WorkSafe New Zealand v Otago Polytechnic [2020] NZDC 11114

Published 13 July 2020

Sentencing — failure to ensure health and safety of other persons — PCBU — Court-Ordered Enforceable Undertaking — Health and Safety at Work Act 2015, ss 3, 36, 48, 132, 150, 151 & 152-158 — Education Act 1989 — Sentencing Act 2002, ss 7-10 — Crown Organisations (Criminal Liability) Act 2002 — Stumpmaster v WorkSafe New Zealand [2018] NZHC 2020 — Big Tuff Pallets Ltd v Department of Labour HC Auckland CRI 2008-404-322, 5 February 2009 — WorkSafe New Zealand v Wimpex Ltd [2019] NZDC 3932 — WorkSafe New Zealand v Eurocell Wood Products Ltd [2018] NZDC 21548 — Department of Labour v Hanham and Philp Contractors Ltd (2008) 6 NCELR 79 — WorkSafe New Zealand v Cave Bakery Ltd [2018] NZDC 5427 — Wimpex v Worksafe New Zealand [2019] NZHC 1978 — Graham v R [2011] NZCA 131 — R v Taueki [2005] 3 NZLR 372 (CA) — WorkSafe v Nicks Components and Accessories Ltd [2018] NZDC 26212 — WorkSafe New Zealand v Niagara Sawmilling Co Ltd [2019] NZDC 9720 — WorkSafe New Zealand v Discoveries Educare Ltd and Heng Tong Investments Ltd [2019] NZDC 13056. The defendant educational institute appeared for sentence having pleaded guilty to one charge of failing in its duty to ensure the health and safety of a person, pursuant to ss 36 and 48 of the Health and Safety at Work Act (HSWA). The victim was a student at the institute and had been operating a draw saw as part of his carpentry course. The draw saw did not have a guard on it. His hand slipped and made contact with the blade, partially amputating one of his fingers. The process for assessing the appropriate sentence under the HSWA is well-established: fix the amount of reparation and fine, consider whether to make any orders under ss 152-158 of the HSWA, and assess the overall proportionality and appropriateness of the sentence. Based on comparable cases the reparation was set at $15,000. In fixing the fine amount, the Court had to consider the defendant's culpability. Despite having a 3-yearly health and safety assessment, it had not identified that the saw did not comply with relevant industry standards. The Court assessed the defendant as being in the lower medium culpability band as outlined in the Stumpmaster case given that it was a one-off incident, and set a starting point of $450,000. Discounts of 5 per cent each were given for reparation already paid, co-operation, remedial steps taken and good character. The full 25 per cent discount for a guilty plea was also given, bringing the fine amount to one of $240,000. The Judge then considered orders under ss 152-158 of the HSWA. A costs order was made against the defendant. The Court also heard submissions on a Court Ordered Enforceable Undertaking (COEU) sought by the defendant pursuant to s 156 of the HSWA. As part of this undertaking, the defendant offered to design, deliver and offer a training programme on Health and Safety requirements to the construction industry free of charge, which would cost the defendant $275,000. Counsel for the prosecution opposed the offer, submitting that there were no exceptional circumstances present upon which to treat this sentencing as any different from previous similar cases where no COEU order had been granted, and that it would not satisfy sentencing principles. The Judge considered that the defendant, being a tertiary education institute, involved in training those in the construction industry within the Otago region, was in a prime position to design a tailored training programme. The Judge also noted the defendant's submission that $3 billion of construction work was being planned within Dunedin. The proposed training programme would ensure that those involved in the planned construction would be well-versed on New Zealand Health and Safety regulations. The Judge determined it was appropriate in the circumstances to make an order for a COEU, noting that this is the first time a court has made an order under s 156. The proposal was outlined and an order made accordingly, to be reviewed by a judge every 6 months. Judgment Date: 18 June 2020.