Skip to Content, Skip to Navigation
Advertisement

Safeguard OSH Solutions - Thomson Reuters

Safeguard OSH Solutions - Thomson Reuters



OSH Tracker

Christian Youth Camps v Department of Labour (HC, 11/12/00)

OSH Tracker

Defendant:
Christian Youth Camps
A fine described by the judge as "manifestly excessive" has been slashed on appeal. In August last year, Christian Youth Camps pleaded guilty to a s16(2) charge and was fined $30,000 after a 10-year-old boy on a school outing was injured when he struck a chain placed across the end of a 50m water slide to deter unauthorised visitors. On appeal in the High Court in Auckland on 11 December, Justice Morris slashed the sentence to $6500. During a school picnic, and before adult supervision arrived, a group of about 10 children ran to the top of the slide, where they turned on the water tap. One child slid all the way down the slide and struck the chain at the bottom. He suffered concussion, neck injuries, chipped teeth, and bit his tongue. He was pulled out of the water semi-conscious. On appeal, Justice Morris found the defendant should have locked out the tap and should not have used a chain at the bottom. Nevertheless, he said the fine of $30,000 was "manifestly excessive" compared to other fines imposed under s.16, given that the victim's injuries were at the lower end of serious harm. 
Industry:
Accommodation, Cafes and Restaurants
Sub-Industry:
Accommodation, Cafes and Restaurants
Risk:
Other
Harm:
Injury
Penalty Amount:
$6500.00
Reparation Amount:
$0.00
Appeared in Safeguard issue 67

