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WorkSafe New Zealand v Portage Management Ltd [2020] NZDC 1545

Published 03 August 2022

Sentencing — failing to ensure health and safety of persons — exposing persons to risk or death from falls — deck collapse — improper maintenance — liquidation — insurance — whether insurance covers reparations — EXFC16 Ltd (in liq) v New Zealand Customs Service [2017] HZHC 577 — Department of Labour v Zion Wildlife Services Ltd D C Whangarei CRN09088501178 CRN090885011, 2 December 2011 — Stumpmaster v WorkSafe New Zealand [2018] NZHC 2190 — Big Tuff Pallets Ltd v Department of Labour HC Auckland CRI-2008-404-322, 5 February 2009 — Department of Labour v Hanham & Philp Contractors Ltd (2009) 9 NZELC 93,095; (2008) 6 NZELR 79 — WorkSafe New Zealand v Waipa Workingmens Club [2016] NZDC 3291 — WorkSafe New Zealand v Rickie Shore Building Limited [2016] NZDC 18215 — WorkSafe New Zealand v Rangiora Carpets Limited [2017] NZDC 22587 — Health and Safety at Work Act 2015, ss 37 & 48 — Companies Act 1993, ss 303(2) & 308. The defendant appeared for sentencing after being found guilty on charges of failing to ensure the health and safety of persons in its workplace, and thereby exposing persons to the risk of death or serious injury. The defendant ran a resort hotel where one night the handrail on the deck collapsed. As a result four people fell off the deck and were injured. The Court set emotional harm reparations of $35,000 to the first victim, $20,000 to the second and $5000 to the third, with the fourth victim having died since the accident. In setting a fine the Court considered that the deck had been obviously unsafe, would have been cheap and easy to fix, and had the potential to cause serious harm. The defendant's failure to fix or properly maintain the deck represented a major departure from industry standards. Therefore the Court set a start point for fine of $450,000, and applied a discount for previous good character. As the defendant had gone into liquidation, the Court did not impose the fine or order costs and observed that it expected the emotional harm reparations payments to be covered by the defendant's insurance company. Judgment Date: 28 January 2020.