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Forestry manslaughter trial a marker for WorkSafe

The man accused of New Zealand’s first forestry-related manslaughter is being used by WorkSafe New Zealand to “lay down a marker” and the case is not based only on evidence, a court has heard. Sources: Manawatu Standard,

In the High Court at Palmerston North, defence lawyer Jonathan Temm made the statement during the openings of Paul Robert Burr’s trial. Lincoln Kidd, 20, died when a tree on a forestry block between Levin and Foxton, felled by Burr, crushed him in December 2013.

Mr Burr was using a Volvo harvesting machine at the time and is facing a charge of manslaughter, and Health and Safety in Employment Act charges, laid by WorkSafe New Zealand, in relation to the incident.

Mr Temm told the jury the case against Mr Burr was unusual, as it was laid in relation to a workplace.

“The decision to prosecute is not solely on the basis of evidence,” said Mr Temm.

“One of the issues in this trial is the role of the state regulator, WorkSafe New Zealand.

“WorkSafe New Zealand is looking to lay down a marker … for forestry, particularly.  “They want to say we are the new regulator here after Pike River, the Department of Labour and Mbie and the Royal Commission.

“They think Paul Burr is that marker.”

But Crown prosecutor Mr Ben Vanderkolk said Mr Burr ignored basic safety protocol, had no idea where his workers were on his site, and broke “the cardinal rule of forestry”.

Three elements would prove Burr’s guilt: the environment, the machine and the man.

The forest, on sandy ground, had immature and mature trees on it, standing up to 40 metres tall and weighing up to three tonnes.

There was debris on the ground, but none of it was rotten, meaning there was nothing inherently wrong with the site, Mr Vanderkolk said.

The machines being used on the site were all safe, working fine before and after the incident to clear the block.

Mr Burr, therefore, was responsible through his lax attitude to safety and lack of awareness about where his employees were.

Power lines had been struck by harvesting equipment while they were working on the site, and there was no real safety plan, Mr Vanderkolk said.

In an interview with police, Mr Burr said “we didn’t discuss all our hazards until we got to them”.

“The Crown says that is a significant and telling statement of omission on behalf of the defendant,” Mr Vanderkolk said.

Mr Kidd had cut down four smaller trees to enable the Volvo to get to other tress, and was among those trees when Mr Burr was using the Volvo.

Mr Burr could have looked around to see where Mr Kidd was, or used the Volvo’s on-board cameras, or called Mr Kidd on his cellphone, but did not, Mr Vanderkolk said.

Instead, he cut down trees oblivious to Mr Kidd’s whereabouts. One of the trees fell in an unexpected way, hitting the Volvo before crushing Mr Kidd, who was just seven metres away from the Volvo.

Mr Vanderkolk said that broke “the cardinal rule of forestry”, known as the “two-tree rule”. If someone was operating a harvester, they had to ensure there was no-one within two tree lengths of where the cutting was occurring.

It is alleged Mr Burr failed in that regard, Mr Vanderkolk said.

“In this scenario of man, machine and environment, Mr Burr is the man who failed, and failed to the criminal standard needed to prove and justify the criminal charge of manslaughter.”

But Mr Temm said everything Mr Vanderkolk had said was in dispute, including the number of trees felled before Mr Kidd died, who was driving the harvester when power lines were struck, and how mechanical equipment worked.

“What the defence says to you is that the Crown does not understand what happened on this block.”

There were also questions about why Mr Kidd was among the trees, as he was supposed to be working in a location well away from the harvesting that day, Mr Temm said.

A forestry advisor who carried out safety audits on Mr Burr’s company before Mr Kidd’s death said the processes of the company Mr Burr worked for did not raise any serious red flags.

Before working on the block between Levin and Foxton where Mr Kidd died, Mr Burr was contracted by Rayonier New Zealand to carry out production thinning on blocks in Waitarere.

Rayonier health and safety manager Wayne Dempster said production thinning involved cutting down specific trees in a forest, as opposed to cutting down all the trees.

Before a company was contracted, an audit would be done to ensure the company had safety plans in place.

Rayonier contracted Prime Forest Management to do a report on Paul Burr’s company before contracting them.

Shane Perritt from Prime Forest Management said he was quite comfortable with the way Mr Burr’s company operated, and its employees were risk-aware.

“There was nothing in there to indicate there were things that were either dangerous or wrong.”

Instead of having multiple people on the ground with chainsaws going at trees, Mr Burr’s company used mechanical harvesters to do the job.

Mr Perritt said that made the site safer, and it was to their credit that they were mechanised.

“When you have a person on the ground with a chainsaw, it is a higher risk than someone in a machine that guarded.”

The trial before Justice Brendan Brown will see 32 witnesses called by the Crown, and include a visit to where Mr Kidd died. During his opening address, the judge told the jury they would also go somewhere to see how a Volvo, similar to the one Mr Burr used, works.