Worksafe New Zealand v Broadspectrum (New Zealand) Limited (formerly Transfield Services (New Zealand) Limited) [2016] NZDC 26458 (23 December 2016)

	Home \| Databases \| WorldLII \| Search \| Feedback District Court of New Zealand

BROADSPECTRUM (NEW ZEALAND) LIMITED [FORMERLY KNOWN AS TRANSFIELD SERVICES (NEW ZEALAND) LIMITED]

Hearing:	14 November 2016
Appearances:	Ms Petricevic for the Prosecutor G Nicholson & R Monigatti for Broadspectrum (NZ) Ltd S Bonnar QC for NZ Traffic Hamilton Ltd
_Judgment:	_{23 December 2016 at 3.00 pm}

[1] The defendants have pleaded guilty to charges laid in the Huntly District Court under the Health & Safety in Employment Act 1992 (“HSE Act”) and its regulations.

14 November 2016. Given the volume of submissions and information put before the Court, I reserved my decision to give a fair consideration to matters raised for the

_{prosecution, defence and victims. Given the objects and purposes of the
HSE Act}

WORKSAFE NEW ZEALAND v BROADSPECTRUM (NEW ZEALAND) LIMITED [FORMERLY KNOWN AS TRANSFIELD SERVICES (NEW ZEALAND) LIMITED] [2016] NZDC 26458 [23 December 2016]

and the purposes and principles under the Sentencing Act 2002, health and safety cases necessitate prioritising accountability, responsibility and deterrence, as well as providing for the interests of the victims and providing reparation for the harm caused by the offending.

[3] Both defendants have acknowledged their fault and remorse by pleading guilty to the charges. They have expressed to the Court their willingness to meet an emotional harm reparation award at a figure to be set by the Court. It is not compensation for loss for Mr Bond, the victim, because it is not possible to compensate for his loss. The Court can make an award only. I repeat what was said by the Court at the sentencing hearing, that it extends its sympathies for Mr Bond’s loss and that of the children of the deceased. I accept this time of year must be an immensely sad one for them. I heard Mr Bond when he read his victim impact statement in Court, I have considered his statement and that of Mrs Bond’s son and her sister. I have given full consideration to the Worksafe submissions on the issue of the effect on the victims of this tragedy. I hope that Mr Bond and his family understand that awards of reparation and compensation are constrained by the law and that I am duty bound to apply that law.

[4] I also refer to the comments made by counsel on behalf of the companies at the hearing. Statements by the companies expressing sympathy for Mr Bond and his family were read to the Court. I do not have any doubts that the companies are sincere in the expression of those sympathies to Mr Bond.

Offence description: Transfield Services (New Zealand) Limited, being an employer, did fail to take all practicable steps to ensure that no action or inaction of its employees, namely Dennon Bell and John Gisborne, while at work, harmed any other person, namely Veronique Bond, in that it failed to ensure she was not exposed to the hazards associated with vehicle movements within the worksite at Island Block Road

Charge: Regulations 26 and 70 of the Health and Safety in Employment Regulations 1995 and section 50(1)(c) of the HSE Act

Offence description: Transfield Services (New Zealand) Limited, being an employer which commenced notifiable work, namely construction work in an excavation in which a person is required to work in a space more than 1.5 metres deep and having a depth greater than the horizontal width at the top, did fail to take all practicable steps to lodge a notice of that intention in accordance with the Health and Safety in Employment Regulations 1995.

Charge: Sections 15 and 50(1)(a) of the HSE Act. Maximum penalty: A $250,000 fine

Offence description: NZ Traffic Hamilton, being an employer, did fail to take all practicable steps to ensure that no action or inaction of its employees, namely Keith Beer and Kareama Witika while at work, harmed any other

person, namely Veronique Bond, in that it failed to ensure she was not exposed to the hazards associated with vehicle movements within the worksite at Island

[6] In brief, Transfield won a contract to undertake roadworks on Island Block Road, near Meremere in Waikato. Transfield engaged Traffic Hamilton as a contractor to operate and manage the traffic management plan for the worksite.

