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

Written By: - Date published: 7:35 pm, July 25th, 2013 - 7 comments
Categories: health and safety, workers' rights - Tags:

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.

 

 

 

7 comments on “Tale four – the Death of Philip McHardy. Killed 31 August 2011 – struck by a tree ”

  1. jim 1

    Lady lets hope your comment does not go by like the wind that the coroner described.Blown away without any overseeing care.

  2. Arfamo 2

    It’s a tragedy Helen. I can see how the laxer regs and operating method and poor risk management all operated against this worker.

  3. tricledrown 3

    Rural workers in this country are being exploited by greedy employers because they are isolated and easily manipulated by these employers!
    Long hours, poor conditions,, abuse, pay delays, no pay!

  4. CnrJoe 4

    good grief. the worker is responsible for hazard management? and if the boss says otherwise?- what? theres no pressure?
    Excellent work by the ctu.

    • Chris 4.1

      just because you work for a contractor & you have a ticket does not make the contractor or the company hiring the contractor any less liable than the worker. if you have a look at my comment below, ive stated some facts from the health & safety employment act that anybody who hires has a legal obligation, regardless of any contract that may have been signed, to take all practical steps to ensure the health & safety of staff on site. its a pity that workers don’t know their rights a little bit better. contractors & management have been brainwashing workers on their legal rights as an employer since adam was in nappies.

  5. Chris 5

    hi this is a sad fact about our industry forest owners’ & contractors can not be trusted to make these decisions to pull guys out of the felling zone or breaker outs off the extraction line. you see if they done this then the contractor would be eligible 4 compensation 4 loss of production so they eliminate cost & liability by giving the guys tickets & there lies the responsibility on the worker 2 pull the pin ….this is a rarity it is not encouraged by management or contractors & it is a mental obligation on the worker to keep the crew going. you see they have tickets to protect management & contractors but no ticket 4 the workers 2 gauge wind & rain ………another classic example of company & contractor skipping liability they will give the fellers felling tickets but no over head hazard ticket ….also they have time to audit your stumps yet no time to educate or train the fellers THIS IS WHY WE AS WORKERS NEED AN INDEPENDENT AUTHORITY TO OVER RULE THIS BLATANT NEGLICT OF WORKERS under the h/s employment act 1992 it states that an employer which is anyone who employs; hires or rewards and in relation to any employee which means an employer of the employee..and includes; in relation to any person employed by the chief executive or other employee of a crown organisation…….as I understand the owners & contractors are just as liable as the worker …….it also states the employer [contractor…forest owners ] must take ALL PRACTIAL STEPS TO ENSURE THE HEALTH & SAFETY OF THE EMPLOYEE this is section 2a 1 & 2a2 of the code … and also section 6 a,b;c;d;e TAPS (take all practical steps)…….so legally how do they slip through the net surely they’re accountable 4 neglect!
    The pathetic thing about this situation is there’s no need for people to die while felling in heavy winds. this is the second case ive known of in the past 4-5 years. I guess there will be more. if there was compensation for the contractor & worker there wouldn’t be any deaths relating to bad weather. once again profit before people. this is why we need independent regulation. people for the people

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