Worksafe New Zealand v Wai Shing Ltd [2017] NZDC 10333

Published 26 September 2017

Sentencing — workplace injury — ACC payments — definition of victim — consequential loss — emotional harm reparation — Health & Safety Employment Act 1992 — Sentencing Act 2002 — Department of Labour v Hanham and Philp Contractors Limited. The defendant pleaded guilty to three charges brought under the Health & Safety Employment Act being that: 1. The defendant failed to take all practical steps to ensure the safety of its employee while at work; 2. The defendant failed to notify Worksafe of the occurrence as soon as possible after the injury was sustained; 3. The defendant interfered with articles that were related to the serious harm caused. The victim was struck in the neck by machinery owned by the defendant company causing him significant injuries and impairment. The court was asked to determine reparation. The court noted the lack of case law on emotional harm reparation and discussed the changes in legislation that discussed the award of emotional harm reparation where a victim is covered by ACC. In setting the emotional harm reparation figure, the court took into account the degree of harm, the safety records of the defendants, the early guilty plea and cooperation and found that the award of reparation provided for by the Sentencing Act will be $226,300.00. As the reparation figure is significant, in terms of the sentencing approach mandated by Hanham & Philip the fine was reduced to $50,000.00 with a portion to be met by the company and a portion to be met by the second defendant. Judgment Date: 22 May 2017