A recent health and safety prosecution in New South Wales has resulted in a total penalty of over half a million dollars. The new Health and Safety at Work Act 2015 (HSW Act) means that this sort of penalty could be on the way in New Zealand.
The case in Australia involved the prosecution of both a company, Romanous Contractors Pty Ltd, and its director, John Romanous, in his capacity as an officer of the company. The prosecution was brought under the legislation on which our HSW Act is based, and has both the same requirements and the same penalties. In relation to these charges, the maximum fine for the company was $1.5 million, and for the officer was $300,000.
Romanous Contractors was the principal contractor on a multi-level retail construction. The concrete pour for the second level had taken place, with a void left in part of the slab to accommodate a smoke vent. A sub-contractor bricklayer, Mr Czyz, was driving a forklift on the slab. No-one witnessed the fall, but Mr Czyz was found directly beneath the penetration on the concrete floor, 5.1 metres below. He sustained fatal head injuries and died at the scene.
Investigators discovered that there was "a plank of wood positioned across the penetration with a piece of plywood resting on top partially covering the penetration. Neither had been nailed down or otherwise secured." They also found that "Romanous Contractors did not inform workers at the premises of the existence of penetrations on the second floor and a number of workers were unaware of the penetrations prior to the incident."
The Judge decided that the "risk presented by an unprotected penetration was obvious." He noted that there were "very simple measures available to minimise the risk, and these measures were known by Mr Romanous. Had Mr Romanous checked that the plywood had been secured by Mr Adams, he would have discovered that the penetration was not adequately guarded and remedial action could have been taken." As a result, the "conduct of the offenders fell well short of that expected from responsible persons involved in high risk constriction [sic] activity."
When assessing the penalty to impose, the Judge noted that as well as general deterrence, and despite the guilty plea, there was need for specific deterrence in this case:
"The offenders have not accepted responsibility for their failings that led to Mr Czyz's death. It is likely that Romanous Contractors will be wound up at the conclusion of these proceedings and will not operate a business involving high risk construction activity in the future. It is possible that Mr Romanous will return to building work including high-risk construction activity in the future."
The Judge therefore decided that in respect of both Romanous Contractors and Mr Romanous, the case "calls for the imposition of a substantial fine as a result of the objective seriousness of the offence, the need for specific and general deterrence and the need for denunciation of the conduct". He fined Romanous Contractors $425,000 and Mr Romanous $85,500.
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