Court Summary - at a glance
Being a PCBU having a duty to ensure, so far as is reasonably practicable, that the health and safety of other persons, including Rozayah Hudson, is not put at risk from work carried out as part of the business or undertaking, namely contract milking on a dairy farm, failed to comply with that duty, and that failure exposed any individual, including Rozayah Hudson, to a risk of death or serious injury arising from the operation of the farm backing gate.
It was reasonably practicable for Kellisa Farms Limited to have:
- Ensured that the farm backing gate was guarded in accordance with the Australian New Zealand Standards AS/NZS 4024 or similar standard.
- Developed, implemented, and monitored an effective health and safety management system, including a farm health and safety plan, to ensure risks arising from exposed rotating shafts and other mechanical hazards were identified and controlled.
The RH & JY Trust (the Trust) owns the 160 hectare rural property and dairy farm which supports approximately 480 cows located at 102 Dickinson Road in Waiotahe (the Farm).
The Trust carries on business as a miking shareholder by way of a FarmWise Contract Farming Agreement (the FarmWise Agreement) and engages KFL to undertake contract milking work at the farm.
Mr and Mrs Hulena of KFL, both reside at the Farm’s main residence at 14 Dickinson Road. Scott Topp was employed as ‘2IC’ at the time of incident and was a full-time worker for the Defendant. Mr Topp is also the grandfather of the deceased victim involved in the incident, six year old Rozayah Hudson.
On Thursday, 17 September 2020, at approximately 5.00pm Rozayah Hudson arrived at the Farm with Mrs Hulena, who dropped him and two other children (both aged four years old) on a track near the cowshed. The children wanted to chase some pigs off the track back into the house paddock (which is adjacent to Mr Scott’s on Farm residence).
Mr Topp was in the cowshed nearing the end of milking, as the last of the cows to be milked for the day entered the Farm’s dairy rotary platform.
The rotary dairy shed on the Farm was constructed in or around the 1960’s and contains a 40 bail milking system, and an electronic backing gate used to herd cows forward into the rotary dairy shed for milking from the yard.
Mr Topp was with one of the young children who had just arrived on the cupping side (cups on) of the rotary platform and the child was standing on the top of a table near where the where the control switches for the rotary platform and the backing gate are.
The other children present, were both standing on the ‘hock’ rail of the backing gate, waiting to ride the gate back from near the cowshed to the far end of the yard.
While standing near the switch panel, the child in the rotary dairy pressed the lower button on the control device to activate the backing gate for it to travel back to the far end of the yard, where it automatically stops when it trips a travel limit switch. Mr Hulena was working on the cups off side of the rotary dairy at the time.
The backing gate was activated and it started to move slowly back to the end of the holding yard. The children were on the low or ‘hock’ rail of the backing gate riding it back, as was common practice for the children to do on the Farm.
While holding on near the centre of the gate as it slowly travelled back, the right sleeve of Rozayah’s jacket became entangled in an exposed drive shaft coupling. The clothing pulled him into the gap between the driveshaft and the gate. By the time Mr Topp stopped the gate Rozayah had been fatally crushed.
Reparation of $110,000 ordered less the $17,000 already paid, amounting to $93,000 and apportioned as follows:
- $12,000 (Grandad)
- $7,000 (Mother)
- $15,000 (Father)
- $15,000 (Grandmother with care of siblings)
- Additional for Grandmother for siblings $10,000
- Siblings $34,000.