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WorkSafe New Zealand v Northpower Limited [2017] NZDC 17527

Published 11 August 2017

Sentencing — breach of Electricity Act 1992 — intentionally or negligently permits to be done any work in a manner that is dangerous to life — electric shock — Department of Labour v Hanham and Philp Contractors Limited (2008) 6 NZELR 79 (HC) (2009) 9 NZELC 93,095 (HC). The victim was a trainee of the first defendant who was injured as the result of an "arc flash event" whilst undertaking work on a substation. The victim was supporting a transformer unit whilst another employee unbolted it. As the victim moved the transformer, a support bracket fell into a live connection which caused the "arc flash event" releasing a burst of energy. The victim sustained deep burns to his body as a result of this event. The substation that the victim was working on had a different configuration to many other substations meaning that the hazard controls set out in the work plan that was provided by the first defendant, and that had been peer reviewed by the second defendant was not appropriate. Both defendants acknowledged that they had breached the Electricity Act 1992 in a number of ways. In sentencing the defendants, the Court adopted the three step approach from Hanham & Philp. In terms of reparation, the Court had regard to the serious physical and emotional harm caused to the victim including the difficulty experienced by the victim in continuing his training, and the pain experienced during his recovery. The Court further had regard to a number of cases that discussed setting an award for emotional harm, and the consequences of the defendant's actions including the continuing emotional hardship experienced by the victim. Reparation was set at $30,000. As the defendants had already made reparation of $20,000, a further $10,000 was ordered. In assessing apportionment of the reparation, the Court had regard to the culpability of each defendant. The Court then fixed the fine in relation to each defendant having regard to the omissions made, the nature and seriousness of the risk of harm, the nature and seriousness of the actual harm caused, the degree of departure from the relevant industry's standards, the obviousness of the hazard, and the fact that the steps to avoid the hazard were available and would have involved minimal cost. Both defendant's were assessed as being in the "medium culpability" band. The Court reduced the fine taking into account the defendant's offer to make amends and reparation, co-operation with WorkSafe, genuine expression of remorse, remedial steps undertaken by both defendants, the defendants' favourable safety records, and in recognition of each defendant's early guilty plea. The first defendant was fined $30,000 and the second defendant was fined $26,000. The total sentence for the first defendant was a fine of $30,000 and reparation of $6,000; the total sentence for the second defendant was a fine of $26,000 and emotional harm reparation of $4,030. Judgment Date: 10 August 2017.