Judgment Text

RESERVED JUDGMENT OF MORRIS J 
Morris J
Introduction 
[1]
This is an appeal against a fine of $30,000 plus costs imposed by A N MacLean DCJ on 11 August 2000 for a breach of s 16 of the Health & Safety in Employment Act 1992 (“HSE Act”). 
Facts 
[2]
The appellant is an incorporated society and operates a youth camp at Waingaro Road, Ngaruawahia. 
[3]
On 25 February 2000 the Whitiora Primary School held a school picnic at the camp. Each child had paid $3 to go on the picnic. The school had hired number 2 playground for the day. 
[4]
On the day of the picnic a 10 year old pupil of the school, Nemani Junior Delabatiki suffered concussion, neck injuries, chipped teeth and bit his tongue when he was in an accident on a 50 metre slide. 
[5]
The accident happened when Nemani, together with approximately eight other students broke away from the rest of the 150 pupils waiting to use the water slide and took a short cut over the top of the hill on which the slide was situated. The group Nemani was with had just come out of the swimming pool and were still in their togs. Prior to their adult supervision arriving, they turned the tap on at the top of the slide and began playing about the slide. Several of the children in the breakaway group slid a short distance down the slide but Nemani slid all the way down to a pool at the bottom. 
[6]
As he reached the bottom of the slide, Nemani struck a heavy chain encased in black alkathene piping, padlocked across the base of the shute. He fell into the water and was lifted out by two fellow students who called a teacher for help. He was in a semi-conscious state and was bleeding from the mouth when a teacher lifted him out. 
[7]
The appellant was charged under s 16 of the HSE Act. The maximum fine which can be imposed is $50,000. The section provides: 
“16. DUTIES OF PERSONS WHO CONTROL PLACES OF WORK- 
(1)
A person who controls a place of work (other than a home occupied by the person) must take all practicable steps to ensure that no hazard that is or arises in the place harms-- 
(a)
People in the vicinity of the place (including people in the vicinity of the place solely for the purpose of recreation or leisure): 
(b)
People who are lawfully at work in the place-- 
(i)
As employees of the person; or 
(ii)
As contractors engaged by the person; or 
(iii)
As subcontractors to a contractor engaged by the person; or 
(iv)
As employees of a contractor or subcontractor to whom subparagraph (ii) or subparagraph (iii) applies. 
(2)
A person who controls a place of work (other than a home occupied by the person) must take all practicable steps to ensure that no hazard that is or arises in the place harms people-- 
(a)
Who are in the place with the express or implied consent of the person; and 
(b)
Who-- 
(i)
Have paid the person (directly or indirectly) to be there or to undertake an activity there; or 
(ii)
Are there to undertake activities that include buying or inspecting goods from whose sale the person derives or would derive (directly or indirectly) any gain or reward. 
(3)
A person who-- 
(a)
Controls a place of work (other than a home occupied by the person); and 
(b)
Knows of any significant hazard that-- 
(i)
Is in, or is likely to arise in, the place of work; and 
(ii)
Arises from work that is being carried on, or has been carried on, for gain or reward in the place of work; and 
(iii)
Would not, in the ordinary course of events, be reasonably expected to be in, or to be likely to arise in, a place of work of that type; and 
(c)
Either-- 
(i)
Expressly authorises any other person to be in the place of work; or 
(ii)
Has personally received oral advice that any other person will, under the authority of any enactment, be working in the place of work; and 
(d)
Is not obliged, in relation to that other person, to comply with subsection (1) or subsection (2)-- 
must take all practicable steps to warn that other person of the significant hazard. 
(4)
Except in the case of the practicable steps required by this section to be taken in relation to any person described in subsection (2) or subsection (3)(c)(i), this section does not impose on any person who controls a place of work any duty in respect of any person who is in the place of work solely for the purpose of recreation or leisure. 
(5)
The warning required to be given to a person to whom subsection (3)(c)(i) applies-- 
(a)
Must be given to that person at the time at which the express authority to be in the place of work is given to that person; but 
(b)
If the express authority is given in respect of a group of persons or a body of persons, whether corporate or unincorporate, it is sufficient if the warning is given at that time to a representative or member of that group or body of persons. 
(6)
The oral advice required by subsection (3)(c)(ii) must be given by the person who will be working in the place of work or by that person's employer. ”
[8]
The appellant was in control of the place of work. The appellant's camp manager, Mr Ben Harrison, had placed the chain across the bottom of the slide several years prior to the accident to prevent trespassers using the slide. Instructions for the use of the water slide included unlocking the chain across the water slide and controlling the users. 
[9]
However, the appellant should not have placed a chain at the bottom of the slide because of the risk to people using the slide prior to it being removed. It should also have locked out the tap at the top of the slide to ensure water would not run down the slide causing it to be slippery. 
[10]
There had been a previous (but not identical) accident involving the slide in 1995 where a child was hurt while using the slide before the chain had been removed. At the time the appellant investigated the accident I note the particular school did not have permission to use the slide and had not received instructions on its use. Despite this the school had allowed children to play on the slide. At the time, the appellant believed it was the failure in the supervision of the children by their school which had led to the accident. As a result, the camp did not appreciate any changes should be made to the slide or the chain. 
