The Occupational Safety and Health Authority and Agency v Grand Bay Paper Products Ltd
| Jurisdiction | Trinidad & Tobago |
| Judge | Seale, C. |
| Judgment Date | 28 July 2015 |
| Court | Industrial Court (Trinidad and Tobago) |
| Docket Number | OSHA 001/ 2012 |
| Date | 28 July 2015 |
Industrial Court
Seale, C.; Aberdeen, M.; Khan, M.
OSHA 001/ 2012
Mr. K. McQuilkin Ms. S Sookraj-Beharry Attorneys at law for complainant.
Mr. S. Singh Ms. T. Rojas Attorneys at Law for defendant.
Employment Law - Safety and Health — Amputation — Guilty plea — Sentencing — Whether defendant ought to be granted discount in sentencing — Occupational Safety and Health Act, Ch. 88:08.
The Occupational Safety and Health Agency (“the OSH Agency/complainant') made an application to the Industrial Court dated January 6, 2012, pursuant to sections 97A and 83(1) of the Occupational Safety and Health Act, Ch. 88.08, (“the OSH Act). The OSH Agency initiated proceedings against Grand Bay Paper Products Limited (“the Company/ defendant) for breaches of sections 6(1), 6(2)(a), 6( 2)(d), 6(7), 13A(1), and 25 C(1) of the OSH Act.
The complainant also sought the payment of a fine which is payable where a person is critically injured as a result of the Employer having contravened the Act, pursuant to section 86(1).
The application arose out of an accident which occurred on January 7, 2010, in which Mr. Anand Parrag, a Tissue Machine Helper with the Company sustained an injury to his left foot when it became entrapped in the tissue machine. His leg was subsequently amputated.
At the hearing on November 22, 2013, Counsel for the defendant raised two preliminary points namely, that the complaint must be brought in the name of the Inspector and not the Authority or Agency and that the claim was statute barred because it was brought on the anniversary of the two years from the occurrence of the event. The Court gave directions for both parties to make written submissions on the points.
After considering the parties' submissions, the Court in a written ruling delivered on March 17, 2014, decided against the defendant on both points and directed that hearing into the substantive matter would proceed.
By Notice of Appeal dated March 21, 2014, the defendant appealed the Court's decision. In an oral decision delivered on July 7, 2014, the Court of Appeal upheld the Court's decision and dismissed the appeal.
After some adjournments, hearing into the substantive matter was scheduled to commence on May 19, 2015 and continue everyday up to May 22, 2015. The defendant indicated that it planned to adopt a particular course and asked the Court to vacate hearing on May 19th. On May 201h the defendant entered a plea of guilty to the allegations that it had committed safety and health offences as follows:—
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a. Failure to prepare a safety and health policy contrary to section 6(7);
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b. Failure to conduct a suitable annual risk assessment so as to determine potential risks to employees' safety and health whilst at work contrary to section 13A(1);
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c. Failure to securely fence every part of the transmission machinery contrary to section 25(C) 1;
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d. In light of the above contraventions the company has failed in its general duty under section 6(1) to “ensure, so far as is reasonably practicable, the safety, health and welfare at work of its employees”;
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e. Failure to provide a safe system of work contrary to section 6(2)(a); and
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f. Failure to provide such instruction, training and supervision as to ensure the safety health and welfare of its employees, pursuant to sections 6(2)(d).
Pursuant to section 83 of the OSH Act, the defendant is liable to a fine of twenty thousand dollars ($20,000.00) for each of the Safety and Health offences set out above.
In addition, consequent upon the defendant's acceptance of guilt in the aforementioned offences, and pursuant to section 86(1) of the OSH Act, it is liable to a fine of one hundred thousand dollars ($100,000.00) or an amount equivalent to three years pay, whichever is greater, as a result of its contravention of the Act which resulted in the critical injury of Mr. Parrag. The fines are all maximum fines. [Section 68 of the Interpretation Act, Ch. 3:01 is relevant.] Therefore, it is within the jurisdiction of the Court to determine whether or not the maximum fine should be imposed.
When the Industrial Court sits to hear complaints in respect of safety and health offences, it is exercising a criminal jurisdiction. [Inspector of Factories v. NH International (Caribbean) Limited &Ors, CA No. 229of 2009, dated July 17, 2013]
There is no classification of offences in the OSH Act into serious offence or minor offence etc. However, section 4 of the Act includes a definition of “critical injury”. Critical injury is defined in part, as one that involves the amputation of a leg, arm, hand or foot. The same section also defines “dangerous” as “likely to create risk to safety or health or cause bodily injury”. In considering the seriousness of an offence, the Court receives some aid from these definitions.