[7] On 4 March 2015, Transfield and Traffic Hamilton were continuing the work on site. Traffic Hamilton employees were controlling the traffic, including using stop/go signs and a pilot vehicle to guide traffic through the site.

[8] John Gisborne, a Transfield employee, drove a truck and trailer onto the site. As was routine, Mr Gisborne did not look at the stop/go paddle or stop, but proceeded onto the site. Veronique Bond, who was riding a motorcycle, followed Mr Gisborne into the work site.

[9] Once inside the worksite, Mr Gisborne reversed the truck. He had a blind spot behind him of at least 75 metres, but did not use a spotter. Ms Bond, who had stopped behind the truck, tried to get out of the way. At this point, Mr Witika who was controlling the stop/go paddle, yelled through the radio that Mr Gisborne should stop. By the time Mr Gisborne heard shouts over the radio for him to stop the truck, he had already run over Ms Bond and her motorbike.

[11] I set out below the full summary of facts and refer specifically to paras [46] – [49]. Set out in those paragraphs are the practicable steps which both defendants failed to take to ensure that no action or inaction of its employees ensured the deceased was not exposed to the hazards associated with vehicle movements within the work site. In my assessment of culpability for sentencing purposes, I have

considered each and every one of those failures in assessing penalty and reaching a view about reparation. By and large both defendants accept those failures, with some variations as to weight and significance to be attached to them.

1. In 2014 Waikato District Council conducted a tendering process for road improvements, including the Island Block Road location. Transfield Services (New Zealand) Limited (Transfield), now named Broadspectrum (New Zealand) Limited, won the contract. Transfield is a large company which provides maintenance and construction services to the resources, energy, industrial, infrastructure, property and defence sectors.

2. Under the contract, all management activities would be undertaken by Transfield staff and all subcontractors would be managed by Transfield and fully inducted into Transfield policies and work practices. Dennon Bell was identified as one of the key personnel and site work was to be subject to his supervision. Mr Bell's role was that of Project Manager for the Island Block Road site and, as such, was to be responsible for overall management of the worksite which included ensuring accurate site audits and critical safety checks were undertaken in accordance with the terms of the contract.

3. As part of the tender process, the Waikato Council identified a number of hazards, including road user traffic, construction traffic and road users travelling at speed through the worksite. However this was not a complete list of hazards and, under the contract, Transfield was required to put in place a health and safety management plan, including a site specific hazard register.

4. Transfield was also required to design and implement a temporary traffic management plan (traffic management plan) that was compliant with the New Zealand Transport Association's Code of Practice for Temporary Traffic Management 2012 (the Code). Such a traffic management plan must be approved by the Road Controlling Authority which, in this case, was the Waikato District Council.

5. A traffic management plan must nominate a person, usually with specific training, as the Site Traffic Management Supervisor. Transfield's traffic management plan nominated Shaun Tuffery as the Site Traffic Management Supervisor. Prior to work beginning at the site, Transfield determined that it had insufficient resources to manage the TMP.

6. Transfield sub-contracted the operation and management of the traffic management plan to NZ Traffic Hamilton Limited (Traffic Hamilton). Traffic Hamilton is in the business of arranging and carrying out traffic management requirements from basic traffic management to more

complex situations. Transfield did not conduct a formalised handover process of the TMP. Nor was there any record that the STMS named on the TMP was no longer responsible for the site.

7. There was no formal written contract specific to this site but a purchase order number was subsequently provided for the work. The traffic management plan was provided to Traffic Hamilton prior to Traffic Hamilton commencing work at the site.

8. Transfield did not advise or otherwise obtain Waikato District Council's approval to sub-contract traffic management to Traffic Hamilton as was required under the contract. At some point, Waikato District Council became aware of the engagement and raised no objection to it when its representatives visited the site.

2 February 2015. The traffic management plan as initially approved followed the authorised traffic management plan outlined in the Code

(CoPTIM) describes best practice for the safe and efficient management and operation of temporary traffic management (TIM) on all roads in New Zealand.

