WorkSafe New Zealand v Crafar Crouch Construction Picton Ltd [2019] NZDC 8209

Published 24 May 2019

Sentencing — WorkSafe prosecution — PCBU — consequential loss — physical harm — reparations — workplace death — reparation for loss consequential on physical harm to another — ACC shortfall — Health and Safety at Work Act 2015 ss 22, 36, 48, 151, 152 — HSWA — Sentencing Act 2002 ss 9 & 32 — Land Transport Act 1998 — Accident Compensation Act 2001 — Stumpmaster v WorkSafe New Zealand [2018] NZHC 2020 — WorkSafe New Zealand v Stevens and Stevens Limited [2018] NZDC 19098 3 Oceana Gold (New Zealand) Ltd v WorkSafe New Zealand [2019] NZHC 365 — WorkSafe New Zealand v Oceana Gold (New Zealand) [2018] NZDC 5274 — Big Tuff Pallets Ltd v Department of Labour (2009) 7 NZELR 322 — WorkSafe New Zealand v Department of Corrections [2016] NZDC 24865 — Department of Labour v Hanham & Philp Contractors Ltd (2008) 6 NZELR 79 — Department of Labour v Eziform Roofing Products Ltd [2013] NZHC 1526 — House Movers (Rotorua) Ltd v Ministry of Business, Innovation and Employment [2014] NZHC 1208 — Jones v WorkSafe [2015] NZHC 781 — Hessell v R [2010] NZSC 135. The defendant company, having pleaded guilty to a charge of breaching the Health and Safety at Work Act, ss 36(1)(a) and 48 ("HSWA"), faced sentence, following the death of an employee. The deceased was driving a truck that he was not licenced to operate, nor was he wearing a seatbelt. The truck ran off the road and rolled down a bank; the driver died at the scene. In determining reparations, the Judge considered case law and ordered the defendant pay $115,000 for emotional harm to the victim's family ($26,000 had already been paid) and, in light of High Court decision in Oceana Gold, a further $59,354.66 (plus $3,380 in disbursements) for consequential loss reparations, under the Sentencing Act, s 32. The Judge identified the following culpability factors in reaching a starting point for the fine of $625,000; the defendant's failure to communicate, monitor or enforce its polices; the obviousness of the hazard; the risk of potential injury of death, and; the degree of departure from industry standards. The Judge granted a discount of 25 percent for mitigating factors, namely; the defendant's good safety record (5 percent); reparations and remorse (15 percent); co-operation and remedial action taken (5 percent). A further 25 per cent discount was granted for the defendant's guilty plea. The final sentence was $115,000 in emotional harm reparations (less the $26,000 already paid), $59,354.66 (plus $3,380) for consequential loss, a fine of $351,563, and a costs contribution of $3,500. Judgment Date: 7 May 2019.