The emerging doctrine under the Health and Safety at Work Act 2015 (H & S Act), which substantially increases the penalties available for H & S breaches, continues to develop. Our legal update dated December 2017 covered some notable early sentencing decisions applying the new parameters. Subsequent decisions have also proved instructive.

  • WorkSafe New Zealand v Avon Industries Ltd [2018] NZDC 4766 demonstrated the importance of training, not merely to correct bad practice, but to make every worker aware of the requirements of good practice and how to achieve it.
  • After having climbed onto the frame of a machine to free a jammed chain, a supervisor was warned not to do so by his immediate superior. The managing director of the company was not informed. However, the fact that the overseer knew of the incident was enough for knowledge of the incident to be attributed to the company under the H & S Act.
  • The supervisor subsequently acted in a similar way, and was badly burned after slipping and having molten zinc seep over his protective boot.

The District Court held that the warning was not enough. The matter should have been brought to management’s attention, and assessments of the risk involved in the work activity and the safety measures required should have been undertaken. Further, the safety system should have been documented and workers trained in its implementation, with their compliance continually monitored.

The District Court followed the approach from the Rangiora decision (discussed in our December 2017 update), which set out six culpability bands. The District Court accepted that here it was difficult to mitigate risk through mechanical protection, such as shields or screens. However, this simply heightened the importance of appropriate training and supervision. The District Court held that the offending was in the medium-to-high range, with a $600,000.00 starting point for fines. After deductions, the District Court ordered the company to pay a $371,250.00 fine and $30,000.00 in compensation to its employee.

  • WorkSafe New Zealand v Oceana Gold (New Zealand) Limited [2018] NZDC 5274 highlighted the importance of comprehensive safety procedures, including for activities required to put in place a safety measure.
  • A mining worker had been tasked with building a protective rock bund across the top of a 15-metre deep stope (an excavation for extracting ore, and near-ubiquitous practice in the gold mining industry). The worker’s vehicle was found at the base of the stope, the worker having suffered mortal injuries.
  • After identifying that Oceana Gold had adopted the solution of protective bunds to deal with the risk of a vehicle falling into such underground stopes, but had not sufficiently managed the risks involved in setting up that solution, WorkSafe charged Oceana Gold with failing to ensure, so far as reasonably practicable, the H & S of its workers.

Generally the maximum penalty for this charge is a fine of $1.5 million. However, there were a number of mitigating factors. The District Court considered a failure to identify and mitigate the risk involved in guarding against risk to be less culpable than a failure to guard against risk altogether. The company was also following standard industry practice, and had been inspected regularly without comment on this risk from the inspectors. Oceana Gold had also made an early guilty plea.

After weighing those factors, the District Court ruled that the case involved only moderate culpability. The District Court imposed a fine of $378,000.00, with an additional $350,000.00 to be paid in reparation to the worker’s family, on top of the company’s previous voluntary reparation payment.