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WorkSafe New Zealand v Discoveries Educare Ltd [2019] NZDC 13056

Published 03 October 2019

Sentencing — application for court-ordered enforceable undertaking — WorkSafe prosecution — falling tree — PCBU — Health and Safety at Work Act 2015, ss 2, 3, 7, 8, 9, 22, 36, 48, 151, 152, 156 & 158 — Worksafe New Zealand v Niagara Sawmilling Co Ltd [2018] NZDC 3667 — Worksafe New Zealand v Stumpmaster Ltd [2018] NZDC 900 — Department of Labour v Hanham and Philp Contractors Limited (2008) 6 NZEKR 79 — Sentencing Act 2002. The first defendant applied for a court-ordered enforceable undertaking, per s 156 of the Health and Safety at Work Act (the Act), in relation to a workplace incident that resulted in injuries to five victims (four children and one adult staff member). WorkSafe opposed the application. The defendant had pleaded guilty to two charges laid under the Act; being a PCBU with a duty to ensure so far as reasonably practicable the health and safety of workers, while at work, and; being a PCBU with a duty to ensure so far as reasonably practicable the health and safety of other persons who are not put at risk as part of work. The defendant operated a child care service and leased the property from the second defendant. There was a tree in the back of the property that had died and a Health and Safety New Zealand site hazard assessment identified the large trees on the property as a risk and indicated a programmed tree maintenance schedule was required. No assessment was undertaken and was not on the first defendant's daily OSH checklist. On the day of the day of the incident, high winds caused the tree to collapse. There were at least 13 children and their supervisors outside. Four children were struck by the tree and one adult. Injuries to the children included a fractured skull, head injuries, broken bones, facial lacerations and other injuries requiring specialist care and surgeries. WorkSafe found that the first defendant had failed to monitor and manage the condition of the tree in the rear playground area. The first defendant sought the court-order enforceable undertaking on the grounds that: (a) It would satisfy the sentencing criteria and purposes of both the Act and the Sentencing Act; (b) The defendant’s culpability was low; (c) It is a proportionate response and the defendant was remorseful, had no prior convictions and previously had a good safety record. The Judge agreed with the interpretation of s 156 in the Niagara decision that there is no basis in the Act for a discrete application under s 156. Instead, it is a consideration as part of the sentencing process. The Judge did not believe that a court-ordered enforceable undertaking would satisfy the principles of deterrence and denunciation, or hold the first defendant accountable for breaching its duty. The Judge found that a conviction was warranted and met the purpose of the Act. The Judge, applying the Stumpmaster decision, considered the emotional harm reparations for each of the victims, totalling $46,190.30 (60 per cent of the total reparations, with 40 per cent being imposed on the second defendant). With respect to the fine, the Judge found the offending fell into the medium band and adopted a starting point of $430,000. Discounts were granted for reparations, remorse and a previously good safety record, totalling 35 per cent. A further 25 per cent was discounted for the guilty plea. The end sentence was $46,190.30 in reparations, $209,625.00 in fines, and costs of $2,109.00. Judgment Date: 23 August 2019.