[11]
The appellant pleaded guilty to the s 16 breach and on 11 August 2000 A N MacLean DCJ imposed a fine of $30,000 plus costs. 
Issues 
[12]
The appellant now appeals the level of fine imposed on three grounds: 
“[a]
The sentence is manifestly excessive upon examining prevailing tariffs. 
[b]
The award of the whole fine to the victim under s 28 of the Criminal Justice Act 1985 (‘CJA’) was inappropriate. ”
[13]
The court may allow an appeal only where the fine imposed is clearly excessive or inappropriate: Section 121(3)(b) Summary Proceedings Act 1957. In my view, the fine imposed in the lower court was clearly excessive and inappropriate. 
[14]
The full court decision in Department of Labour v De Spa & Co Limited [1994] 1 ERNZ 339 sets out relevant criteria to be considered by a judge in sentencing defendant under the HSE Act. The factors are: 
[a]
The degree of culpability; 
[b]
The degree of harm resulting; 
[c]
The offender's financial circumstances; 
[d]
The offender's attitude, with regard to remorse, co-operation with the authorities, and the undertaking of remedial action; 
[e]
A plea of guilty, if entered, will, in accordance with ordinary principles, be relevant to the level of fine; 
[f]
The need for deterrence; 
[g]
Compensation to the victim under s 28 CJA; 
[h]
The employer's safety record; 
[i]
The facts of the particular case. 
[15]
The second of the De Spa criteria considered by the judge was the degree of harm suffered. The appellant accepts that the injury in this case was serious harm. When considering this criteria, however, it is the nature of the seriousness of the harm which is relevant. While the nature of the injury is a relevant factor, it is not determinative see AE Sadd Limited v Department of Labour (Unreported, High Court Blenheim, AP 2-97, Doogue J). 
[16]
In De Spa it was noted that the degree of harm, while significant, was not substantial. Cases involving death or serious and long-term injuries or disabilities tend to attract higher fines than those involving a lesser degree of harm. 
[17]
In Fairfax Industries Ltd v Department of Labour [1996] 2 ERNZ 551, Patterson J held at p 555: 
“It follows in my view that, other factors being equal, a fine is likely to be higher in the case of serious harm than it is to be in another case of similar culpability but with only minor harm. ”
[18]
In this case the injuries suffered were a concussion, a chipped lower tooth, a bitten ton tongue, a bruised jaw and misaligned vertebrae in his neck. In my view the victim impact statement and information supplied by the parents as to the state of Nemani's injuries and the high financial reimbursement sought was totally inadequate and unsubstantiated. There was no medical evidence before the sentencing judge to establish the injuries would cause long term or permanent disabilities or pain. If such medical and financial claims are to be made at sentencing they must be substantiated. 
[19]
I have before me a more helpful letter from Dr Robert Murphy who discusses the possibility Nemani may suffer from post concussion syndrome as a result of the accident. This letter, however, was not before the sentencing judge and cannot be used now to bolster the decision he made at the date of sentencing. 
[20]
The appellant does not dispute there was serious harm in this case but submits the injuries were at the lower end of what constitutes serious harm. This is not a case, for instance, which involves a death, amputation or a serious and permanent disability or disfigurement. The sentencing judge failed to make this distinction, and in my view the fine should reflect this fact. 
[21]
It is clear the fine imposed was significantly more than it ought to have been in light of the gravity of the offence, having regard to other cases under the HSE Act. Counsel for the appellant prepared a useful schedule setting out convictions under s 16 of the HSE Act where the level of fine was $10,000 or more. The information was obtained from summaries of convictions by the Department for Labour. 
[22]
The schedule shows the maximum fine under s 16 (other than this case) is $25,000. All convictions, bar one, were for accidents causing death or significant injury. The one exception is for a case involving the failure to control a recognised hazard in a very dangerous work environment, thereby exposing several workers to an unacceptable degree of risk. 
[23]
The fine imposed in this case by the sentencing judge is $5,000 more than the maximum fine awarded under s 16 where death resulted. Unlike the cases in the schedule, however, this accident did not cause death or significant injury, nor did it involve a dangerous working environment. Not only is the sentence excessive under s 16 but the fine imposed is also out of kilter with prevailing tariffs under other sections of the HSE Act. 
[24]
Taking into account fines under s 16 and other under sections of the HSE Act, I find the sentence to be manifestly excessive. The appropriate course is to allow the appeal against sentence, quash the fine of $30,000 and substitute a fine of $6,500. I note the appellants have suggested a figure of $8,000 as being the appropriate fine. In my view, however, such is still on the high side in view of the prevailing principles and levels of fines previously imposed. I find the sentencing judge was entitled to award the whole of the fine to the victim. Such practice is not contrary to the regime of the accident compensation legislation. I am not prepared to vary his order in that regard. 
[25]
Judgment accordingly. There will be no order of costs. 

From OSH Tracker

Table of Contents