Te Puke cherry picker’s 9m fall: Company fined and ordered to pay injured worker

Complete Hose and Hydraulics (CHHL) admitted failing to comply with its duty to ensure the health and safety of a person.

The particulars said it was “reasonably practicable” for CHHL to have ensured the system was “designed and fitted in accordance with best practice, and good workmanship”.

Director Alan Lee said he was surprised other parties who also had oversight of the picker were not held accountable.

He’s worried a gap in regulations may lead to more injuries.

In a victim impact statement read by a family member, the worker said the reality of his injuries “hit home” when he woke from a coma and his parents told him how “lucky we [were]”.

“They didn’t know which way I was going to go. I nearly died,” he said.

The 24-year-old had multiple surgeries, his gall bladder removed, and spent three weeks in critical care and a further week in hospital.

On release, his mother cared for him for six weeks, and with his parents and some siblings supporting him in an Auckland hospital, the family missed out on Christmas together.

About six months later, he had a 12-hour surgery on his chest and stomach after a large hernia developed after previous surgeries.

He said he can no longer do things he used to enjoy, including hunting and fishing.

“I have to limit outdoor activities and have to be careful in what I am doing in everyday life. I have a permanent limp now.”

WorkSafe prosecutor Angus Everett said the worker’s outcome had been close to the highest imaginable.

“He suffered life-changing consequences,” he said.

“People have fallen from much lesser heights and not survived.”

The incident happened at a Te Puke avocado orchard on a cherry picker purchased in 1996.

CHHL provided engineering support to the orchard owner for about 12 years, including completing work on their machinery.

About September 2023, the picker required its annual safety certification, performed by Alpine Access Equipment Limited (AAEL) after each season.

On September 13, 2023, AAEL inspected the picker, but no certificate was issued as it was unclear if the picker had a “compliant safety check valve”.

Between September 13 and November 4, CHHL did work on the picker, including ensuring an external check valve complied with regulations.

CHHL made replacements as it saw fit, installed a valve that fitted the machine, and installed a new lifting and lowering system for the platform.

AAEL reinspected the machine. However, the orchard owner had removed hoses and the picker couldn’t be tested.

Based on the owner’s advice that a safety check valve was in place in the picker’s cylinder, AAEL certified the picker.

When the picker was used again, workers described it as “jerky”.

CHHL did not know the cause of the jerkiness, but felt the picker was safe to use as the new double-check pilot valve would prevent the cage from falling.

On December 16, the victim used the picker with no issues.

However, at maximum height, he pushed the down pedal and on release, the basket fell to the ground.

WorkSafe expert Pim Bakker found the hydraulic control system was not fitted in accordance with applicable standards and good workmanship.

There were “critical problems” with CHHL’s work on the hydraulic connections.

These problems, particularly that “bite rings” were not properly installed, led to the failure.

WorkSafe acknowledged AAEL had not been charged, but Bakker identified several certification failures by AAEL not attributable to CHHL.

Both lawyers agreed $50,000 was appropriate for emotional harm reparation.

“I agree that this reflects the extremely serious injuries suffered by [the victim], prolonged hospitalisation and time off work, the serious long-term effects of his injuries, and the loss of enjoyment in outdoor activities,” Judge Lawson said.

The man spent more than 26 months off work, getting Accident Compensation Corporation (ACC) payments at 80% of his previous income.

CHHL was ordered to pay a further $17,044.50 in consequential loss to cover the shortfall.

In setting a fine, the judge considered the operative acts or omissions at issue, the degree of harm, departure from prevailing industry standards, and obviousness of the hazard.

The judge agreed with CHHL’s lawyer that it was not a case where the defendant had exclusive oversight of the machine, and noted overlapping duties and a “lack of appropriate communication” between those with oversight about risks and the work on the picker.

“The involvement of these other parties and the complex chain of events meant that the hazard was not plainly obvious to CHHL and this reduces their culpability to a limited extent,” he said.

However, the judge noted the jerkiness, which CHHL was aware of, and said the picker could have been taken out of use until the issue was resolved.

“This would not have been unduly burdensome and would have effectively avoided the hazard. CHHL’s failure to do so is aggravating,” he said.

Considering the seriousness of the offending, relevant cases, and “accepting that the hazard was less than obvious”, the judge set a starting point of $380,000.

Counsel agreed that a 40% reduction was appropriate, comprised of 5% for co-operation with the investigation, 5% for previous good character and lack of previous convictions, 5% for reparation, and 25% for the early guilty plea.

This was further adjusted, due to CHHL’s financial situation, to a $26,000 fine paid in monthly instalments.

CHHL also has to pay $10,458.36 costs.

Lee told NZME that while he fully accepts responsibility for the mistakes he made – and that “what I put on was incorrect” – the inspector should be accountable for his role, and should not have signed off the machine without his own testing.

His understanding was that the regulations meant testing was not required before certification, and he compared it to a car being given a warrant of fitness with a sight-only inspection.

“Here’s a machine that’s just as likely to hurt and injure people, and the regulations don’t require any testing on it whatsoever,” he said.

There were also issues with the regulations that he hoped to raise in a different forum.

“There’s a whole host of stuff in there which is just, from a hydraulics point of view, totally wrong,” he said.

He felt frustrated that at this stage: “Nobody wants to hear”.

“We wait until the ambulance is called and then we get WorkSafe to come along and hit the person who was last working on [the machine].”

A WorkSafe spokesperson said in a statement that WorkSafe investigated other businesses but “only CHHL met the threshold for prosecution”.

“Regulatory and legislative amendments are led by MBIE. The best people to ask about any work being done on regulation relating to hydraulics would be the MBIE Health and Safety Policy team. We are not aware of any such work at the moment.”

The statement said the incident had devastating consequences for the worker and “our thoughts remain with him and his family”.

“The message is simple: equipment people rely on for safety has to be designed, maintained, adapted and tested properly. If changes are made, they need to be checked before the equipment goes back into use,” the statement said.

WorkSafe continued to “engage directly with businesses through assessment visits, including to residential construction sites, where a key focus is managing the risks of falls from height”.

“Businesses must identify critical risks, ensure equipment and systems are fit for purpose, and take proactive steps to protect workers from serious harm,” the statement said.

Hannah Bartlett is a Tauranga-based Open Justice reporter at NZME. She previously covered court and local government for the Nelson Mail, and before that was a radio reporter at Newstalk ZB.

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