10. On the first day of operation at Island Block Road Transfield applied for an engineering exception decision from Waikato District Council to enable it to operate the traffic management plan at variance to the plans and guidance set out in the Code. To obtain an exemption, the applicant must establish the Code is impractical and unreasonable and explain how safety with nevertheless be ensured.

11. Transfield's engineering exception decision application stated that the lead pilot would maintain maximum clearance from plant and stay in constant radio contact with the traffic controller and all plant operators. Under the proposal, the traffic controller would verbally instruct the first vehicle to follow the pilot vehicle. The area leading up to the traffic controller was to be flanked by cones for at least 10 metres.

12. The EED application did not state why the Code was impractical or properly explain how safety would be ensured. The EED did not consider plant and equipment stopping when road users passed through the site, or specific site access for work vehicles.

13. Subsequently (at some point after March 2015), Transfield stated that it had applied for the EED because it considered it necessary as the existing road way was 5.5 metres wide, with 3.5 metre to 4 metre deep drains on either side of the road. Transfield considered this created risks to the public while the live lane was operating and says that this is why it elected to exclude the use of centre-line coning devices and proposed the use of a pilot vehicle in conjunction with traffic controllers to control the traffic flow.

14. On 12 February 2015 the exception was approved. However, expert opinion is that the road width provided sufficient space for a single width lane while retaining delineation. The removal of the delineation created a hazard to the workers and public which was not adequately controlled.

16. Prior to commencing work that day, Transfield and Traffic Hamilton employees gathered for a toolbox meeting, which included discussing hazards and signing a hazard book. Employees from both companies signed two separate hazard sheets; one for Transfield and one for Traffic Hamilton. The Traffic Hamilton hazard sheet identified reversing vehicles/plant as a hazard and stated this should be minimised by using a spotter at all times. The Transfield Toolbox Meeting Hazard sheet stated that

17. Mr Gisborne, the Transfield employee who operated the truck and trailer unit involved in the accident had signed onto his company tool box hazard sheet, but had not done so with regards to Traffic Hamilton's sheet.

18. That day Traffic Hamilton's employees were giving effect to the traffic management plan. Mr Beer was designated as the Site Traffic Management Supervisor. He was driving the pilot vehicle through the site ensuring vehicles made it through the site safely. Mr Terekia was the traffic controller at one end of the site and Mr Witika was the traffic controller at the other end of the site. Mr Witika had completed his Traffic Control Course three days prior, on 1 March 2015.

19. Transfield also had a number of employees on site; Mr Sugar was driving a digger, Mr Gisborne was driving a truck and trailer (owned by Transfield), Mr Pio was driving a roller, Mr Hape was assisting Mr Terry to lay mesh on the gravel and Mr Jerry was driving a truck and trailer.

20. Mr Gisborne was transporting metal stone chip from the quarry to the construction site. Prior to commencing work, Mr Gisborne checked the truck he was driving including the lights, tyres and confirmed the trailer was properly attached. He did not record these checks.

21. Mr Gisborne returned to the site with his fourth load. He did not see anyone behind him on the way to the site. He arrived at the entry of the site where the first traffic controller, Mr Witika, was located. He saw that the pilot vehicle was stationary at the other end of the site with the other traffic controller. He did not notice if Mr Witika's paddle was on stop or go but proceeded onto the site. It was customary on this site for the Transfield vehicles to assume right of way if no other vehicles were stopped ahead of them at the entry to the site. However, this right of way custom was at variance with the EED and TMP.

22. It was routine for Transfield vehicles to proceed onto the site regardless of whether the paddle was on stop or go if there were no vehicles ahead of the Transfield vehicles.

23. A motorcyclist, Ms Veronique Bond, followed Mr Gisborne into the work site. It was not until the truck and trailer unit passed through that Mr Witika saw the motorbike. He tried to wave the bike to stop but Ms Bond thought he was waving and simply waved back.

24. Mr Witika stated that he radioed that a motorcyclist had entered the site behind the truck. However, no other person in possession of a radio heard any such transmission.

25. When Mr Gisborne arrived at the point where they were dumping the metal, Mr Sugar was not ready for him to dump his load. He decided to move back and park out of the way. He checked his side mirrors and then began to reverse the truck.

