WorkSafe New Zealand v Guru NZ Ltd [2020] NZDC 2955

Published 27 July 2020

Sentencing — failing to ensure health and safety of workers — death — hydraulic excavator — grapple — log exporter — risk assessment — Safe System of Work — WorkSafe New Zealand v Department of Corrections [2016] NZDC 24865 — Stumpmaster v WorkSafe New Zealand [2018] NZHC 2190 — WorkSafe New Zealand v Toll Networks (NZ) Ltd [2018] NZDC 11132 — WorkSafe New Zealand v Coda Operations LP Ltd and Hammer NZ Ltd, DC Nelson, CRI 2010-042-001094, 24 September 2010 — WorkSafe New Zealand v Hydrotech Ltd [2017] NZDC 11920 — Sentencing Act 2002 — Health and Safety at Work Act 2015, ss 3, 36, 48 & 151. The defendant company appeared for sentence on a charge of failing to ensure the health and safety of its workers. The defendant was a log exporter. It sourced logs from around Auckland and packed them into shipping containers for export. The incident that gave rise to the charge occurred when one of the defendant's employees (the victim) was closing one of the shipping containers with the help of an excavator machine. The excavator lost control and crushed the victim against the container, causing him fatal injuries. An investigation by WorkSafe showed that the defendant had not undertaken a risk assessment and had failed to develop a Safe System of Work for the practice of closing the containers with an excavator. It had also failed to provide a firm and level surface for loading the shipping containers, failed to ensure that its employees maintained a safe distance from the excavator, and failed to train its workers adequately. There were simple steps that the defendant could have taken to minimise the risks from the use of the excavator. The Court ordered emotional harm reparations of $110,000 to be apportioned among the victim's family members. Because of regular monthly payments by the defendant to the victim's family since the accident, the Court decided to order no consequential loss payments. Given the series of failures by the defendant that had led to the accident, the Court assessed its culpability as falling on the cusp of the medium and high bands as set out in the Stumpmaster decision. Accordingly, the start point for fine was $630,000. The defendant earned discounts for cooperation with the investigation, remorse, payment of reparations, and guilty plea, reducing the fine to $330,750. The Court also awarded costs of $1581.70. Judgment Date: 17 February 2020.