WorkSafe New Zealand v Stevens and Stevens Ltd [2018] NZDC 19098

Published 30 October 2018

Sentencing — Person Conducting a Business or Undertaking (PCBU) — exposure of individual to risk of harm — failure to identify potential hazards — orchard work — kiwifruit industry — systems for control and management of hazards and risks — Health and Safety at Work Act 2015, ss 36 & 48. The defendant company appeared for sentencing having pleaded guilty to a single charge under the Health and Safety at Work Act; the charge relating to a quad bike accident that had resulted in the death of an employee. The deceased had been employed by the defendant company as a kiwifruit sampler and was working alone at an orchard contracted to grow kiwifruit for Zespri when the accident occurred. The particulars of the charge included that the defendant company had failed to establish a safe work system which identified for their workers potential hazards and that there had been a failure to design and implement a system for control and management of hazards associated with workers who worked alone. Zespri had designed and implemented systems that maintained strict sampler independence from growers (orchardists), the result of which was that there was no meaningful communication of hazard identification between orchardists and samplers, with orchardists having to rely completely on the defendant company to train samplers to a high standard of quad bike operation. Although the employee was employed by the defendant company to carry out sampling on the orchardist's property, the defendant company and the employees had no direct relationship with individual orchardists. Orchardists would make a request for sampling to a pack house and provide the pack house with orchard maps that identified the kiwifruit blocks to be sampled, with any known hazards; the pack house would then forward the maps to the defendant company who could accept or reject the map. When a map was rejected, the pack house would inform the orchardist and the sampling would not take place until a complying map was re-filed with the pack house. The map provided by the orchardist on this occasion had not contained any information about hazards found outside of the expected and permitted area of operation of the quad bikes used by samplers to complete their work. The court noted that general knowledge within the industry was that samplers were trained in the use of quad bikes and stuck to formed tracks within the boundaries of the specific kiwifruit blocks. The deceased had strayed outside these parameters, possibly misidentifying an open area as a track and misjudging the extent of the risk posed by the hazardous conditions. The court found that responsibility for accidents to samplers in areas outside the usual areas of operation lay with both Zespri and the defendant company. Zespri, because they set up the system whereby samplers could roam free and uncontrolled upon orchardist's lands, and the defendant company as it had accepted the Zespri system, including acceptance of hazard maps that did not exhaustively delineate possible hazards. The defendant company should have required a better map. In determining the quantum for reparation, the court set a starting point of $100,000 and deducted sums payable by Zespri and paid by the defendant company, leaving further reparation of $60,222 to be paid. In regard to the fine, the court noted that the very unusual nature of the case meant that there was no existing precedent and there had been no risk ignored, but rather mitigating steps taken in regard to a known risk were not as comprehensive as they should have been. Three additional practical steps that should have been taken were outlined by the court. In regard to prevailing industry standards, there had been no departure from usual industry standards, the court concluding that the industry as a whole had insufficiently high standards. Culpability was assessed at the top end of the medium band. The complex contractual matrix was noted as substantially contributing to the failure to ensure worker safety so that although the defendant company was responsible for the safety of its workers, its culpability was diminished. Reducing the quantum by $100,0000 to account for Zespri's culpability, applying a reduction of $42,500 for mitigating factors of a good record, co-operation with the investigation, remedial action, restorative justice and remorse, deducting the sum of $75,000 to be paid in reparation, and applying a 20% discount for the guilty plea resulted in a total fine of $306,000. No adjustment was made for proportionality. Costs of $10,372 were directed to be paid to WorkSafe New Zealand. Judgment Date: 12 September 2018.