New Zealand Law Society - Lack of harm and 'industry standards' relevance examined in appeal

Lack of harm and 'industry standards' relevance examined in appeal

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Sentencing approaches under the Health and Safety in Employment Act 1992 (HSEA) were recently considered in Jones v WorkSafe New Zealand [2015] NZHC 781.

This appeal involved a challenge to sentences imposed in the District Court for HSEA offences – essentially for operating quad bikes at workplaces without wearing helmets. In the District Court, starting points of $50,000 were taken.

On appeal, the High Court considered several issues that were taken with the District Court sentencing. This article will address two which may be of relevance to practitioners.

Relevance of a lack of harm to sentencing

The first was a submission that the sentencing judge had erred in failing to take into account the lack of realised harm (ie, that no incident or injury had actually occurred) and had instead sentenced on the basis that a lack of harm is irrelevant.

In the leading High Court decision of DoL v Hanham & Philp Contractors Ltd (2008) 6 NZELR 79 (HC), the Court set out several factors that should be considered when assessing culpability, the Court ultimately setting out three sentencing bands. One of these culpability indicators requires a sentencing court to undertake “an assessment of the nature and seriousness of the risk of harm occurring as well as the realised risk” (Hanham at [54]).

Discussing that analysis, the Court in Hanham stated: “Mr Stanaway emphasised that sentencing levels should take into account the potential for harm, since the purpose of the HSE Act was to prevent harm in the workplace. It followed, in his submission, than even when the actual harm resulting from the offending was at a relatively low level, the court should have regard to the potential for harm when fixing the appropriate fine. Mr Stanaway also submitted, correctly in our view, that very serious injury or death can sometimes result from low levels of carelessness on the part of the offender. It follows that care must be taken when assessing culpability by reference to the outcome. On the other hand, both the HSE Act and the Sentencing Act oblige the court to have regard to the degree of harm that has occurred” (at [51]).

Drawing on the final sentence of the quote above, as well as other decisions,1 complaint was made in Jones that the sentencing judge had failed to consider the lack of harm.

Considering the point, Justice Dobson held that an absence of harm should not result in a materially different sentence, stating: “I am not satisfied that the observations by the Full Court in the last two sentences of [52] of Hanham & Philp require a sentencing Judge to necessarily treat an absence of actual harm as requiring the offending to be seen as materially less serious. To do so would risk giving a defendant credit for what may only be a matter of good fortune involved in the circumstances where exposure to a risk did not manifest itself in harm to the persons involved” (at [35]).

However Justice Dobson went on to accept that the degree of harm will remain relevant and should still be taken into account – albeit that a lack of harm would rarely shift culpability across sentencing bands, stating: “Certainly, the degree of harm that has occurred has to be taken into account. In determining the level of culpability, however, it would rarely be justified to treat the lack of actual harm as transforming the band of culpability into which a particular case would otherwise fit. The nature of the risk which the defendant ought to have been aware of, and the extent to which that risk was realised by actual harm being inflicted, are two components of the culpability analysis” (at [38]).

What are ‘industry standards’?

The second appeal point of moment involved another of the culpability features from Hanham, being “the degree of departure from standards prevailing in the relevant industry” (at [54]).

In Jones, WorkSafe had produced material to the sentencing judge authored by WorkSafe and ACC, setting out various (sensible) reasons and advice why helmets should be worn. In the District Court this material had been accepted as an industry standard. Subsequently it was found that the departure from that “industry standard” was high.

On appeal it was submitted that the material was not an industry standard but was, in fact, a regulator’s opinion, the appellant drawing on the various ways in which the wearing of helmets could be an industry standard (through statute and subordinate legislation, codes of practice etc). Accepting this point, the Court stated: “I accept that the materials provided to the Court by Worksafe do not constitute ‘industry standards’ in the narrow or formal sense that may have been contemplated by the Full Court in Hanham & Philp. They are not of the same type as, say, the precise definition of the safe mode of operating a particular type of saw in a sawmill or a joinery factory. Nor are they issued by an industry group with specific responsibility for promulgating standards for the safe operating practices within the industry. They are aspirational to the extent that they describe best practice in terms intended to encourage change of behaviour in farmers’ use of quad bikes” (at [57]).

“This distinction does not mean that such materials are not appropriately placed before the Court, but the reliance placed on them may need to be tempered by their relative standing for conduct in the relevant workplace activities” (at [58]).

“Assessing this criticism overall, the Judge has given the materials produced by Worksafe a status as industry standards that was not justified” (at [61]).

Practitioners engaged in this field may wish to draw on this decision in sentencings involving a lack of harm, especially when faced with a submission that lack of harm is irrelevant, as degrees of harm should be taken into account. Likewise in cases where “aspirational” material is advanced as the “industry standard”, practitioners should consider what weight the sentencing court should be placing on that material.

Tim Mackenzie is a senior associate in the litigation and dispute resolution team of Wynn Williams.

Proform Plastics Limited v Department of Labour (2013) 10 NZELR 449 (at [20] – [21]), Department of Labour v VLI Drilling Pty Ltd, DC Greymouth, CRI 2011-018-1036, 26 October 2012, (at [32] & [34].

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