In the English jurisdiction when assessing the seriousness of an offence in a health and safety case which does not involve a fatality, the sentencing Court takes account of a number of factors set out in R v. Howe & Son (Engineers) Ltd. [1999] 2Cr. App R (S).
A case which this Court has had regard to in some of its decisions cited by both parties in this matter. [See Application No. OSHA 001/2008, Occupational Safety and Health Authority v. N&S Company Ltd., dared July 30, 2010.; Complaint No. OSHA 003 of 2012, Occupational Safety and Health Authority and Agency v. Green Dot Ltd. dated March 25, 2015.; Complaint No. OSHA 005 of 2012, Occupational Safety and Health Authority and Agency v. Pres-T-Con Limited dated April 23, 2015] In R v. Howe, Scott Baker, J. (as he then was) stated:—
“The objective of prosecutions for health and safety offences in the work place is to achieve a safe environment for those who work there and for other members of the public who may be affected. A fine needs to be large enough to bring that message home where the defendant is a company not only to those who manage it but also to its shareholders.”
The Court in that case set out a number of aggravating features and relevant factors to be taken into account in determining the level of fine. The specific aggravating features include:—
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a. a failure to heed warnings; and
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b. where the defendant has deliberately profited financially from a failure to take necessary health and safety steps or specifically run a risk to save money.
Among the mitigating features are:—
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a. Prompt admission of responsibility and a timely plea of guilty;
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b. Steps to remedy deficiencies after they are drawn to the defendant's attention; and
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c. A good safety record.
The Court also noted the following as matters relevant to the sentence:—
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a. the degree of risk and extent of the danger created by the offence;
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b. the extent of the breach or breaches, for example whether it was an isolated incident or continued over a period; and
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c. the defendant's resources and the effect of the fine on its business.
In Shawn Parris v. the State, Cr. Appeal No. 12 of 2004 [Dated May 25, 2005] (unreported), relied on by the complainant, Warner, J.A. in delivering the judgment of the Court referred to the English case of R v. March [[2002] E.W.C.A. Crim. 551 (15th February, 2002)] in which the law on sentencing was summarised. The English Court of Appeal considered the applicable law as gleaned from: “Costen, (1989) 11 Cr. App. R. (S) 182; Raymond Reay (1992) 13 Cr. App. R. (S) 533; Sharkey and Daniels (1995) 16 Cr. App. R. (S) 257; Kelly [2002] 1 Cr. App. R. (S) 11; Paul Kevin Smith [2002] 1 Cr. App. R. (S) 90.” It then ventured the following summary of the law:
“The general principle is that a plea of guilty attracts some discount from the sentence that would have been imposed in the event of a conviction following a not guilty plea. This principle, developed in the case law, has now received “statutory recognition” in s.152 of the Act: Archbold (2002 ed.), at para. 5-154. That guilty pleas should, in general, attract lower sentences, is in the public interest; they save time and expense and may be taken as an indication of remorse. If anything, guilty pleas are all the more important in cases which, if fought, will require vulnerable witnesses to give evidence.
(2) The principle, however, is only a general principle; for instance, there is no invariable rule to the effect that a maximum sentence cannot be given in the case of a guilty plea. There are a number of well-established exceptions to the general rule and their list is not closed. When such an exception applies, a maximum sentence may be imposed, even in the event of a guilty plea. That said, given the general principle, it will rarely be appropriate to impose a maximum sentence where there has been a guilty plea.
(3) The exceptions to the general rule include at least the following: (i) where the imposition of the maximum term is necessary for the protection of the public; (ii) where the plea was of a tactical nature; (iii) cases where a plea is practically speaking inevitable; (iv) where the count is a specimen count. As to the effect of these exceptions, we incline to the view that the existence of an exception does not automatically mean that the maximum sentence is to be imposed regardless of a plea of guilty; all the circumstances fall to be considered.
(4) On the authority of Reav (supra), at p. 535, it would appear that a further exception to the general principle arises in cases where the offence is of such seriousness that the public interest requires the imposition of a maximum sentence. If seriousness of the offence, by itself, meant that the maximum sentence was to be imposed despite a plea of guilty, then reconciling this suggested exception and the authorities would not be...
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