WorkSafe New Zealand v Bulldog Haulage Ltd [2019] NZDC 12202

Published 23 October 2019

Sentencing - failure to consult, co-operate with, and co-ordinate with other PCBUs - duty- multiple subcontractors operating at distribution centre - Stumpmaster v WorkSafe New Zealand [2018] 3 NZLR 881 - Stumpmaster v WorkSafe New Zealand [2018] NZHC 2020 - WorkSafe New Zealand v Storage and Distribution Specialists Ltd [2017] NZDC 27252 - Health and Safety at Work Act 2015, ss 34 & 48. The defendant company appeared for sentence on a charge of failing to develop a safe system of work with other companies that had a duty towards its employees, an offence under s 34 of the Health and Safety at Work Act. The defendant was a trucking company that was operating out of a distribution centre where several other companies were also operating. On the day of the incident, the victim was loading a truck with the help of two forklift drivers who were employed by one of the other companies operating from the site. As the result of a miscommunication, the victim was hit by one of the forklifts and suffered serious leg injuries. A WorkSafe investigation found the defendant had not consulted with the other companies to develop a safe system for loading trucks. The defendant was aware of safety issues and had not raised these with the other companies operating at the site, but it had raised concerns about the forklift driver involved in the accident. Following the sentencing approach set out in Stumpmaster, the Court was satisfied $40,000 reparation paid to the victim was sufficient. Stumpmaster had set no bands of culpability for the defendants charged under s 34 of the Health and Safety at Work Act. The Court adjusted the bands set in Stumpmaster to take account of the maximum penalty under s 34 and found that the defendant's culpability was in the low band level. In doing so the Court accepted the defendant's argument that while it should have consulted more extensively about safety issues with the other operators on the site, its failure to do so arose from its fears that taking such an action could lead to the loss of the defendant's supply contract and threaten its survival. The Court set the start point for fine at $10,000, and reduced it to $6000 for mitigating factors (remorse, payment of reparations, good prior safety record, willingness to take remedial action, and guilty plea). The Court also ordered costs of $500 to WorkSafe. Judgment Date: 9 May 2019.