Skip to Content, Skip to Navigation
Advertisement

Safeguard OSH Solutions - Thomson Reuters

Safeguard OSH Solutions - Thomson Reuters



Safeguard Magazine

The law: Sign of things to come?

A New Zealand court has handed down the first sentence of home detention for a health and safety offence. GRANT NICHOLSON and OLIVIA MOLLER examine what it portends.

In a New Zealand first, on 12 February 2015 the District Court at Hastings imposed a sentence of home detention (imprisonment at home) against a company director for breaches of the Health and Safety in Employment Act.

The sentence reflects the Court’s growing intolerance of health and safety offending, and the Government’s strategy to impose harsher penalties on offenders to punish wrongdoing and incentivise safer workplace behaviour. It is arguably a precursor to the sentences we will see once the current health and safety reforms (and a new Health and Safety at Work Act) come into force later this year.

The case arose after a house-moving truck operated by Britton Housemovers Limited clipped a live power line while moving a house along a country road in Hawke’s Bay. The power line fell onto the house being moved. The company’s director, Mr Britton, and his workers used a wooden stick to pull the power line off the house but, incredibly, decided to leave the power line (which remained live) in a roadside ditch and leave the scene temporarily without doing anything else.

ELECTROCUTION

A farmer was moving stock down the road while this happened, and a number of sheep were electrocuted when they came into contact with the power line. Two sheep dogs followed the sheep and were electrocuted too. The farmer narrowly avoided electrocution when he attempted to recover the dead sheep and sheep dogs, as luckily his shepherd warned him to move back. There was also a school bus travelling in the vicinity to pick up children, but none of them were hurt.

The farmer and the shepherd followed the house-moving truck and, eventually, Mr Britton sent one of his team back to the scene to put cones around the danger area. The worker did not wear safety equipment while doing this, and Britton Housemovers Limited did not notify WorkSafe New Zealand or the electricity authorities of what had occurred. They only learned of the incident after a call from the farmer.

This appears to be a textbook case of what not to do when something goes wrong. Staggeringly, it was not the first time Britton Housemovers Limited had been involved in a similar situation.

Investigations followed, and despite no one (well, no people) being hurt, charges were laid against Britton Housemovers Limited and Mr Britton under the HSE Act and the Electricity Act 1992.

After the Court gave a pre-trial sentencing indication, guilty pleas were entered by both defendants. Britton Housemovers Limited was fined $60,000 and Mr Britton was sentenced to four months home detention. This appears to be the first time an individual – whether a company director, employee, or other person – has received a custodial sentence for health and safety offending in New Zealand.

WorkSafe New Zealand has sent a clear message that reckless behaviour by individuals or companies will not be tolerated. And after more than twenty years as an available sentence, the Court is now willing to impose a custodial sentence for health and safety offending, when necessary as a deterrent to others.

OTHER CUSTODIAL CASES

The case should perhaps not come as a surprise, as it is consistent with the types of sentences that have been handed down in New Zealand for health and safety breaches under other laws, and with the sentences being imposed for health and safety offending overseas.

On 25 June 2014 a New Zealand landlord was sentenced to six months home detention and ordered to pay reparations of $5000 when his tenant was killed in a gas explosion that resulted from an improperly installed gas cooker that the landlord had fitted personally (and without the required qualifications). The landlord was convicted under the Gas Act for failing to take all practicable steps to ensure that the gas cooker was installed safely.

In December 2014, a case in the United Kingdom saw the co-owner of a construction company and a health and safety advisor both imprisoned following the death of an employee undertaking work on a basement excavation. The co-owner was the site manager and was aware of the dangerous conditions at the site but failed to take any steps to ensure safety. The health and safety advisor was engaged to provide professional health and safety advice and complete monthly inspections of the site. He was also responsible for drafting a method of work statement for the job, and was familiar with the risks present at the site. The co-owner was convicted of manslaughter and sentenced to three years and three months in prison. The health and safety advisor was convicted for exposing a person to a health and safety risk and sentenced to nine months in prison.

A GLIMPSE INTO THE FUTURE?

The Housemovers case is a timely reminder of how New Zealand’s workplace health and safety requirements, and enforcement outcomes, are changing. When the Health and Safety at Work Act becomes law in a few months, businesses and workers will face new and onerous obligations for health and safety, and much stiffer penalties if they don’t act. The maximum term of potential imprisonment will rise from two years to five, and maximum fines will increase six-fold to $1.5 million in most cases.

It is likely we will see significantly higher fines and more custodial sentences being imposed by the Court once these reforms come into effect.

For now, the message to employers is clear. It’s time to get serious about health and safety, and to get your business in order. The Health and Safety at Work Act is going to make more people within workplaces responsible for health and safety, and will result in significant penalties when duty holders fail to measure up. There will be no “get out of jail free” card, and WorkSafe New Zealand has signalled its intention to take a harder line.

Now is a good time for you to assess how much more your business will need to do to meet these new requirements.

Grant Nicholson is a partner and Olivia Moller a solicitor in Kensington Swan’s specialist health and safety legal team.

comments powered by Disqus

From Safeguard Magazine

Table of Contents