed the audit results as and when they were provided and taken action as a result of the issues identified, then this tragic incident could have been avoided,” Ms Henry said.
“This highlights the importance of clear communication and the need to follow industry practice — especially in a high-risk industry,” Ms Henry said.
In a press release yesterday, Ernslaw said the company, "fully accepts the fine and order of reparation and expressed its deepest sympathy to the family. “
As a result of the incident, Ernslaw had fully reviewed its systems and introduced significant operational and cultural changes to ensure an incident such as this did not happen again.
The company said Judge Cathcart recognised in his judgment the quality of that remedial action.
The lawyer for Pakiri Scott Mills said the company did not wish to comment.
Pakiri Logging Limited was incorporated in 2013. Its sole director is Mark Nyhoff who also owns 99 percent of its shares.
* This story was updated on July 21, 2021, after the Gisborne Herald received a copy of the judge's decision, supplied after the article went to print. Previous information was supplied by WorkSafe.