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Frances

By Frances

I'm a Lawyer at CS Law

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14.03.19

Health and Safety Penalties

The High Court has released its combined judgment in three appeals against penalties imposed under the Health and Safety at Work Act 2015 (HSWA) (Stumpmaster v Worksafe New Zealand [2018] NZHC 2020 [9 August 2018].

The decisions clarify how the sentencing process under the HSWA will be approached, highlight the likely – and substantially increased – penalties under the new Act, and are a reminder of the critical importance of health and safety management for businesses.

Perhaps the most eye-catching aspect of the judgment, however, is the Court’s indication that allowances for mitigating factors should be reconsidered. A discount of 30% for mitigating factors such as taking remedial steps, paying reparations, and a prior good record has until now been routinely applied to fines under the HSWA, but the Court said that a discount at that level should only be expected where all the relevant factors are present to a “moderate degree”, or one or more of them is present to a “high degree”.

In particular, the Court noted the importance of taking early and meaningful steps to assist an injured employee, saying that “the time immediately after an accident are times of greater stress and uncertainty for the victim and family, and genuine efforts to assist from the outset are reflective of the matters for which this extra credit is given.”

What happened in each case?

WorkSafe v Tasman Tanning Company Ltd:

Tasman was a leather tanning company. A forklift driver suffered a concussion and experienced ongoing symptoms after he was overcome by hydrogen sulphide gas released during work, involving communication errors and employees acting outside their designated tasks. There had been a previous incident in the last 3 years involving the same gas. The driver had not had the appropriate safety training or been provided with gas monitoring equipment. This offending was considered to fall at the high end of the medium band. Tasman’s appeal was partially successful – the fine was reduced from $380,000 to $363,000.

WorkSafe v Niagara Sawmilling Company Ltd:

Niagara had conducted a sawmilling business since 1954. A worker had two fingers partially amputated when they were caught in machinery that was not properly guarded, despite an external expert’s recommendation. Niagara had previous offences in 2003, 2011 and 2015. This offence was considered be of medium culpability. The final fine was $323,437, confirmed by the High Court. 

WorkSafe v Stumpmaster Ltd:

A palm tree felled by an employee fell on and seriously injured a woman who was walking past the property. There had been inadequate measures to exclude passers-by from the area where a tree might fall. This was also considered a medium culpability case.  The assessed fine was $250,000.00, which was reduced to $90,000.00 payable over a number of years because Stumpmaster was a small one-person company. 

The High Court has confirmed the previous approach of using four sentencing bands based on the culpability of the offending. Those bands are the starting place for calculating the fine, before application of mitigating and aggravating factors. The bands were set as follows:

Culpability:          

Sentencing Band under previous Act:

Sentencing Band under HSWA:

Low

Up to $50,000

Up to $250,000

Medium

$50,000 to $100,000

$250,000 to $600,000

High

$100,000 to $175,000

$600,000 to $1,000,000

Very High

$175,000 to $250,000

$1,000,000 to $1,500,000

The Court rejected the appellants’ argument that the increase in penalties only applied to the most serious category of offending and stated that the increase in penalties was intended to cause substantial uplifts in fine levels across all categories of offending. The bands were considered to reflect that purpose, and the increase in each band approximates the six-fold increase in the maximum sentence introduced by the HSWA.