Most Read Contributor in New Zealand, September 2016
The High Court has confirmed that an employee's carelessness
at work will not exonerate the employer when it comes to a health
and safety prosecution.
Eziform Roofing Products Ltd"1 was ordered in
the District Court to pay reparation of $40,000 and fined $18,000
for failing to ensure the safety of an employee under the Health
and Safety in Employment Act 1992.
The Department of Labour appealed the fine on the basis that it
was too low.
The accident occurred as two employees were trying to fit
guttering on a two-storey house. One man tried to stamp it into
place while standing on the edge of the roof and holding on to the
other man's shoulders. He lost his footing and fell about 5.5m
onto concrete below, suffering multiple fractures and permanent
damage. He is unlikely ever to work as a roofer again.
The District Court, in deciding an appropriate penalty, took
into account the employee's "foolish" actions and
imposed a modest fine in today's terms.
But the High Court took the view that to allow employee
carelessness to minimise an employer's culpability would
undercut one of the policy objectives of the Act and raised the
fine to $60,000.
Chapman Tripp comment
This case provides clarity around the vexed issue of whether an
employee's contribution to his/her accident is relevant in
sentencing the employer; an area where there has been mixed
authority in the past. In short, an employee's contribution
will not be relevant where there are clear steps that an employer
should have taken to prevent serious harm.
It also reflects a key difference between health and safety
sentencing and employment law: in employment law, the contributory
actions of an employee will generally be taken into account in
determining the overall penalty an employer may face.
Our thanks to Heather McKenzie for writing this
1Department of Labour v Eziform Roofing
Products Ltd  NZHC 1526 24 June 2013
The information in this article is for informative purposes
only and should not be relied on as legal advice. Please contact
Chapman Tripp for advice tailored to your situation.
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