Health and Safety penalties "increasing markedly"
6 April 2006
Health and Safety penalties “increasing markedly”
It has always been difficult for employers to defend health and safety prosecutions brought by the Department of Labour, and now the penalties charged upon conviction are increasing markedly.
That’s according to Grant Nicholson, Senior Associate at Kensington Swan and leader of the firm’s Health and Safety practice.
Speaking this week to industry experts at Worksafe Expo 2006, one of New Zealand’s largest health and safety events, Mr Nicholson says fines imposed against employers have remained static in recent years but reparations have become a significant additional penalty.
“The Department of Labour’s view is that fines for fatalities should be in the area of $100,000 or more, and that there is nothing wrong with reparations awards of similar amounts.
“No court has yet imposed a pure fine of anything like $100,000, but several have ordered reparations of at least that much.
“There is no science behind these numbers, and Courts are routinely ordering reparations without the benefit of a reparations report.”
Grant Nicholson says between 2002 and 2005, the amount of total reparations awarded in health and safety prosecutions increased by more than 800%.
“There appears to be an alarming increase in the use of reparations as financial compensation for victims of accidents.
“This is even in cases where the injury is not particularly serious, there is no real emotional harm and, sometimes, the victim has been at fault.”
“Under the Sentencing Act, reparations are meant to compensate victims for emotional harm or loss, not physical harm.
“Compensation for the injury itself is supposed to be covered by ACC. The Courts are now effectively introducing workplace injury damages by the back door.”
“This poses the question of whether ordering reparations in addition to ACC payments amounts to double-dipping. It is only a matter of time before an appropriate legal test case considers this issue,” he says.