WorkSafe New Zealand v Ebert Construction Limited [2017] NZDC 29617

Published 14 September 2018

Breach of health and safety duty — Health and Safety in Employment Act 1992 — sentencing — Department of Labour v Hanham and Philp Contractors Ltd (2006) 6 NZELR 79. The defendant appeared for sentencing having been found guilty on charges under ss 18A & 51A of the Health and Safety in Employment Act; having supplied to another person a steel plate for use in a place of work, having agreed to install and arrange the plant, and failing to take all practicable steps to install the plate safely for it's intended use. The defendant company had been contracted to develop a blending room and cannery for another company; the victim was employed by a specialist cleaning company contracted to clean the facilities being constructed by the defendant. While completing the builder's clean when the victim lifted an exposed and unsecured steel plate covering a penetration in the floor, falling and landing on the concrete floor of the floor below. The approach to sentencing is addressed by the decision of Department of Labour v Hanham and Philp Contractors Ltd; in that it involves three steps. First, assessing the amount of reparation; second, fixing the amount of the fine; and third, making an overall assessment of the proportionality and appropriateness of the total imposition of reparation and fine. The court noted the defendant company's co-operation with WorkSafe, genuine remorse and remedial steps taken by the defendant company following the injury. Reparation paid by the defendant company was also taken into account. The total discount made available to the defendant company was 30 per cent. The court ordered that a payment of reparation be made. First, by way of an amount of financial loss of $25,000. Second, by way of an amount for emotional harm of $30,000. In addition a fine of $45,500 was imposed. Judgment Date: 15 December 2017