Mr Witika saw this and screamed into the radio "stop the truck, stop the truck". Mr Gisborne heard this and braked. However, he had already

27. Ms Bond died from multiple blunt trauma injuries, with severe crushing injuries of the head, neck, left side of the thorax and abdomen associated with multiple internal lacerations and a pattern of petachiae on the right side of the thorax and abdomen.

were completed for this vehicle on the day of the incident or during the works at Island Block Road.

29. The reverse lights on the trailer of the truck Mr Gisborne was driving were not working and the reversing warning device operated only intermittently. The truck and trailer had a blind spot to at least 75 metres behind it. A motorcycle positioned centrally behind the truck was only visible through both mirrors at 80 metres.

30. Transfield's hazard register stated that, in order to control the risk posed by reversing vehicles, it should ensure reverse lights and beepers operate if fitted. Additional recommended include trip devices, reversing sensors and reversing cameras.

31. Transfield was required to develop a specific hazard register for the site. However, Transfield implemented a generic hazard register which was used across the whole of New Zealand. The register does not list all of the hazards identified by Waikato Council in its documents and it did not mention that employees should be aware the public could

follow them into the worksite. The risk of traffic following work vehicles into a site is identified as a hazard in C14.1.1 of CoPTIM, where it states "operators should be aware that road users may follow work vehicles into a working space" and goes onto say "check before reversing."

32. While the hazard register did identify vehicular traffic as having a "high risk rating" requiring job analysis, no job analysis templates or completed job analysis documents were located at the Island Block Road site or supplied to the prosecutor when requested.

33. Only one of the four Traffic Hamilton staff working on the day of the incident had been inducted into Transfield's policies and work practices. However, the proposal document stated Transfield would ensure all subcontractors would be fully inducted into Transfield's polices and work practices.

34. Transfield's health and safety plan for the "Miranda AWT Package" included four sites, one of which was Island Block Road. The plan stated that a minimum of one field inspection would be undertaken each week. These inspections included a field audit of Island Block Road on 25 February 2014. Mr Bell was not involved in that audit.

35. Transfield produced a contract quality plan (as it was required to do) which explained how Waikato's Council requirements would be met. It refers to specific inspection checklists and worksheets used to control and verify compliance with quality requirements. These included a daily traffic control set-up and audit checklist, temporary speed restriction records, TIC site condition audit sheets, STMS site monitoring checklist. These documents are to be available onsite. However no completed documents were found at the site and nor were any template documents found. The documents do not exist.

36. The Health and Safety Plan also requires a Job Start process be conducted daily and recorded on a specific document. Reversing vehicles were not identified as a hazard.

37. Transfield was a member of Roading New Zealand (a now defunct organisation) which published the Guideline for Controlling Reserving Vehicles (2009) which notes that nearly a quarter of all deaths involving heavy and specialist off-road vehicles used for work operations in roading construction occurs while the vehicle is reversing. The Guidelines emphasise the importance of training in ensuring safety around reversing vehicles. The Guidelines were referred to on page 8 of Transfield's HSE Register as a legal requirement in relation to driving vehicles and equipment and in particular to reversing vehicles. The guide recommends the use of a properly trained spotter and the following physical measures to reduce the risk of accidents:

37.3 Reversing sensing devices that can scan the area into which the vehicle is reversing;

38. The Guidelines note that none of the steps set out in [33.1] -[33.6] are sufficient on their own but when systematically combined as a set of precautions they can reduce the risk of persons getting hurt.

39. As set out in the HSE Act, if elimination of the hazard is not practicable then steps should be taken to isolate people from the hazard (s 9). An employer must ensure that there are effective methods in place for systematically identifying new and existing hazards and regularly assessing each hazard identified (s 7).

40. Transfield failed to take all practicable steps to ensure that no action or inaction of its employees, namely John Gisborne and Dennon Bell, harmed any other person in that vehicle movements within the worksite at Island Block Road.

