News
Courts impose significant health and safety fines
No-one really likes a referee.
It is probably the most unenviable position in sport. The referee is the rule enforcer : a pedantic intervener whose role is probably viewed by fans as akin to that of a policeman.
The referee’s job is to enforce the law – and to hand out penalties for those who infringe it. And that role is not entirely unlike the role given to the Court in health and safety prosecutions.
If an accident occurs in a workplace (particularly if there are serious injuries as a consequence) the Department of Labour may bring a prosecution. That action can be brought against a number of different parties – each of whom may have some element of responsibility for ensuring safety in a particular workplace. The Court’s job is to assess the conduct of each of the respondents – and, ultimately to decide whether the prosecution can be made out – and, if so, the appropriate penalty to impose.
In the first ten years of the Health and Safety in Employment Act, the average fine given in health and safety prosecutions was in the vicinity of $6,000 (against a maximum, in most cases, of $50,000 (and $100,000 in certain circumstances)). The maximum figures increased, however, with the introduction of amendment legislation in 2003. The maximum level of fines has now increased to $250,000 (or to $500,000 in certain cases).
Two recent decisions of the District Court give some indication as to the level of fines which may now be expected – and as to the factors that the Court may take into account in determining the penalty to be imposed.
The first case is the decision of the Court in Department of Labour v Clutha Chain Mesh Products Limited (Unreported, District Court, Gore, 26 May 2004). The circumstances of this case were tragic: a farmer was crushed and killed after becoming entangled in a rotary platform. The machine’s manufacturers and installers were prosecuted for failing to take all practical steps to ensure that the machine was safe for its intended use – and that it was used in a safe manner.
The company entered a guilty plea in response to the charge. The directors and shareholders of the company gave evidence to the Court, and were judged as having displayed genuine remorse. The Court also took into account that the directors of the company had given assistance to the deceased’s family and to his farming operation. Further, the Court held that the company co operated with the Department of Labour in its investigation, that it previously had a blameless record, and that it had offered to participate in safety seminars as part of the remedial action taken following the incident.
In addition to all of these factors, the Court took account of the company’s financial position – and determined that it was not able to pay a fine anywhere near the maximum amount of $250,000. It also took account of evidence that had been brought on behalf of the deceased which established the appropriateness of an award of reparation under the Sentencing Act.
Taking all these different factors into account, the Court fined the company $35,000 under health and safety legislation and, further, ordered it to pay reparation to the deceased’s family of $50,000.
The Court was at pains to emphasise that it considered that there were “truly unusual features” about the case, and that its decision (particularly relating to the reparation figure) should not be taken as a precedent for future cases.
The circumstances in Department of Labour v Touchdown Productions Limited (Unreported, District Court, Warkworth, 11 May 2004) were also tragic. The defendant company was filming a reality TV show. One of the contestants in the show had succeeded in what was called a “minefield” challenge in which he (and three others) had been required to walk between two partially buried pipes while blindfolded. Unbeknown to the contestants, pyrotechnic devices had been buried in the ground and were exploded from time to time. The company had engaged a contractor to carry out the pyrotechnic work.
After the filming of the challenge (which went without incident) a decision was made to use up some of the unused pyrotechnic devices in one final shot (which was also to involve a helicopter). The successful contestant agreed to participate in this additional filming.
The contestants had earlier been provided with crash helmets, special goggles, pads and special fire retardant gels. Safety officers had been standing by throughout. For this additional filming, however, the safety officer was not present, and the contestant did not wear all of the protective equipment which had been available.
For reasons which were not completely clear, an explosive device was detonated, causing severe burns to the contestant.
The company was prosecuted by the Department of Labour because it had overall control of the filming. The pyrotechnic contractors were not, however, prosecuted as well.
The Court took account of a good deal of evidence about the contestant’s injuries and the extent of his suffering. In conclusion, however, it regarded its task as determining the culpability of the company – and the appropriateness of an award of reparation under the Sentencing Act.
The Court concluded that, overall, a fine of $80,000 would be appropriate on the facts of the case. It then indulged in the process of logical rationale whereby it took account of such things as the company’s guilty plea, its remorse and co operation with the Department of Labour. It also took account of the need to make an award of reparation.
Taking all of these different matters into account, the Court concluded that the company should pay a fine of $30,000 with a further amount of $35,000 to be paid to the contestant by way of reparation.
These two recent decisions illustrate an apparent willingness by the Court to increase fines for health and safety prosecutions above previous levels (in line with the increases allowed by amendment to health and safety legislation) – and also a willingness to make awards of reparation under the Sentencing Act. They also act as a helpful indication concerning the different matters that the Court will take into account in the course of decision-making in this area.
