Health and Safety Update – August 2018

The High Court has released its judgment in an appeal on three sentencing decisions under the Health and Safety at Work Act 2015 (HSWA). The decision brings welcome clarity to the sentencing process, in light of the differing approaches that have been adopted in the District Court.

The High Court has confirmed the previous approach of using four sentencing bands based on the culpability of the offending. Those bands set the starting point for determining the fine, before mitigating and aggravating factors are applied to set the fine. The District Courts had taken different approaches to the number of bands that should be used, but the High Court confirmed that four should be used, as was the case under the Health and Safety in Employment Act 1992 (HSEA). The bands were set as follows:

The Court concluded that the increase in penalties was intended to cause substantial uplifts in fine levels across all categories of offending, not just the most serious offences as the appellants had argued. The bands were considered to reflect that purpose, and the increase in each band very nearly matches the six-fold increase in the maximum sentence introduced by the HSWA.

The cases

Three District Court decisions were under appeal:

1. In WorkSafe v Tasman Tanning Company Ltd, an employee suffered a concussion and experienced symptoms for five weeks after he was overcome by hydrogen sulphide gas released during "one-off" activity involving communication errors. This was considered to fall at the high end of the medium band.
2. In WorkSafe v Niagara Sawmilling Company Ltd, a worker had two fingers partially amputated when they were caught in machinery that was not properly guarded in what was regarded as a "fundamental" breach. This offence was considered be of medium culpability.
3. In WorkSafe v Stumpmaster Ltd, a palm tree felled by an employee fell on and seriously injured a woman who was walking past the property. There had been inadequate measures to exclude passers-by. This too was considered a medium culpability case.    

The Court thought that all had been appropriately classified in terms of culpability. However, adjustments to the starting point were made in two cases:

While the guidance on sentencing approach is valuable, arguably the most significant aspect of the judgment is the Court's indication that mitigating factors should be reconsidered. Discounts for mitigating factors such as taking remedial steps, paying reparations, and a prior good record commonly amount to a 30% discount, and the Court suggested that a discount at that level should only be expected where all the relevant factors are present to a "moderate degree", or one or more of them is present to a "high degree".

The Court considered that all of the cases before it had allowed discounts that were too generous. Consequently, although Tasman Tanning succeeded in having the starting point of its fine reduced by $150,000, its final fine was only reduced by $17,000.