A Department of Labour prosecution arising from the death of a dairy farm worker who drowned in a Hastings effluent pond has been withdrawn.
Arnold Coles Garcia, 31, died after becoming trapped when a floating pump pontoon he was standing on flipped on a pond at Wairua Farms in Aorangi Rd, west of Hastings on October 5, 2009.
Mr Garcia, a Filipino, had been the farm's second in command since being employed in 2006.
Under the Health and Safety in Employment Act, the department charged the pontoon's Matamata-based manufacturer Reid & Harrison (1980) Ltd, claiming the unit was not safe for its known intended use.
Reid & Harrison's lawyer, Paul Mabey QC, challenged the prosecution in the Hastings District Court on Monday, claiming the unit had not been used to the maker's specifications.
Mr Mabey said the farm's owner, Ivan Knauf, had compromised the stability of the unit by ignoring the manufacturer's advice to secure the pontoon to the side of his 300-cubic-metre pond before any maintenance.
The farmer had instead been "cavalier" and erected a bridge as an anchor point for the unit.
It's understood Mr Garcia was standing on the pontoon while servicing the effluent pump's motor, when his foot became entangled in the pontoon, tipping it 180 degrees and dragging him under.
Defence questioned whether the farm's foreign workers could read warning signage written in English, and claimed Mr Knauf hadn't fully informed his workers of the danger of standing on the pontoon. "Are you aware of an employer's obligation to provide staff safety under the very legislation Reid & Harrison are getting prosecuted for?" Mr Mabey asked him.
"You left a pontoon floating in the middle of the pond and built them [workers] a bridge so they could do the exact thing the manufacturer warned about ...
"You were so cavalier with your mens' safety that you didn't really care."
Mr Knauf replied he did care, and said the manufacturer's recommendations were no safer than his "solution".
Previous attempts to follow factory guidelines hadn't worked, and though he had "limited" English, Mr Garcia had been warned verbally about the dangers, he said.
He claimed the instructions were ambiguous and unrealistic.
Another of the farm's foreign workers, Janat Limbu, who was the sole witness to the incident, told the court he tried desperately to lift the flipped unit to free his colleague. Through an interpreter, the Nepalese national said he was helpless to do anything. Mr Garcia's body was recovered only after a tractor dragged the unit from the pond.
Following evidence from the department's inspector yesterday, the prosecution withdrew the charge.
Judge Alistair Garland awarded $5000 in costs to Reid & Harrison.
Mr Mabey told Hawke's Bay Today his client "felt exonerated" with the result. "The company should never have been charged ... the prosecution was ill-conceived," he said.