Tale four – the Death of Philip McHardy. Killed 31 August 2011 – struck by a tree

I have collected up the available documentation on the men killed in the forest since 2008. I am going to try, using the documents I have, to tell their story – one at a time. I haven’t been able to contact all the families of these men and hope if any of them read them, they are not surprised or upset to see the details set out like this.   You can find the first three blogs here and here and here.

Philip McHardy was killed while working in a pine plantation block in Overton Forest Winton on 31 August 2011.  He worked for Don Contracting and was working in a Southern Forest NZ Ltd managed forest.  Don Contracting employed 5 employees at the time.    Philip has worked for 18 months for the company.

The crew started work at 7.15am.  Philip was felling trees while the rest of the crew were doing other work.  Just after 1pm, a tree blew over on top of him and killed him.  He had 20 years experience.  It is unclear if Philip had taken any breaks that day.

Workers working on that day gave various accounts of the wind when they started work.  One said that at the time he started there was already a “reasonable breeze” blowing.  Others said that by 10.20am the wind started to pick up.  The investigation report by the DOL references the MetService reports for the day.  They recorded winds of between 20-35 km/h in the area with a cold front on the way.    After lunch one worker had actually started down to talk to Philip about the weather getting worse but had got called away to another task.  A truck driver arrived on the site and witnessed the tree falling on Philip – it was the last tree in the stand and he was about to fell it but it fell before being cut.

The regulations for forestry were changed in December 2012.  The previous regulations applied when this accident happened.  Listed under Employers general duties it said:

“The employer or person in charge shall suspend all operations when adverse weather creates significant hazards that cannot be satisfactorily controlled”.

In the new regulations this duty has been removed from employers and shifted to the  employees !

The provisions now say:

Hazard management

 2.8.1 All employees must identify and regularly review hazards in the place of work (existing, new and potential) to determine whether

they are “significant hazards” and require further action.

 2.8.2 Operations that are affected by adverse weather or other events shall be suspended if hazardous conditions cannot be satisfactorily controlled.

The new code was written by the forestry employers and signed off by the  Minister.  On weather conditions, it is significantly inferior to the Australian standards and it is unclear why the duties have now been shifted to the worker.  This is likely inconsistent with the Act.

The tree that killed Philip was the last tree in the stand.  These are known to be dangerous as they have often grown protected by other trees so have small root balls and are less stable.  They are also  very exposed to the wind when standing alone making them more dangerous.  The investigation report notes that there is no guidance on the risks of the last tree standing in the old ACOP.  This has not changed in the new regulations despite this accident – there is no recognition that the response to weather conditions might very depending on the risks at hand.

The investigation report notes that hazards were regularly discussed and a Pre Operation Physical Hazard Identification was conducted for this work but wind was not on the list.  No investigation into hours of work, employment standards or production requirements is recorded neither is any description of the system in place in this worksite to recognize and manage hazards.  It is unclear what the process was if people had concerns or to identify emerging  risks.

The employer insisted that the wind was not out of the ordinary that day and if it had been Philip would not have been working.  Employee interviews record that employees felt able to stop if they thought the weather was bad – no inquiry was made into  if they would be paid for stopping or in fact if they had ever stopped on their own accord.  This “worker control” approach seems inconsistent with the regulations and with the revelations that one worker at least was going to talk to Philip about the weather before he diverted and the fact a tree blew over.  The inspector found no breach of the Health and Safety Act.

The Coroner held an inquiry into this death.  The truck driver who witnessed the accident gave evidence of seeing that tree swinging and bending over at the top with the wind.  “I would estimate that it was bent over by five-six meters at the top.  It was still held at the bottom”  He then saw  the tree get pulled out of the ground by the wind and fall.

The Coroner found that on the 31 August 2011 at Overton Forest, weather conditions were poor and the wind was increasing.  He noted that all the witnesses at the hearing made mention of the fact of strong winds but because they thought the area Phillip was working in was sheltered they did not suspend operations.  This was despite the fact they had seen other trees falling down on the skyline.  The Coroner on a slight margin accepted the employer did not have a duty to call the operation off in the circumstances of the day because Philip was autonomous in this aspect of his work.  He found he “was a hard worker, wanting to please and because of his work ethic, has continued with the tree felling in adverse conditions, wanting to get the job finished”.

The evidence at the Coroners hearing also concluded:

• that the trees being felled had small root balls and were easy to push over with diggers – this appears not to have been considered a hazard.
• the ground was soft after several days of rain making the soil weaker; and
•  the ground on which Philip was working  was water logged from water run off following the construction of an access track that pushed water over the area – again not noted as a hazard.

There was no evidence of any drug use.

The coroner found the accident occurred with the bringing together of a number of contributing factors including the wind and those factors noted above.  He  also felt that Philip working alone was part of the scenario leading to his death (had someone been nearby he may have had a caution given).

At 10.43am that morning, Philip had sent a text to his wife saying the area was getting windy – by lunch time he was dead.

At 3pm that day one of his children received a text from someone,  who heard it on the grapevine, that his dad had been killed.  He was the first in the family to know – the police notified his widow at 6.30 that evening.