WorkSafe New Zealand v Tui Glen Farm Ltd [2021] NZDC 12766 (24 June 2021)

Last Updated: 8 July 2024

EDITORIAL NOTE: CHANGES MADE TO THIS JUDGMENT APPEAR IN [SQUARE BRACKETS]

ORDER PROHIBITING PUBLICATION OF EVIDENCE AND SUBMISSIONS CONTAINED IN THIS JUDGMENT PURSUANT TO S 205 CRIMINAL PROCEDURE ACT 2011. SEE http://www.legislation.govt.nz/act/public/2011/0081/latest/DLM3360354.html

IN THE DISTRICT COURT AT TOKOROA I TE KŌTI-Ā-ROHE KI TOKOROA

CRI-2021-063-000195

[2021] NZDC 12766

WORKSAFE NEW ZEALAND

Prosecutor v

TUI GLEN FARM LIMITED Defendant Company

Hearing:	24 June 2021
Appearances:	J Kirtlan for the Prosecutor M Hammond for the Defendant Company
Judgment:	24 June 2021

NOTES OF JUDGE P W COOPER ON SENTENCING

[1] In this case, Tui Glen Farm Limited is charged with failing to comply with the duty to ensure the health and safety of workers so far as reasonably practicable, in particular, exposing a worker to risk of death or serious injury in the task of operating a Suzuki all-terrain vehicle.

[2] On 10 January 2020, [name deleted – the deceased], an employee on a farm operated by the defendant, was killed when a Suzuki quadbike she was riding overturned. She was tasked with moving stock from one paddock to another. She

WORKSAFE NEW ZEALAND v TUI GLEN FARM LIMITED [2021] NZDC 12766 [24 June 2021]

accessed the area using the quadbike. The quadbike overturned on a sloping area, pinning her beneath, and causing her death.

[3] An examination of the quadbike showed the tyres were inflated well beyond the manufacturer’s tyre pressures. The front left tyre was 6 psi, the front right tyre 16 psi, the back left tyre 8 psi, and back right tyre 9 psi.

[4] The recommended tyre pressure for this quadbike was 5.1 psi for the front tyres and 4.4 psi for the rear tyres.

[5] There were ample warnings regarding the dangers of operating the bike with improper tyre pressures. There was a warning affixed to the bike itself, along with the proper tyre pressures. There were a number of warnings in the manual for the quadbike. These warnings were all to a similar effect; that improper tyre pressure can cause loss of control and result in injury or death.

[6] The opinion of Mr David Taylor, a crash investigation specialist engaged by WorkSafe, is as follows:

Quadbike tyres are designed to run on low pressure and to be able to tolerate and absorb impacts and arduous conditions. They are high profile and wide so as to allow for deformity and have the ability to maintain traction in adverse and uneven terrain. An overinflated tyre above the manufacturer’s recommended pressure does not allow the tyre to deform and therefore may contribute to loss of traction and control of the quadbike, especially if the bike is overloaded. This is dictated by the pressure of the tyre. Therefore, over-inflation reduces the surface area of the contact patch.

[7] He goes on to say:

I would say undulating terrain would require careful and skilful driving, plus the fact of the tyre pressures would certainly not help. As already stated, overinflated tyres do not deform to absorb impacts. Traversing a slope with lower pressure left tyres on the lower side would increase the risk of a rollover, especially if unevenly loaded or overloaded. Any deviation from the manufacturer’s recommended tyre pressures and exceeding load capabilities may contribute to rollover on slopes or uneven ground.

[8] In addition to the fact that the tyre pressures on the quadbike had not been maintained in accordance with the manufacturer’s recommendations, the WorkSafe

investigation also showed that the defendant had failed to adequately train and instruct its workers concerning the maintenance of the tyre pressures in accordance with the manufacturer’s instructions.

