The Health and Safety at Work Act 2015 has been in force since 1 April 2016, but it hasn’t been until recently that cases have worked their way through the courts. However, it is clear that much higher penalties are going to be the norm from now on.
One case is WorkSafe v Rangiora Carpets Limited  NZDC 22587. It involved an employee at work who fell from a mezzanine floor, which did not have a balustrade. She overbalanced and fell 2½ metres suffering many broken bones and a laceration to her hand.
The company was charged with “failing to comply with a duty that exposed a person to risk of death or serious injury”. The maximum fine for a company for such a failure is $1.5 million. This is the middle level of offence; the highest being “reckless conduct exposing a person to risk of death or serious injury” (maximum fine $3 million); and the lowest being “failing to comply with a duty” (maximum fine $500,000).
Without any guidance on where exactly to set the fine, the Judge worked out the following levels of culpability:
CULPABILITY BAND FINE
- Low $0 to $150,000
- Low/Medium $150,000 to $350,000
- Medium $350,000 to $600,000
- Medium/High $600,000 to $850,000
- High $850,000 to $1,100,000
- Extremely High $1,100,000 plus
The Judge said this conduct was on the cusp of the low/medium and medium bands, because it was easy to put in protection against falls from the mezzanine and any fall would obviously result in serious injury.
The starting point was set at $300,000 and ultimately after discounts for good conduct and a guilty plea the fine was set at $157,500. The Judge allowed this to be paid off over time.
Another case is WorkSafe v Budget Plastics  NZDC 17935. The employee was loading waste plastic into a machine when one part caught in the machine and his hand was dragged into it. He lost most of the fingers on one hand.
The company was charged with the same offence as Rangiora Carpets. The machine wasn’t properly guarded, didn’t have emergency stop controls or any proper procedures for operation. The Judge said the failures were moderate and a starting point for the fine would be between $400,000 and $600,000. If it were not for the company’s financial capacity, the fine would have been $275,000. As all the company could pay was $100,000 that is what it was fined.
These “culpability bands” have not yet been confirmed by the higher courts, but we suspect they are probably going to end up being the working model for fixing fines. That means substantial penalties for breaches of health and safety law can be expected.
Finally, at the time of this newsletter going to print, the District Court has sentenced a company director to 4½ months home detention for breaches of the old health and safety law. The sentence arises out of the death of a person who was welding at a waste oil storage facility and was killed in an enormous explosion. The breaches appear to be very serious, and that is likely why the director has been treated so severely. He was also fined $25,000 for breaching a prohibition on work on the site after the explosion. The company was fined $258,750 and ordered to pay reparation to the victim’s family of $110,000.