WorkSafe New Zealand v Gold Hawk Cooperation Ltd [2019] NZDC 17745

Published 23 July 2021

Sentencing — failing to ensure health and safety of workers — scaffolding — fallen employee — Stumpmaster v Worksafe New Zealand [2018] NZHC 2020 — Department of Labour v Hanham and Philp Contractors Limited (Hanham) (2006) 6 NZELR 79 — Department of Labour v Eziform Roofing Products Ltd [2013] NZHC 1526 — Transrail v Department of Labour [1997] ERNZ 316 — Health and Safety Inspector v Iscaff District Court, Porirua, CRN-120-915-0073 — Best Practice Guidelines for Scaffolding in New Zealand (SARNZ/DOL 2009) — Health and Safety at Work Act 2015, ss 36, 48 & 151 — Sentencing Act 2002, s 9(2)(c). The defendant appeared for sentencing on a charge of failing to ensure the health and safety of workers. The defendant company designed and built residential homes. At the time of the incident that gave rise to the charges, it was building four three-level units. The defendant had hired another company to manage the project, and contracted several other companies to help in the construction. The accident occurred when an employee of one of the other companies, who was painting the units, fell off a faulty scaffold and suffered a range of injuries including a broken arm. The defendant was at fault in failing to ensure adequate scaffold inspections, failing to block access to the faulty scaffold where the accident occurred, failing to manage and monitor the performance of workers at the site, and failing to define and communicate to work site supervisors of the scope of their statutory obligations. The defendant had relied on the scaffold company to inspect the scaffold, and had failed to monitor the scaffold company's performance and inspections. The Court assessed the defendant's culpability as being at the higher end of the low band as set out in the Stumpmaster decision, reasoning that the defendant had overall responsibility for the project but did not put up the scaffolding itself. The start point for fine was $220,000. The Court noted the inconsistency of High Court authorities on whether victim conduct can be counted as a mitigating factor, but decided to apply a discount for the victim's contribution to the accident (noticing that the scaffold was unsafe but not notifying the scaffold company). Further discounts for remorse, cooperation with the investigation, lack of previous convictions and guilty plea reduced the final fine to $110,000. The Court also ordered reparations to the victim of $11,840 and costs of $1562.80. Judgment Date: 28 June 2019.