WorkSafe New Zealand v Davis Tree Service Ltd [2019] NZDC 8584

Published 13 June 2019

Sentencing — WorkSafe prosecution — Health and Safety at Work Act 2015 ss 36, 40, 48, 152 & 158 — Sentencing Act 2002, s 32 — Stumpmaster v WorkSafe New Zealand [2018] NZHC 2020 — WorkSafe New Zealand v H H H Company Limited [2018] NZDC 22138 — Lindsay White Painters and Decorators Limited [2017] NZDC 28091. The defendants, a firewood company ("the first defendant") and an engineering firm ("the second defendant"), faced sentencing under the Health and Safety at Work Act 2015 ("the Act"). The second defendant faced one charge under ss 40(1)(a), 40(2)(a) and 48(2)(c), for their failure to comply with their safety obligations as the manufacturer of a log splitter. The first defendant faced one charge under ss 36(1)(a) and 48(1)(c). The second defendant manufactured the log splitter for the first defendant. The log splitter lacked an interlocking device to stop the machine if the guard was open, and came without an instruction manual. Further, no full report or safety audit had been undertaken. Upon receiving the log splitter, the first defendant modified it by removing the guard to make it easier to prevent jamming. On the day of the accident, an employee of the first defendant (who had been working at the company for a couple of weeks) was operating the machine unsupervised when a log fell into the cradle. The employee put his hand into the unguarded opening and attempted to remove the log manually; his hand got stuck and the blade amputated four fingers below the knuckle. Three of the victim's fingers were reattached (the index finger was not) but his hand lacks power and range of motion. The Judge set emotional harm reparations at $35,000, to be paid by the first defendant only, as the removal of the guard was ultimately the reason for the accident. There was no need for financial or economic reparations in this case. The Judge then turned to the respective fines for each of the defendants. The Judge adopted a starting point of $700,000 for the first defendant, but granted a $150,000 discount for remorse, full co-operation, lack of previous convictions, the overhaul of its workplace safety policies, and having to buy a new machine. The Judge also granted a 25 percent discount for an early guilty plea bringing the fine to $412,000. The Judge adopted a starting point of $500,000 for the second defendant, granting a discount of 15 percent for remorse, co-operation and no prior convictions. A further 25 percent discount was granted for an early guilty plea, bringing the fine to $319,000. The Judge then assessed the overall financial capacity of the defendants and made reductions and payment plans in accordance with the evidence provided. The end sentence was $35,000 in reparations to be paid by the first defendant, as well as a $75,000 fine and costs to WorkSafe of $3,400 (plus $130 Court costs) and a fine of $60,000 against the second defendant with WorkSafe costs of $2,300 (plus $130 Court costs). Judgment Date: 8 May 2019.