Director of Civil Aviation v Sarginson [2019] NZDC 24655

Published 27 July 2020

Sentencing — reparation order — consequential loss — statutory shortfall approach — statutory entitlement — pecuniary benefit — social contract — Accident Compensation Act 2001, sch 1 — Deaths by Accidents Compensation Act 1952, s 7(2) — Oceana Gold (New Zealand) Limited v WorkSafe New Zealand [2019] NZHC 365 — WorkSafe New Zealand v Crafar Crouch Construction (Picton) [2019] NZDC 8209 — Kapa v R [2013] 2 NZLR 1 (SC) — Agricentre South Limited v Worksafe New Zealand [2018] NZHC 2070 — Davies v Police [2009] NZSC 47, [2009] 3 NZLR 189 — R v Donaldson CA 227/06, 2 October 2006 — Stumpmaster v WorkSafe [2018] NZHC 2020 — WorkSafe v Benchmark Homes Canterbury and Bowness Built Ltd [2016] NZDC 7093. This was a deferred sentencing decision relating to consequential losses. The defendant had been convicted of reckless conduct in respect of duty causing death. The defence and the prosecution both made submissions on what they considered to be an appropriate monetary figure. Both parties relied on the case of "Oceana Gold" which dealt with the issue of calculating consequential loss and adopted a statutory shortfall approach. The parties in this case disagreed as to how to calculate the shortfall. Under the Accident Compensation Act 2001 (ACA) the victim was entitled to receive 60 per cent of a deceased's entitlement—being 80 per cent of the deceased's pre-accident income—and the son was entitled to receive 20 per cent. The statutory shortfall was stated as being the shortfall between the pecuniary benefit that the victim would have received based on the pre-accident income and the victim's entitlement under the ACA for the period of entitlement, interpreting the "pecuniary benefit" to mean the "ACA entitlements the deceased would have been entitled to had they survived but been incapacitated and unable to work indefinitely." The prosecution position was that the figure was the difference between the deceased’s pre-accident income and the ACA entitlements of the victim and her son. The Judge considered that if the prosecution's submissions as to this amount were followed, this would put the victim (and her son) in a better position than they would have been in had the deceased survived but been incapacitated. This would be contrary to the "fair rather than full" principle discussed in "Davies" and this submission was therefore rejected by the Judge. The Judge accepted the defence position of the statutory shortfall, being the difference between the victim’s and her son’s ACA entitlements and their pecuniary benefit against the deceased’s pre-accident income. A preliminary consequential loss figure of $175,642.30 was arrived at. Taking into account the defendant's financial position and ability to pay, the final figure was reduced to $123,000. This was in addition to the fine, reparations, and costs orders made on 30 October. Judgment Date: 20 December 2019.