Worksafe New Zealand v Supermac Group Resources Ltd [2019] NZDC 15023

Published 23 August 2019

Workplace injury — paralysed — failure to ensure health and safety of workers — reasonably practicable — financial capacity — PCBU — Stumpmaster v WorkSafe NZ [2018] NZHC 2020 — Department of Labour v Hanham and Philp Contractors Ltd (2008) 6 NZELR 79 — MBIE v Fairbrass Builders (2011) Ltd DC Chch CRI-2013-003-000047, 7 May 2013 — WorkSafe New Zealand v Wai Shing Ltd and Franklin Wai Shing [2017] NZDC 10333 — WorkSafe v Ask Metro Fire Ltd [2017] NZDC 13314 — Oceana Gold (New Zealand) Ltd v WorkSafe New Zealand [2019] NZHC 365 — Davies v Police [2009] 2 NZSC 47 — WorkSafe New Zealand v Woods Contracting Services Limited DC Palmerston North CRI-2014-054-000732, 23 July 2014 — WorkSafe New Zealand v Kiwi Timber Protection Limited DC Whangarei CRI-2014-088-001912,8 December 2014 — Health and Safety at Work Act 2015 ss 22, 32, 38, 48, 151, 152 & 158 — Sentencing Act 2002 s 32 — 2014 WorkSafe Best Practice Guidelines. The defendant company faced sentence having pleaded guilty to one charge of failing to ensure, so far as reasonably practicable, the health and safety of its workers. A worker for the company was catapulted from a boom lift, causing serious injury including paralysis. The worker was found not to be at fault. However WorkSafe ascertained that the defendant company had failed in not requiring workers who were delivering, loading or unloading the boom lift to wear a safety harness, and had failed to provide training in the use of safety harnesses to workers while loading and unloading. This failure breached the 2014 WorkSafe Best Practice Guidelines. The Judge adopted a starting point of $450,000 for the fine, following case law and the criteria set out in Hanham. A 10 per cent discount was granted for the company's previous good record and co-operation with the investigation. The Judge declined to grant a discount for remorse, because of the conduct and statements of the defendant company's sole director and shareholder. A further 25 per cent was discounted for the defendant's guilty plea. The defendant submitted that it was unable to pay the reparation and/or the fine. This was supported by the company's financial records which showed that it was insolvent and, without a loan or outside financial injection, would go into liquidation. However, the defendant company's director refused to allow a forensic account to examine the financial records of the several other intertwined companies the director owned, so the Court could not ascertain the true financial position of company director and the veracity of his statements to the Court. The Judge found that where a defendant cannot pay, the option is to impose the full amount or nothing. The Judge did not accept the account given by the company director and ordered the defendant pay $100,000 in emotional harm reparations together with $138,000 in consequential losses, a fine of $304,750 (being the end fine after applying discounts) and $7,080 in prosecution costs. The Judge also directed the prosecutor to send a copy of the judgment to the Land Transport Safety Authority to consider the company director's fitness to personally hold a Land Transport licence or as the director of a company holding a Land Transport licence. Judgment Date: 6 August 2019.