[9] Looking now at the sentencing factors the Court is required to take into account in a case such as this, s 151(2) of the Health and Safety at Work Act 2015 states:

• (2) The court must apply the Sentencing Act 2002 and must have particular regard to—
  
  • (a) sections 7 to 10 of that Act; and
    
  • (b) the purpose of this Act; and
    
  • (c) the risk of, and the potential for, illness, injury, or death that could have occurred; and
    
  • (d) whether death, serious injury, or serious illness occurred or could reasonably have been expected to have occurred; and
    
  • (e) the safety record of the person (including, without limitation, any warning, infringement notice, or improvement notice issued to the person or enforceable undertaking agreed to by the person) to the extent that it shows whether any aggravating factor is present; and
    
  • (f) the degree of departure from prevailing standards in the person’s sector or industry as an aggravating factor; and
    
  • (g) the person’s financial capacity or ability to pay any fine to the extent that it has the effect of increasing the amount of the fine.
    

[10] The guideline judgment for sentencing is Stumpmaster v Worksafe New Zealand.1 It sets out the four-step sentencing process:

• (a) to assess the amount of reparation to be paid to a victim;
  
• (b) to fix the fine by reference to the guideline bands, and then having regard to aggravating and mitigating factors;
  
• (c) to determine whether orders under ss 152 to 158 of the Health and Safety at Work Act are required; and
  

1 Stumpmaster v Worksafe New Zealand [2018] NZHC 2020.

(d) to make an overall assessment of the proportionality and appropriateness of imposing the sanctions referred to in the previous three steps.

[11] So undertaking now that first step of assessing the emotional harm reparation, [the deceased] was 35 years of age. She was a German national. She was employed by Tui Glen Farm Limited from June 2017 until her death.

[12] There are two identifiable victims; her mother and [name deleted – the deceased’s partner], who is said to be her partner.

[13] In that regard, I note that while he and [the deceased] were very close, obviously, they were not living together and nor did they share financial arrangements.

[14] A victim impact statement has been provided from him. They had been together, it appears, since about 2014 but that is not clearly stated in the victim impact statement.

[15] Her death has had a deep impact on him.

[16] [The deceased]’s mother came to New Zealand after the accident, but it seems that WorkSafe has lost contact with her since her return to Germany. I understand that WorkSafe has been endeavouring to make contact with her, but since about January this year, there have been no response to emails and telephone calls.

[17] WorkSafe has referred to various sentencing examples to assist the Court in relation to emotional harm reparation. The ones that are of obvious relevance are WorkSafe New Zealand v Toll Networks (NZ) Limited,2 Worksafe New Zealand v Calder Stewart Distribution Ltd3 and Worksafe New Zealand v Guru NZ Ltd.4

[18] Based on those cases, WorkSafe submits that the appropriate emotional harm reparation is $110,000.

2 Worksafe New Zealand v Toll Networks (NZ) Ltd [2018] NZDC 11132.

3 Worksafe New Zealand v Calder Stewart Distribution Ltd [2019] NZDC 15976.

4 Worksafe New Zealand v Guru NZ Ltd [2000] NZDC 2955.

[19] The defendant submits that an appropriate figure is $100,000 and offers this amount.

[20] In Oceana Gold (New Zealand) Ltd v WorkSafe New Zealand,5 the Court noted that for fatal accidents, emotional harm reparation awards fall within the range of

$75,000 to $110,000.

[21] I agree with the prosecution’s submission in this case that $110,000 is the appropriate figure.

[22] The prosecution had submitted initially that as WorkSafe has no recent contact with [the deceased]’s mother, [the deceased’s partner] is the only available victim to receive the reparation. I do question that submission, and I will return to this point later in this sentencing judgment.

[23] Turning now to the question of assessing the amount of the fine, the sentencing process in terms of the case of Moses v R6 applies, as does the Stumpmaster case, which sets out the four bands of culpability.

[24] Both the prosecution and the defence accept that the starting point in this case falls towards the upper end of band 2, the medium culpability band, with a range of between $250,000 and $600,000.

