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Safeguard OSH Solutions - Thomson Reuters

Safeguard OSH Solutions - Thomson Reuters



OSH Tracker

Department of Labour v Cemac Construction Ltd (DC, 19/02/10)

OSH Tracker

Defendant:
Cemac Construction Ltd
Cemac Construction Ltd was fined $5000 and ordered to pay reparations of $20,000 on a s18 charge under the HSE Act, after the employee of a contractor at a construction site died after falling 3.5m from an unsupported section of mezzanine floor which snapped. Judge E.O.K. Blaikie said the fine was reduced given the financial circumstances of the defendant, and reparation had to take priority. The DoL said the company should have had identified the hazard, ensured visitors to the worksite knew who to report to, and put in perimeter protection (Hamilton DC, February 19). 
Industry:
Construction
Sub-Industry:
General Construction
Risk:
Fall from height
Harm:
Death
Penalty Amount:
$25000.00
Reparation Amount:
$20000.00
Appeared in Safeguard issue 122

Judgment Text

RESERVED JUDGEMENT — EOK BLAIKIE 
EOK Blaikie Judge
[1]
This is a prosecution under s 18(1)(a) and 50(1)(a) of the Health & Safety in Employment Act 1992. A maximum fine of $250,000 applies in relation to this charge. 
[2]
I have received and considered written submissions from both counsel and compliment them for the standard of the submissions and for their approach in this case. 
[3]
The information refers to a date of 19 November 2008, that being the date when an employee of a contractor at the construction site in Greenwood Street Hamilton, suffered a tragic accident when he fell, landing on his head, shoulders and neck. Mr Moffitt was transported to the Waikato Hospital by ambulance and kept on life support, but sadly did not recover from the injuries and was pronounced dead the following day. 
[4]
The file does not record a guilty plea in this matter, although I am assuming, given the notation for a referral to a restorative justice conference, that notation having been entered 9 July 2009 the first calling of this case, and the reports that had been received since that date, that a plea of guilty has been entered at the first available opportunity. 
[5]
The restorative justice conference occurred and all participants are to be congratulated and commended for the way in which the conference was conducted, the outcomes achieved and the record which has been presented to the Court. It will be obvious in this brief decision that I have taken into account the outcomes recorded from the restorative justice report. 
[6]
I have noted the personal anguish in this case, in that various individuals, including the deceased where known to each other prior to the accident. I have noted the remorse which has been expressed and the practical steps taken by the defendant which are factors I take into account when imposing the sentence. 
[7]
Of further significance is the accepted financial situation of the defendant and it is quite clear from the material placed on the file, this situation having been accepted by counsel for the informant, that the defendant company has limited or no financial resources which would make payment of the fine and or reparation possible within an immediate timeframe. 
[8]
I indicated the Court's appreciation for the manner in which counsel have conducted this case. In their closing submission they were able to present certain figures and percentages which appeared to be applicable. 
[9]
They and I have approached this matter in a manner consistent with the approach set out in the leading authority of (Department of Labour v Hanham and Philp Contractors Limited and Others) unreported 18 December 2008. 
[10]
I have given careful consideration to the reparation submissions and have regard to the financial and emotional harm factors and I conclude that the reparation to be ordered in this case should be $20,000. 
[11]
The position regarding the quantum and imposition of a fine is a more difficult task. I accept that the facts in this case come within the second of the three bands of culpability and that this is a case of medium culpability, attracting a fine of between $50,000 and $100,000. I propose to adopt a starting point of $100,000 and then apply the following discounts for the guilty plea, co-operation, remorse and other mitigating factors including the agreements reached at the restorative justice conference. 
[12]
The percentage discounts are: mitigating factors — 5%; reparation awarded as above — 15% and early guilty plea — 30%, making a total discount of 50%, reducing the fine to $50,000. 
[13]
The third step in the sentencing process involves assessing the impact of reparation and fine in combination and in this regard the financial circumstances of the defendant comes into very clear focus and it is noted that the defendant is not in a position to meet a significant fine and reparation. In my view reparation must take priority and I have reached the view that the ultimate sentence in this case is as follows: 
a)
Reparation fixed in the sum of $20,000 
b)
Fine fixed in the sum of $5,000 
[14]
The reparation and fine as imposed, to be paid within 12 months from today's date. 

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