Bay of Plenty logging firm and insurers for Waihī mine company win reparation appeals

Cropp Logging Ltd and insurers for Oceana Gold (NZ) Ltd have won their reparation sentence appeals. Photo/ File

A Bay of Plenty logging firm and the insurers for a Waihī mine have won their appeals against the amount of reparation to be paid after two workplace accident prosecutions.

The first WorkSafe prosecution involved Cropp Logging Ltd after injuries were suffered by worker Aaron Sloan, 45, when he was hit by a dislodged log on his first day on the job as a head breaker-out at a Rangiuru site on March 16, 2017.

Cropp Logging pleaded guilty to failing to take all reasonably practicable steps to ensure a staff member was not exposed to the risk of serious injury or death.

In particular, the company failed to ensure Sloan was fully inducted into his role with the identification of relevant hazard identifications on his new work site.

As well as being fined $100,000, Tauranga District Court Judge Thomas Ingram ordered the company to pay $80,000 reparation and $10,000 costs.

The second appeal relates to a $350,000 reparation order made against OceanaGold for lost earnings to 27-year-old Tipiwai Stainton's partner and child as the result of his death at its Correnso Waihī mine on July 28, 2016.

In addition, it was fined $378,000 with costs of $3672.

The company earlier admitted failing to ensure, as far as reasonably practicable, the health and safety of Stainton, exposing him to the risk of death.

Last month legal counsel for Cropp Logging Ltd and the insurers for OceanaGold (New Zealand) Ltd told Justice Geoffrey Venning in the High Court at Rotorua that they believed the reparation orders made were "manifestly excessive".

Cropp Logging's lawyer Bill Lawson argued that Judge Ingram erred in categorising his client's culpability as high, given Sloan had not properly followed industry standards.

He also submitted that too much weight had been placed on information relating to Sloan's loss of earnings and the Judge had erred in taking into account inflation.

Lawson submitted $20,000 to $30,000 reparation was the more appropriate sum.

In his recent written appeal ruling, Justice Venning said he agreed that inflation should not have been taken into account without any data to support that view.

He also agreed Judge Ingram erred in failing to identify what part of the reparation order was for emotional harm, but Judge Ingram was correct in not taking into Sloan's actions.

Justice Venning allowed the appeal and set aside the reparation order of $80,000 and replaced it with a further order in the sum of $57,500.

Garth Galloway, the legal counsel for the insurers for OceanaGold (NZ) Ltd also argued the $350,00 reparation order for lost earnings should be quashed.

Galloway submitted Judge Ingram was incorrect in not taking into account the $200,000 paid to Stainton's partner and child, and also wrong in the way he assessed the loss.

Justice Venning agreed and he set aside the original reparation order, after also taking into account insurance and shortfall in ACC payments.

However, the insurers of OceanaGold did not seek repayment and Justice Venning made an order that OceanaGold was not entitled to the return of the payments already made.

OceanaGold Waihi general manager Bernie O'Leary said after the court hearing in February
that the company had not appealed the original decision.

"This appeal has been made by our insurance company. We understand that for legal reasons the appeal must be made in our name."

"We have been advised the impact on the insurance industry is potentially very significant and we recognise that this is a test case of considerable importance to the insurers."

"Nevertheless, whatever the outcome of this action, the money provided to Tipiwai's family by OceanaGold will not change. Our focus is on the family and no repayment will be sought. We stand by what we said at the time of the accident. We will stand by Tip's whanau, they will not go wanting, and we will treat Tip's son as one of our own."