[25] I agree with that assessment and I note the following points:

The operative acts or omissions

[26] There was a failure to maintain the quadbike tyre pressures as recommended by the manufacturer’s instructions and failing to adequately train workers concerning maintaining the quadbike’s tyre pressures in terms of those instructions. There were simple, practicable steps reasonable for the defendant to have taken to ensure the

5 Oceana Gold (New Zealand) Ltd v WorkSafe New Zealand [2019] NZHC 365.

6 Moses v R [2020] NZCA 296.

safety of worker, maintaining the tyre pressures recommended and ensuring the workers were trained accordingly.

The nature and seriousness of the risk of harm and the realised risk

[27] Improper tyre pressure is linked to quadbike rollovers and the consequences of that are obvious; a risk of injury or death. In this case, that risk was a realised risk; the death of [the deceased].

The degree of departure from prevailing standards in the industry

[28] The quadbike and the manual and WorkSafe’s online guidance in relation to the safe use of quadbikes all emphasise the importance of appropriate tyre pressures and the need for regular tyre pressure checks and operator awareness. As for the obviousness of the hazard - this is already discussed. There were clear warnings on the bike itself and the manual.

The availability, cost and effectiveness of the means necessary to avoid the hazard

[29] Again, this is obvious. I note that the defendant was subsequently issued with an improvement notice and has taken appropriate steps to avoid the hazard. In doing so, in fact, the defendant has gone beyond what was required of it under the improvement notice.

[30] The prosecution refers to various sentencing examples and submits the starting point for the fine should be $450,000, towards the upper end of band 2.

[31] The defence submission as to the starting point for the fine is more or less in line with that submission. I agree and take the starting point to be $450,000.

[32] The defendant is entitled to a reduction for mitigating factors and, again, there is little dispute about that:

• (a) early guilty plea, 25 per cent;

• (b) remedial steps taken about the accident;
  
  • (c) reparation;
    
  • (d) willingness to engage in restorative justice, another 15 per cent in total, bringing the total for mitigating factors to 40 per cent or $180,000.
    

[33] That would result in a fine of $270,000. I will discuss that again when I come to the final step, that is, proportionality assessment.

[34] The prosecution also seeks an award of $10,846.13 being costs of prosecution, including external costs incurred. There is no dispute about that.

[35] In relation to proportionality assessment, I have seen affidavits from Ms Rebecca Walling and the company’s accountant, Mr Keith Earle, filed on behalf of the defendant, and an affidavit of Mr J Shaw, a chartered accountant engaged by WorkSafe.

[36] The defence submits that the defendant would have difficulty in paying a fine of the magnitude of $270,000 from cashflow, and also would have difficulty because [financial details deleted] to pay that type of fine in one lump sum. The defendant submits that the fine should be adjusted to take account of that.

[37] Those submissions in relation to [the difficulty in paying the fine in a lump sum] are supported largely by the observations of Mr Shaw, the accountant engaged by WorkSafe.

[38] As an alternative to reducing the fine, the prosecution submit that the fine could be paid by instalments.

[39] So in assessing the overall proportionality, I do make an adjustment to the quantum of the fine. First of all, $110,000 is a significant payment for emotional harm reparation. Secondly, the circumstances of the defendant company, while in a reasonably stable financial position at the present time, simply do not allow for a payment of a fine of that magnitude, particularly in a lump sum.

[40] In assessing that proportionality adjustment, I reduce the fine to $230,000, and I direct that that be paid by instalments over a four year period.

[41] So in summary, the sentence is an order for emotional harm reparation of

$110,000, a fine of $230,000, and costs of $10,846.13.

[42] I make an order prohibiting publication of the defendant’s financial details.

[43] I make an order permitting the release of the summary of facts.

[44] In relation to the distribution of the reparation payment, I make an order that those payments be made into court pending further order of the Court as to distribution.

[45] I am going to direct that in one month’s time, a telephone conversation occur between counsel and myself concerning, hopefully, the whereabouts of [the deceased]’s mother. I think the greater part of the reparation should be paid to her, but I need to have some further details as to how that can practically be achieved.

Judge PW Cooper

District Court Judge

Date of authentication: 30/07/2021

In an electronic form, authenticated pursuant to Rule 2.2(2)(b) Criminal Procedure Rules 2012.