Worksafe NZ v Michael Vining Contracting Ltd [2018] NZDC 6971

Published 13 March 2019

Sentencing — WorkSafe New Zealand Prosecution — fatigue related death — Health and Safety at Work Act 2015 — Dept of Labour v Hanham and Philp Contractors Limited (2008) 6 NZELR. The deceased was employed by Michael Vining Contracting Limited (MVCL) as an agricultural worker when he died driving a tractor home. The deceased had worked a recorded 16.75 hours that day and a total of 197.25 hours over that previous fortnight. Fatigue was identified as the most likely cause of the accident. For reparations, the Judge ordered the payment of $80,000 and an additional $9,361 for financial loss. For the fine, the Judge reached a starting point of between $400,000 and $800,000, and assessed that it fell within the middle of that band, at $650,000. The Judge acknowledged that while the employee's work was seasonal and subject to very long hours, MVCL ought to have done more to protect the deceased from the dangers of excessive working hours fatigue. There was no implemented formal fatigue plan to manage that day; however, the Judge found no aggravating features of the offending to uplift the fine. The Judge granted a 25% discount for MVCL's co-operation with the prosecution throughout the investigation, its remorse, and the absence of a significant record of safety failures. The Judge also granted a further 25% discount for an early guilty plea, bringing the total fine to $325,000. A further order of costs was made of $2,656.50. Finally, the Judge considered the proportionality of the fine, and found that $10,000 was an appropriate fine. Judgment Date: 6 April 2018.