WorkSafe New Zealand v Oceana Gold New Zealand Limited [2018] NZDC 5274

Published 05 April 2019

Failing to ensure as far as reasonably practicable the health and safety of the victim — duty to eliminate risks to health and safety of employees — death from fall from height — mining company — defendant's ability to pay fine — reparations — Department of Labour v Hanham & Philp Contractors Ltd (2008) 6 NZELR 79 — Health and Safety at Work Act 2015, ss 30, 151 — Sentencing Act 2002, ss 7-10. Following a fatal accident in which one employee was killed, the defendant mining company pleaded guilty to a single charge of failing to ensure so far as was reasonably practicable, the health and safety of the victim. When the accident occurred the victim had been building a rock wall inside the mine, to prevent the hazard of machinery falling into a blasting hole called a stope. His vehicle fell into the stope, leaving him fatally injured. It was unknown exactly how the accident occurred, but the Court was satisfied that the victim was careful and responsible, that mine inspectors had raised no concerns with the defendant's process of dealing with open stope hazards, and that the defendant's process was standard practice within the industry. Nevertheless the defendant had pleaded guilty on the grounds of paying inadequate attention to the inherent risks of implementing the process. Following the accident the defendant had paid a substantial sum of money to assist the victim's family, including paying for the victim's tangi. The defendant also invented a new method of mitigating or eliminating the hazard which had caused the fatal accident. In setting a penalty, the Court reached a figure of $350,000 as the net loss of the victim's future earnings, and ordered the defendant to pay this amount in reparations to the victim's family. Given the various mitigating features mentioned, the Court judged the defendant's culpability as moderate, towards the middle or lower end of that range, and assessed the fine at $700,000. The defendant earned discounts for reparations paid, cooperation, development of a solution to the safety hazard, guilty plea, remorse and contrition. The final fine was $378,000. The Court also ordered costs of $3672. Judgment Date: 8 May 2018.