WorkSafe New Zealand v Department of Corrections [2016] NZDC 18502

Published 26 September 2016

Duty of employer — practicable steps — Health and Safety in Employment Act 1992, ss 2A, 15 and 50 — WorkSafe New Zealand v Waimea Sawmillers Ltd [2015] NZDC 21082 — Crown Organisations (Criminal Liability) Act 2002, s 6. The Department of Corrections had failed to “take all practicable steps to ensure that no action or inaction of any employee while at work harms any other person” as stated in s 15. The harm which arose was the death of a man carrying out a community work sentence, following being struck and pinned by a felled tree. The supervisor at the time had gone home unwell. It was reasonably foreseeable that harm would arise from the use of power tools, and the supervisor’s departure under illness was not a break in the chain of causation which the defendant could rely on. Accordingly, the defendant was convicted of an offence under s 50. Section 50 is a strict liability offence, meaning that intention was not relevant to liability. A number of aspects of the charge were clarified by the Chief Judge in arriving at the decision. These included whether WorkSafe had to prove specific actions/inactions or whether a “macro” approach to failure of duty could be relied upon (“Waimea”). The definition of “at work” under s 2 was also clarified, as was the correct approach to causation under the Act. Under s 6(1)(b) of the CO(CL) Act, the defendant could be ordered to pay reparation, compensation or costs, but could not be sentenced to pay a fine. This limitation, and the degree and nature of Corrections’ contribution to the actual harm that occurred would be relevant to sentencing. Reparation would be determined with reference to loss, harm or damage resulting from the offending. Judgment Date: 22 September 2016.