41. The following action or inaction of Mr Bell contributed towards the hazards associated with vehicle movements on the worksite:

41.1 Mr Bell was responsible for supervision of the site but he did not adequately monitor the site prior to the incident;

41.2 He failed to ensure that Transfield complied with its processes for hazard identification, mitigation and risk assessment;

41.3 He failed to ensure that the contract with the Waikato District Council was complied with insofar as it related to safety including by conducting, or tasking someone else to conduct, regular site inspections;

41.4 He failed to audit or otherwise check there was a safe working environment, including by checking the sufficiency of documentation on site.

42. The following action or inaction of Mr Gisborne contributed towards the hazards associated with vehicle movements on the worksite:

42.1 Mr Gisborne failed to properly check the truck before driving it and therefore failed to observe that the reverse lights were not working and that the reverse warning was only intermittent;

42.2 He failed to use a spotter or otherwise adopt safe reversing practices before reversing the truck; and

42.3 He failed to follow the traffic management plan by failing to check whether the traffic controller had his sign on stop or go.

43. The following practicable steps should have been taken to ensure that no action or inaction of its employees harmed any other person:

43.4 Ensure that Mr Bell complied with Transfield's processes for hazard identification, mitigation and risk assessment;

1.1 Comply with the Code in relation to the organisation and set up of the traffic management plan at Island Block Road

43.5 Ensure the contract with the Waikato District Council was complied with insofar as it related to safety;

43.7 Require all Transfield plant to comply with instructions given by traffic controllers, including adherence to stop and go signage.

44. On 24 and 25 February 2015 excavation work occurred on site in relation to the replacement and installation of culverts and drainage. The works required excavation to a depth greater than 1.5 metres and the horizontal width of the top exceeded that of the bottom, meaning that this was work that must be notified to WorkSafe.

46. Traffic Hamilton also failed to take all practicable steps to ensure that no action or inaction of its employees, namely Mr Beer and Mr Witika, harmed any other person in that it failed to ensure Veronique Bond was not exposed to hazards associated with vehicle movements within the worksite at Island Block Road.

47. The following action or inaction of Mr Beer contributed towards the hazards associated with vehicle movements on the worksite:

47.1 Although acting as site traffic supervisor, he did not ensure that Transfield vehicles complied with the traffic management plan, in particular, he did not ensure that Transfield vehicles complied with the stop/go signs utilised by Traffic Hamilton employees; and

47.2 He did not manage the traffic, or require Traffic Hamilton's employees to manage the traffic, in accordance with the traffic management plan because he failed to require at least 10 metres of coning flanking entry to the site as set out in the traffic management plan.

48. The following action or inaction of Mr Witika contributed towards the hazards associated with vehicle movements on the worksite:

48.1 He failed to require Transfield vehicles and other vehicles to stop and only enter the enter the worksite in accordance with the stop/go signs; and

48.2 He failed to advise Traffic Hamilton and Transfield employees that a motorcyclist had entered the site without the pilot vehicle or, alternatively, failed to ensure that Traffic Hamilton and Transfield employees had received that advice.

49. The following practicable steps should have been taken to avoid exposure to the hazards:

49.1 Ensure its employees, particularly Mr Beer as Site Traffic Management Supervisor, were aware of, and properly implemented the traffic management plan and EED for the Island Block Road worksite;

49.2 Ensure the traffic control was set up in accordance with the relevant traffic management plan by ensuring there was at least

10 metres of coning flanking the traffic on the incoming lane approaching each traffic controller;

49.3 Ensure its employees required Transfield vehicles to comply with the stop and go signs;

49.4 Ensure there were effective emergency procedures, including effective radio procedures, in the event unauthorised road users entered the worksite; and

49.5 Ensure that the traffic control implemented on site was audited to ensure that it complied with the terms of the traffic management plan and EED.

50. Transfield has previously appeared in court in relation to health and safety matters.

[12] While ostensibly complying with their respective obligations under the HSE Act, the defendants’ standard of compliance can only be described as lax at best. Steps put in place by the defendants to seemingly take all “practicable steps” required under the Act, were completely negated by the series of failures noted in the summary. Had the deceased been stopped at the entry point to the stop, had the

advice that she was in the site been heard over the radio, had there been a spotter or a reversing camera for the truck, had there been some cone placement where planned, this tragedy would not have occurred. In fact, of the failures just mentioned, had one of these practical steps worked in the way intended by the defendants, again the tragedy would not have occurred. Whether it was a failure of just one practicable step or the culmination of failed “practicable steps” is not of overriding significance in my assessment of culpability in this case. The fact is there was a very poor standard of compliance with the planned “practicable steps” on the work site.

