WorkSafe New Zealand v McRae [2018] NZDC 22096

Published 14 February 2020

Sentencing — failing to ensure health and safety of workers — dairy farming — farm equipment — tractor — rollover protection system — farm risk assessment — Person Conducting a Business or Undertaking — PCBU — Department of Labour v Hanham v Philp Contractors Limited (2009) 9 NZELC 93, 095; (2008) 6 NZELR 79 — Stumpmaster v WorkSafe New Zealand [2018] NZHC 2190 — WorkSafe New Zealand v Stevens and Stevens Limited [2018] NZDC 19098 — WorkSafe New Zealand v Oceana Gold (New Zealand) [2018] NZDC 5274 — WorkSafe New Zealand v Dimac Contractors Limited [2017] NZDC 26648, [2018] DCR 447 — WorkSafe New Zealand v Tasman Tanning Company Limited [2017] NZDC 24398 — Health and Safety at Work Act 2015, ss 22, 48, 151, 152 & 158 — Sentencing Act 2002, ss 7, 8, 9 & 10. The defendant appeared for sentencing on a charge of failing to ensure the health and safety of his workers, and thereby exposing them to the risk of death or serious injury. The defendant was a farm manager, and the incident in question occurred when the victim was trapped and killed beneath an overturned tractor. It was not known why the tractor overturned, but a WorkSafe investigation had shown that the tractor's rollover protection system (ROPS) was badly corroded and had collapsed completely in the accident, giving the victim no chance of surviving. In assessing reparations, the Court observed the major emotional and financial impacts on the victim's widow and son, and commented that it is impossible to put a monetary value on the loss of a life. The Court set an emotional harm payment of $130,000, which included a sum of $20,000 to recognise that the victim's son had witnessed the fatal accident, and also added an ACC top-up of $43,974.24 plus funeral costs of $4090.43. In setting a fine, the Court considered that the defendant had made five acts or omissions that led to the incident, including failing to properly assess the risks of working on the farm, failing to properly maintain the tractor's ROPS, and failing to put a health and safety programme and documentation in place. In particular failing to maintain the ROPS gave rise to an obvious and serious risk. The Court found that the offending fell within the upper end of the medium band and set a start point for fine of $115,000. With discounts for assistance to the victim's family, cooperation with the investigation, willingness to attend restorative justice, impact on the defendant (he had sold the farm) and guilty plea, the final fine was $70,000. The Court also ordered costs of $10,851. Judgment Date: 17 October 2018.