WorkSafe New Zealand v Ikon Homes NZ Ltd [2019] NZDC 16134

Published 14 February 2020

Sentencing — failing to ensure health and safety of workers — construction — crush injuries — Department of Labour v Hanham & Philp Contractors Ltd (2009) 9 NZELC 93,095; (2008) 6 NZLR 79 — Stumpmaster v WorkSafe New Zealand [2018] NZHC 2190 — Big Tuff Pallets Limited v Department of Labour (2009) 7 NZELR 322 — Oceana Gold (New Zealand) Limited v WorkSafe New Zealand [2019] NZHC 363 — WorkSafe New Zealand v Cropp Logging Ltd [2018] NZDC 2023 — WorkSafe New Zealand v General Distributors Ltd [2015] NZDC 18672 — WorkSafe New Zealand v Benchmark Homes [2016] NZDC 7093 — WorkSafe New Zealand v Grieve [2016] NZDC 9737 — WorkSafe New Zealand v Luke Martin Roofing [2018] NZDC 11547 — WorkSafe New Zealand v Department of Corrections [2016] NZDC 24865 — Agricentre South Ltd v WorkSafe New Zealand [2018] NZHC 2070 — Tawa v Police AP89-97 — WorkSafe New Zealand v Hughes Partners Limited [2015] NZDC 20545 — Mobile Refrigeration Specialists Ltd v Department of Labour HC Hamilton CRI-2009-419-94, 4 June 2010 — WorkSafe New Zealand v Dimac Contractors Ltd [2017] NZDC 26648 — WorkSafe New Zealand v Rangiora Carpets Ltd [2017] NZDC 22587 — Health and Safety at Work Act 2015, ss 22, 36, 48 & 151 — Sentencing Act 2002, 7 & 10. Two defendants appeared for sentence on one charge each of failing to ensure the health and safety of workers. The first defendant was a property development company that constructed homes using contract labour and the second defendant was contracted to provide carpenter services for a house that the first defendant was building. On the day of the incident, employees of the second defendant were engaged in erecting timber frames that would form the walls of the house. Hiab cranes are commonly used for this task, but the second defendant had not requested that the first defendant provide one, so the employees were lifting the frames manually. While they were doing so a frame fell onto one of the employees, leaving him seriously and permanently injured. Given the severity of the victim's injuries and the permanent impact on his life, the Court ordered reparations of $40,000, an ACC top-up of $10,228.48, and a reimbursement of petrol costs amounting to $1257.53. Of the total amount of $51,486.01, 40 per cent was to be paid by the first defendant and 60 per cent by the second, to reflect their different levels of culpability. In setting a fine, the Court found that a crane clearly should have been used to lift the frames, that to lift the frames manually was highly risky, that the defendants had significantly failed to meet industry standards, and that the accident would have been easy to avoid. For the first defendant, the start point for fine was $300,000 and $450,000 for the second defendant. The Court stated the second defendant was more culpable in that it was onsite, was making onsite decisions and did not request a crane. However, the first defendant should have played a more active role and vetted and monitored the second defendant's work. Both defendants earned discounts for cooperation with the investigation, prior good record, attending restorative justice, steps to rectify the work process and guilty pleas. The first defendant's total fine was $186,250 and the second defendant's was $286,875. Taking into account the financial positions of the defendants, the Court substituted a fine of $65,000 for the first defendant and $70,000 for the second. Each defendant was ordered to pay costs of $4000. Judgment Date: 9 August 2019.