[13] Transfield produced a contract quality plan which explained how the Waikato Council’s requirements would be met. The plan referred to specific inspection checklists and worksheets used to control and verify compliance with quality requirements. These included a daily traffic control set up and audit checklist, temporary speed restriction records (“TTC”), site condition audit sheets (“STMS”), site monitoring checklist. The requirement was that those documents were to be available on site. No completed documents were found at the site and nor were any template documents found. Worksafe asserts the documents simply do not exist. It is claimed that in fact the documents did exist but went missing after the incident occurred. In the Court’s view that documentation is a way of auditing that the “practicable steps” were in place and functioning. They should in effect be secured and I would have thought in their own interests the defendants would have ensured that documentation was always kept in a safe place. How they went missing, whether by accident, intentionally or by uplifting by any other agency can only be speculation, but the fact that the documentation was missing in my mind adds to the overall impression of a poor standard of compliance with the Act. That is a failure that rests more with Broadspectrum/Transfield than with NZ Traffic Hamilton.

Department of Labour v Hanham & Philp Contractors Limited & Ors1 the Court considered that the assessment of culpability is concerned with the degree of

blameworthiness for the offending. The Court saw the assessment for culpability including:

• The identification of the operative acts or omissions at issue. This will usually involve the clear identification of the “practicable steps” which the Court finds it was reasonable for the offender to have taken in terms of s 2A HSE Act.

In the present case the “practicable steps” are succinctly set out in paras [46] – [49] of the agreed summary of facts. In respect of each defendant the Court finds that it was reasonable for both of them to have taken those practicable steps as identified in the summary.

• An assessment of the nature and seriousness of the risk of harm occurring as well as the realised risk.

On the construction site in the present case, there was an obvious risk of serious harm. That risk seems to me to have been well recognised by both defendants. A framework was in place to avoid the risk of serious harm to road users. That in itself allows an inference that the defendants knew of the risks on-site.

Likewise there was an obvious and serious risk involved in reversing a truck and trailer unit, particularly where the driver was not able to see behind him. Both defendants accept that it is normal practice for a truck of that size to be equipped with a reversing camera or to have in place a spotter to ensure that while reversing, the driver has a pair of eyes to the rear of the vehicle.

Counsel for the defendants do not necessarily agree with Worksafe’s submission that the placing of cones would necessarily remove risk. It occurs to me that cones may have been arranged to allow Mr Witika a better view of the rear of any vehicle as it passed through the entranceway.

The nature of the risks is best demonstrated by what evolved into a tragedy on 4 March 2015.

The Worksafe submissions refer to the Roading New Zealand Guideline for Controlling Reversing Vehicles. There are a number of recommendations from this guide to the industry which includes a recommendation to provide a properly trained spotter or a reversing camera and other devices that would serve to stop the truck of there is an obstruction behind the vehicle as it is reversing.

There is no dispute that an obvious hazard was involved in Mr Gisborne reversing the truck and trailer. The risk itself had been identified by Transfield in its hazard register. The register said that the hazard should be controlled by the traffic management plan, signs, cones, stop-go signs, pilot vehicles and personal protection gear. NZ Traffic’s own hazard sheet stated the risk of reversing vehicles should be minimised by using a spotter at all times.

Counsel’s submissions for Broadspectrum raise an issue that Ms Bond was not able to be seen by Mr Witika at the stop/go position and nor by the driver of the truck. It is submitted that Ms Bond was close behind the truck and did not have an opportunity to get out of the way at the time that Mr Gisborne reversed. To a degree there is mitigation in that submission but it is outweighed by the failure to have a spotter behind the vehicle before reversing. The “hazard” was very obvious as soon as a decision was made to reverse the truck without employing a spotter. To have a spotter to my mind is not simply applying an industry standard, nor a matter of implementing a traffic management plan, but is commonsense, given the length of the truck and trailer unit and the permanent lack of rear visibility because of it.

