A year and a half after the new Health and Safety at Work Act 2015 (HSWA) came into force on 4 April 2016, we have our first two decisions interpreting the new law.
WorkSafe New Zealand v Budget Plastics (New Zealand) Limited
In this case, a portion of a worker’s hand was amputated after it was caught in the auger of a plastic extrusion machine he was operating.
Among other things, the following were areas of concern for WorkSafe:
- The extrusion machine was insufficiently guarded because it was possible to reach the moving auger.
- The machine was not fitted with appropriately located emergency stop controls. The emergency stop was approximately two metres away.
- No adequate systems for identifying hazards were in place.
- There were no adequate safe operating procedures (SOPs) for the machine’s use.
- There were no adequate policies or processes in place for training workers in the safe use of the machine.
The Court placed significant reliance on the Australian/New Zealand standards for Safety of Machinery and noted WorkSafe has also published relevant factsheets and guidelines..
The Judge set the reparation at $37,500 for emotional harm, but did not comment on the consequences of the amputation to the victim, so that it is hard to glean the reasons for this level of reparation.
The Court set the fine at $100,000, noting the fine would have sat between $210,000 and $315,000. The Court declined to provide any detailed “sentencing guidelines”. In coming to this range the Judge commented on a number of factors that resulted in discounts including an early guilty plea, cooperation during the investigation, character and payment of reparation to the victim. It also took into account evidence that Budget Plastics could not afford a higher fine.
Under the old legislation a case of guarding would have likely resulted in a fine between $30,000-$40,000 so in this case, we are seeing a six fold increase of this amount. This case is being appealed by WorkSafe, and we hope that the appellate court may provide us further guidance as to sentencing guidelines and starting points with fines being imposed.
WorkSafe New Zealand v Philip Benjamin Burrows
This case unusually involved prosecution against an individual as a sole trader rather than a company, and the injured person was a child, not a worker.
Mr Burrows trained horses and on this occasion, his son and his 10 year old friend (the victim) went with him to the stables. Mr Burrows was driving around the track wetting it down. The truck was moving at walking pace or less and Mr Burrows saw the boys off the truck running in the water at times and then jumping back on the truck. On the second lap Mr Burrows felt a bump, immediately stopped and found the victim lying on the track on his side. The victim’s mid-section had been run over by the right rear wheels of the truck. The victim spent a month in hospital with his injuries including fractures to his traverse lumbar, sacral alar, pelvis and ribs. He also suffered from a collapsed lung, diaphragmatic hernia and a renal laceration.
Mr Burrows was prosecuted for failing to ensure that no children or any other person, rode or jumped on or off the water truck while it was in use. The Judge said “to allow the victim and your son to ride on the truck as they did and to jump on and off, effectively unsupervised, was fraught with obvious risk…You had full control of the situation. The risks were obvious… you have a high level of culpability”.
When discussing the fine and reparation the Judge took into account Mr Burrows’ ability to pay, including that his business had traded at a small loss the previous year, and his personal net worth was $12,000.
$25,000 reparation was ordered to be paid to the victim in $5,000 increments per year. The Judge did not issue a fine on top of this because he concluded there was no ability to pay, and he was required to apply the means to pay to reparation first.
Both cases involved arguments regarding the financial capacity of the business or individual to meet the fine. Given the large increase in the possible maximum fines, it is likely we will see this regularly raised for small to medium sized businesses.
For any health and safety law queries, please contact us.
Disclaimer: We remind you that while this article provides commentary on employment law and health and safety topics, it should not be used as a substitute for legal or professional advice for specific situations. Please seek legal advice from your lawyer for any questions specific to your workplace.