WorkSafe New Zealand v Dong Xing Group Ltd [2018] NZDC 22114

Published 26 February 2020

Sentencing — failing to comply with workplace duty — exposing person to risk of death or serious injury — scaffold — risk of electrocution — Department of Labour v Hanham & Philp Contractors Ltd (2009) 9 NZELC 93,095 — Stumpmaster v Worksafe New Zealand [2018] NZHC 2020 — Jones v Worksafe New Zealand [2015] NZHC 781 — Tasman Tanning Company Ltd v Worksafe New Zealand [2018] NZHC 2020 — Niagara Sawmilling Co Ltd v Worksafe New Zealand [2018] NZHC 2020 — Department of Labour v Eziform Roofing Products Ltd [2013] NZHC 1526, (2013) 11 NZELR 1 — WorkSafe New Zealand v Dimac Contractors Ltd [2017] NZDC 26648, [2018] DCR 447 — Hessell v R [2010] NZSC 135, [2011] 1 NZLR 607 — Mobile Refrigeration Specialists Ltd v Department of Labour (2010) 7 NZELR 243 — WorkSafe New Zealand v Rangiora Carpets Ltd [2018] DCR 276 — Health and Safety at Work Act 2015, ss 48, 151, 152 & 158 — Sentencing Act 2002, ss 7-10. The defendant appeared for sentencing on a charge of failing to comply with a workplace duty, thereby exposing persons to the risk of death or serious injury. The defendant was a company that supplied and installed scaffolding for construction projects. The charge arose from an incident where a scaffold installed by the defendant was observed to pose a significant risk to those using it. The scaffold was close to a live powerline, placing its users at risk of electrocution or electric shock; had no means of protecting its users from falling; and was badly corroded and improperly erected, meaning that it was at risk of collapse. No reparations were required as no actual harm to persons or property had resulted. In assessing the amount of fine, the Court considered that the defendant had significantly departed from industry standards and that the hazards arising from the offending were obvious. It was only a matter of luck that no serious injuries or fatalities occurred, especially given that the defendants had committed three separate and serious failings. The defendant could easily have minimised the risks. The Court found that the defendant's culpability fell at the top end of medium, and set a start point for fine of $580,000. The Court then uplifted this amount to reflect that the defendant had previously received an infringement notice and multiple prohibition and improvement notices. In mitigation the defendant had cooperated with the investigation, had engaged an independent contractor to help it to meet industry standards, had contributed to a community seminar, and had pleaded guilty. These factors reduced the fine to $388,237. Given the financial position of the defendant, the Court substituted a fine of $180,000, plus costs of $2333.40. The Court also made a special order requiring the defendant's employees to undertake training. Judgment Date: 17 October 2018.