On this factor the principal submission of Worksafe is that there was a plan in place, there were identified hazards and all that was required was compliance with the traffic management plan set by Broadspectrum itself. No further means were necessary other than to ensure compliance in a satisfactorily standard way of that plan. It is acknowledged that the practicable step of fitting trucks with a reversing camera can be costly and indeed counsel for Broadspectrum informed me that that had been done to the company’s trucks at a considerable cost. The fallback position without cameras is to have a spotter, and in complying with industry standards, that was an expected cost and provided for in the company’s own traffic management plan. The Worksafe submission is that a failure to put what was on paper into practice should be treated seriously. Health and safety processes have little benefit in the abstract; there efficacy comes from their implementation in a practical way, on a day to day level. I agree with that proposition and commented on the pointlessness of “practicable steps” being put in place but not complied with to a good standard.

Implicit in the comments made above, there is sufficient covered on this factor.

[15] The Court in Hanham identified that the first main step is to fix reparation. This involves consideration of the statutory framework, taking into account any offer of amends and the financial capacity of the offender.

[16] The second main step is to fix the fine. This should follow the methodology of Taueki, namely fixing a starting point on the basis of the culpability for the offending and then adjusting it upwards or downwards for aggravating and mitigating factors.

[17] The Court, accepting that a broad assessment is involved and that sentencing is not a mathematical exercise, said that starting points should generally be fixed according to the following scale:

[18] The levels of fines suggested reflect starting points before taking into account financial capacity, the payment of reparation or any other aggravating or mitigating factors relating to the offender. Tailoring to the individual circumstances of the case remains essential, as is the need to avoid undue hardship.

• Any warnings or notices under s 56C HSE Act. [20] Mitigating features may include:

Both companies have pleaded guilty and I accept they have saved a great deal of Court time if not guilty pleas were maintained.

I take into account in fixing penalty what I have determined is in respect of both companies a strong sense of remorse that has been demonstrated by the guilty pleas and also the acknowledgement that reparation should be paid and thereby ordered by the Court. Both companies have shown considerable responsibility by advising the Court that they are in a position and have an ability to make reparation payment.

I have accepted the points made by both counsel in respect to remediation for their respective clients.

[21] The Court in Hanham noted that there are obvious difficulties in establishing some sort of tariff for a discount in the level of fines to reflect an order for reparation or the payment of a monetary sum prior to sentencing, and said that an assessment of the whole of the circumstances must be made before deciding what extent the order for reparation should be taken into account under s 40(4) Sentencing Act when fixing the fine.

[22] Where insurance covers the reparation, the Court concluded that some modest allowance ordered may be justified to recognise the employer's responsible approach in securing insurance cover to provide for injured employees.

[23] Financial capacity of the offender is also a consideration, and where the offender establishes a limited financial capacity then the fine may need to be reduced, keeping in mind the statutory priority for reparation where there is

incapacity to pay both reparation and a fine. In this case it is accepted the fines can be met.

[24] The third main step is to assess whether the overall burden of the reparation and fine is proportionate and appropriate.

[25] The health and safety breach involved an aircraft engineer being ingested into the air intake of a Hercules aircraft engine. The victim died at the scene.

[26] While working through the Hanham factors, the Court held that the defendant did not take the practical step of ensuring that the air intake was adequately guarded. This led to a risk of serious harm. Further, that risk was obvious. The informal nature of practice was not a firm way to decline that risk.

