We are two years into the Health and Safety at Work Act 2015 (HSWA) and there have been some recent cases of interest and some aspects of the legislation still remain untested.
Under the HSWA fines are significantly higher, averaging $281,464. High risk industries continue to be agriculture, construction and manufacturing. To date, there have been 32 judgments under the HSWA, with 26 sentencing decisions.
Some of the largest fines have been:
|The Tasman Tanning Co Ltd||Exposure to toxic gas||$380,000||$18,000|
|ITW New Zealand||Lost 3 fingers||$236,250|
|Niagara Sawmilling Co Ltd||Lost 2 fingers||$323,437||$32,160|
|Oceana Gold (NZ) Ltd||Death||$378,000||$550,000|
|Toll Networks (NZ) Ltd||Death||$506,300||$118,020|
|Miller Foods Ltd t/a Remarkable Tortillas||Lost tips of 3 fingers||$0 (reasons not published)||$52,283|
|Easton Agriculture||Death||$0 (reasons not published)||$85,000|
Hot off the bench is a decision by the High Court, in what was the High Court’s first decision on the correct approach to sentencing under the HSWA. Stumpmaster v Worksafe NZ involved a lone worker conducting residential arborist work who failed to adequately protect the danger area. The appellants claimed that the fines awarded by the District Court were excessive.
This decision confirmed the approach sentencing courts should take when fixing fines, clearing up some inconsistencies in previous decisions by the District Court.
The sentencing process is to involve four steps:
- Assess the amount of reparation to be paid to the victim.
- Fix the amount of the fine by reference to culpability bands, and then adjust the starting point for any aggravating and mitigating factors.
- Determine whether further orders are required (eg training orders).
- Make an overall assessment of the proportionality and appropriateness of the total imposition of reparation and fine on the defendant. This step requires an assessment of the defendant’s ability to pay the fine.
The High Court decision confirmed the new guideline bands as follows:
|Low culpability||Up to $125,000|
|Medium culpability||$125,000 to $600,000|
|High culpability||$600,000 to $1,000,000|
|Very high culpability||$1,000,000 plus|
In Stumpmaster, the court expressed concern that standard discounts for mitigating factors were routinely given and said that more analysis was required before large discounts should be made.
Mitigating factors include: payment of reparation, remorse and co-operation with WorkSafe, remedial action taken and a favourable safety record. The High Court said that a discount of 30% should only be expected in cases where all the mitigating factors are exhibited to a moderate degree or one or more of them to a high degree. Also of significance is that the Court stated that genuine attempts to assist the victim and their family from the outset merits particular noting and should result in credit.
Discount for the above mitigating factors is in addition to the 25% discount which may be available to a defendant on entering a guilty plea.
Workplace Law team
If you have any queries in respect of the above, or any other Workplace Law issues, please contact a member of Lane Neave’s Workplace Law team:
Employment: Andrew Shaw, Fiona McMillan, Gwen Drewitt, Maria Green, Hannah Martin, Joseph Harrop, Holly Struckman, Alex Beal, Giuliana Petronelli, Abby Shieh
Immigration: Mark Williams, Rachael Mason, Daniel Kruger, Nicky Robertson, Julia Strickett, Ken Huang, Mary Zhou, Shi Sheng Cai (Shoosh), Sarah Kirkwood, Janeske Schutte, Lingbo Yu
ACC: Andrew Shaw
Health and Safety: Andrew Shaw, Fiona McMillan