Worksafe New Zealand v Toll Networks (NZ) Ltd [2018] NZDC 11132

Published 21 August 2018

Expose an individual to risk — sentencing — Health and Safety at Work Act 2015, ss 36(1)(a), 48(1), 2(c) — WorkSafe New Zealand v Department of Corrections [2016] NZDC 24865 [2017] DCR 368. The defendant who operates a large freight business across New Zealand, with a large number of employees appeared for sentencing having pleaded guilty to offence under the Health and Safety at Work Act. Preceding events resulting in the death of an employee that occurred at the Auckland metro site, 38 pallets of oats were loaded by forklift onto a rail wagon at the Dunedin depot bound for Auckland. This type of wagon features curtains which slide along a track at the top edge and are secured by curtain buckles at the bottom edge. The roof of the wagons are supported by 2820 millimetre long roof poles. There was an issue with one of the poles; the operator simply lifted the pole and placed it horizontally on top of the pallets. When the wagon arrived in Auckland an employee attempted to unload the pallets but encountered problems due to the roof pole catching on the back stack of pallets, the roof pole, while still attached to the truck, eventually fell to the ground. When the employee reversed out of the wagon and as the load cleared the edge, the load shifted and the back stack of pallets tipped off the fork hoist tines striking the deceased as he was holding up the roof pole, resulting in his death. The court, tasked with ordering emotional harm reparation stated that a sum of $110,000 was to be paid. In terms of ordering that a fine be paid the court stated that the defendant failed to take reasonably practicable actions to avoid this fatality: failing to communicate an adequate safe system of work; not having temporary barriers; not enforcing compliance and failing to manage interaction between forklifts and pedestrians. Culpability was found to be in the high category and from a starting point of $900,000 deductions were applied for an early guilty plea, co-operation with the WorkSafe investigation, reparation and a good prior safety record. An order for ancillary legal costs in relation to the cost to WorkSafe of external counsel was made. The defendant was ordered to pay reparation of $118,020.10 plus a fine of $506,300. Judgment Date: 25 May 2018