[27] As such, the High Court took the culpability of the defendant as falling in the high band. When deciding on that assessment, the Court considered the following cases where systemic failures lead to fatalities:

– six students and a teacher died during a flash flood. The defendant should have obtained adequate weather information and closed the

(b) DoL v Fonterra Co-operative Group Limited4– employee collapsed on a conveyer/stacker system and was crushed – there was a failure to physically close off the area and to install additional emergency stop

(c) DoL v Carter Holt Harvey DC Whakatane5 – employee got caught in a heavy duty press. It was a freak and unexpected accident. The employee had been trained properly to use the machine. Culpability fell between the middle and high bands and warranted a starting point

cleaning inside an aggregate bin using sand as a working platform. He was engulfed when the sand was drawn from the bin. Safety practices were in place, but the danger was obvious – a starting point

[29] Before determining the figures for reparation and fines, I wish to finalise the issue of consequential financial loss.

[30] Counsel for New Zealand Traffic Hamilton accepts that an order for consequential loss can made in a situation where the loss is properly quantified and has been caused due to the offence. However, they submit that in the present case any order for financial loss is problematic.

[31] The defence submits that the Court of Appeal has recognised that issues of causation, remoteness, materiality and intervening acts can all be considerations when deciding on consequential loss.

[32] When considering the relocation costs, the defence notes that while Mr Bond’s decision is perfectly understandable, it is a conscious decision Mr Bond has made for the well-being of his family. It was a personal decision and one that can be considered an intervening act. Other people in Mr Bond’s situations may not have

[33] The defence’s submissions on the matter of employment are much the same. Mr Bond made a conscious decision to take up lesser paid employment and therefore it is an intervening act. Further, the defence notes that the financial loss has not been properly quantified and therefore a reparation payment cannot be made.

[34] Counsel for Broadspectrum is largely in agreement. They note that the consequential losses claimed by the prosecution are too remote and are not what a reasonable person could have foreseen. Mr Bond had other options that he could have taken. Further, the defence also notes the significant uncertainty on the question of quantum.

[35] Finally, there does not appear to be any precedent for financial loss to be awarded in such situations.

[36] However, counsel for New Zealand Traffic Hamilton is open to financial loss being ordered, but only for issues where there is a close degree of connection with the offence and the loss is quantifiable.

[37] It is not necessarily true that Mr Bond’s actions after the death of his partner were unforeseeable. It seems foreseeable and connected to the offending that a father, who had lost his wife, would work less as he has to look after his daughter. Such an act is not necessarily too remote. However there are two factors that go against a ruling of consequential loss.

[38] First, while Mr Bond’s choices may have been foreseeable, the extent of those choices might not be. One might expect a father to work fewer hours or move to a more manageable home. However, Mr Bond’s change in employment has been substantial and the total loss in salary may not have been foreseeable.

[39] More problematic is a lack of evidence around the quantity for the loss. The Court has very little quantifiable evidence to go on. In light of these two factors, an order of consequential loss is problematic.

(a) Emotional harm reparations should equal $100,000, plus financial loss. This order should be split 60/40 basis between Broadspectrum and Traffic Hamilton;

(d) A starting point of $80,000-$90,000 for Traffic Hamilton. [41] Traffic Hamilton’s position is that:

(a) WorkSafe’s emotional harm reparations of $100,000 are correct and the 60/40 split is fair;

(a) Emotional harm reparations should be at $90,000, and the split should be 50/50;

(b) No award for consequential financial loss should be made since there is too much uncertainty; and

[43] Given the sad and grave consequences for the victims in this case, being the husband of the deceased, her 18 year old student son and her five year old daughter, it is appropriate in my view that there be a payment of reparation to them in the sum of $120,000. It is appropriate that the award as ordered be met by Transfield/Broadspectrum NZ Ltd paying 60 percent of the total sum and NZ Traffic Hamilton Ltd paying 40 percent.

[44] At the hearing I did ask if the deceased’s husband and her son had any wishes in regard to apportionment of the $120,000. They specifically asked that be left to the Court. I have considered as much as I can the circumstances they are in and determine that 75 percent of the full reparation figure be paid to Mr Bond and his daughter, with the balance of 25 percent being paid to the son.

Less 15% for other mitigating features including steps taken to remediate -14,250

Less 15% for other mitigating features including steps taken to remediate -11,250

District Court of New Zealand

Worksafe New Zealand v Broadspectrum (New Zealand) Limited (formerly Transfield Services (New Zealand) Limited) [2016] NZDC 26458 (23 December 2016)