Tale Three – the Death of Sean Mortensen. Killed 20 January 2010

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.  The first two stories are here and here.

Sean Mortensen was killed at Robin Hood Bay, Port Underwood in Marlborough.  He was 34  years old.  He worked for Pelorus Contracting Ltd and was in a forest managed by Merrill and Ring Ltd.  Merrill and Ring is a NZ subsidiary of an American forest company.   Interestingly last time I looked it  had taken action against the Canadian Government using the NAFTA!

M&R  contracted Robinson Forest Management to provide health, safety and quality services to is operations.

On 20 Jan 2010 Sean started work at 6.30am.   He   was carrying out machine assisted tree felling .  At 10am it was smoko time but they were up to the last tree and they decided to fell it before stopping for smoko.

The process being used  involved connecting a tree to the mainline of a cable hauler prior to felling it.  The line was not to assist with determining the directions of the fall, but to stop the tree sliding away downhill and being difficult to retrieve once it was felled.  The effect of the tree being connected should not have been realized until the tree was down, but this can only occur if there is sufficient slack in the mainline from the outset.  The attached  main-rope was in the way of where Sean wanted  to work to cut the tree.  He  radioed  the machine driver to put some tension in the rope to lift it out of the way- too much tension was in the rope and when the tree fell it was pushed  backwards into Sean instead of  falling forward to the ground as intended.    The Coroner noted that the hill they were working on was so steep that Sean could not see how much tension was in the line nor could he see the hauler from where he was.

The tree rested on top of him.  Despite desperate attempts by his crew to get the log off him and revive him, he died including from multiple internal injuries and asphyxiation.  He tested positive for  marijuana use but the amount in his system was inconclusive to establish drug related impairment as a contributing cause to this accident.

The DOL investigation raised concerns with three elements relating to this accident –

• the method of falling the tree;
•  the competency of staff ;and
•  the adequacy of the employer and Merrill and Rings health and safety programme to minimize the risk from the work.

In regards the felling method – it said was not an “accepted/recognized” method for felling and there were other standard techniques that could have been used.  Workers on Sean’s crew said the method they were using was widely used by gangs in the area.  The DOL said the method had a number of hazards including the tension in the ropes issue.  They also found Sean’s tree cutting method did not meet industry standards and he was primarily employed in breaking out.  They found his cutting method had  increased the risk.  It found the method of felling being used had been developed locally without any hazard assessment.

Sean had worked for Pelorus for 9 years and held standards in tree felling and breaking out.  He was unqualified in machine assisted felling.  The only real experience he had in this process was from watching others do it from time to time. He was regarded by his workmates as very safety conscious.  The 19 year old workmate assisting him at the time was also unqualified and only had 2 weeks tree felling experience.

The investigation noted that Pelorus was in the process of applying to ACC to join a discount programme (WSMP) so had a detailed health and safety system but it was mostly incomplete and hazards were not identified as to whether they were significant and it did not cover machine assisted tree felling.  The DOL thought the system showed the company had a lack of knowledge around the management, recording and monitoring of significant hazards – quite a failure for a logging company!!

Merrill and Ring had worked with Pelorus for 13 years.  They used Robinson Forest Management to carry out forestry crew supervision and health and safety auditing.  Both these companies were aware that  the process being used by Sean was used by its contractors.  Neither had any technical knowledge of the process.  Robinsons had not observed the process being used and there were no records of it.  They required Pelorus to have a comprehensive system.  These requirements are  listed in the investigation report – the list does not include a requirement for trained health and safety representatives nor appear to cover issues such as fatigue management, weather policies etc.

The DOL found a number of practicable steps that the company should have taken were not taken in regards to Sean’s death.  It found there was insufficient evidence to determine if Merrill and Ring  had met  its duties.  It found insufficient evidence to suggest Sean was in breach of his duties as an employee under the Act.

The report did not make any recommendation regarding prosecution and  none was taken.

The Coroner conducted an inquiry.  She found shortcomings in the employers health and safety system.  She asked why Sean had chosen to use the method he did to fall the tree and one explanation given was that without it the tree may have been unrecoverable and “felling waste”  was not in his nature.  As another worker stated, that by using the method “you don’t have to try and run down the hill and muck around  hooking it up in the scrub.  As soon as you drop it, you can just pull it straight away”.  It appears the method was dangerous but productive.

The DOL told the Coroner that it believed Pelorus has failed in its duties under the Act but that “legal advice” taken was that there was insufficient evidence to provide a reasonable prospect of conviction so  no prosecution was taken.

The Coroner formed the impression from the Company at the hearing,  that the ”safety ethos at the site in relation to tree felling did not extend appreciably beyond acknowledging that tree felling is inherently dangerous, that every tree poses its own set of risks, and thus that everyone needed to be careful at all times”.

She found no documentary evidence of objective assessments of risk relating to the process being used nor strategies to manage it.  She said the approach relied on workers raising concerns and discussing solutions but the weakness was there was no system.  She made a point similar to the Coroner that considered the death of Michael Stevens that people don’t know what they don’t know and when they have insufficient training this is dangerous.

She found the attitude of the witnesses from Pelorus  “disconcerting” as they repeatedly stressed forest work was dangerous without any perception that formal polices are needed.  She found that Seans failure to recognize the line needed slack in it  may have been due to tiredness, impatience or distraction with smoko due and that she could not determine the impact of prior cannabis use  but she also considered his actions need to be seen in the context of the culture he worked in.  The DOL inquiry provides no evidence of these things being considered, no hours of work, weather conditions, employment conditions are included.

Media reports recorded the DOL saying tp the Coroners  hearing that the company had  refused to allow the Department of Labour to formally question management and staff about the accident following initial interviews immediately after it occurred,  and in other reports the Company owner Andrew Stewart says he doesn’t agree his company had shortcomings and that his business has always encouraged staff training in the area of health and safety.

During the hearing the DOL reported it had revisited the site one year later and had identified  that Pelorus Contracting  had again failed to achieve basic compliance requirements, including

• Unwarranted and unregistered crew vehicles on the work site.
• Uncertified protective structures on skidders, excavators and a bulldozer.
• Inadequate operator protection on an excavator.
• Inadequate traffic management, with inadequate road signs and warnings of the work taking place.
• An excavator grapple ram pin being held in place by wire.
• A worker felling trees without adequate eye protection.

It noted that after almost all the failings had since been fixed, and an unannounced follow-up visit three weeks before the hearing  had shown that Pelorus Contracting crews had “stepped up their game”

On 22 April this year I sent in an Official Request of the Pelorus file to MBIE to see what follow up work had taken place with this company.  The Company was visited on 16.2.11.  for a workplace assessment.  This appears to have been the first visit after the death and was one year later.  This is where those failings listed to the Coroner above  were identified.  By June that year these deficiencies were noted as resolved except the  D7H dozer remained un-certificated.  It is unclear if this machine was used during this period in this condition.

The inspector noted the company was non- compliant in most areas checked.  He noted that overall compliance was very poor and M&R and Pelorus had very limited knowledge about their legislative responsibilities.  He recommended multiple enforcement notices be issued. It appears 8 Improvement Notices were issued as a result.  Prohibition notices were available to these inspectors to stop this work but these were not used.

The next assessment was in October that year.  It notes no compliance issues on this visit.  The DOL then held a safety breakfast with the crew in January 2012.  In August 2012 the Breaking Out process was assessed by the DOL.  While doing so, hazardous tree felling practice was observed with two tree fellers too close to each other and not looking at each other (working within one tree length of each other).  A written warning was issued.   There does not seem to have been any other visits since.