Two companies appeal workplace injury and death decisions in High Court at Rotorua

Cropp Logging and OceanaGold appeared in the High Court at Rotorua today. Photo / Supplied

Two appeals relating to accident reparation payments have been argued in the High Court at Rotorua on Friday. Both dealt with decisions delivered in the Tauranga District Court by Judge Thomas Ingram last year.

The first, involving Bay of Plenty logging company Cropp Logging Ltd, stemmed from injuries sustained by Aaron Sloane, 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.

Aaron Sloan with his partner Kendra, outside Tauranga District Court after his former employer, Cropp Logging Limited was sentenced in relation to WorkSafe prosecution in September 2018. Photo / File

The company 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, it failed to ensure Sloane 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, reparation was set at $80,000 and the company was also ordered to pay $10,000 costs.

The second appeal at the joint hearing was brought by mining company OceanaGold, at the direction of its insurance company, following the $350,000 reparation it was ordered to pay to 27-year-old Tipiwai Stainton's partner and child as the result of his death in the company's Correnso Waihi mine on July 28, 2016. In addition, it was fined $378,000 with costs of $3676.

The Oceanagold Martha open pit gold mine. Photo / File

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

Both companies were prosecuted by Worksafe.

Lawyers for the companies argued before Justice Geoffrey Venning that the reparation payments were excessive.

For Cropp Logging, Bill Lawson submitted Sloane had contributed to his injuries, rather than the company not having a proper safety process in place.

"I appreciate it is a very sensitive issue attributing blame to someone who was injured, but it ought to be considered. He did not properly follow industry standards and that failure was at least a contributing factor," Lawson contended.

He said victim culpability did have some bearing on the reparation ordered.

He understood Sloane had been able to return to a lesser role in the forestry industry.

For Worksafe, Lucy Moffatt said Sloane had only been able to return to the industry briefly because of the ongoing effects of the life-threatening injuries he sustained.

These had resulted in significant personality changes, with Sloane suffering from post-traumatic stress disorder, loss of ability to carry out ongoing tasks, his intimate relationship had suffered and he now walked with a limp.

She urged the judge to bear in mind an updated victim impact statement which was not read to the court.

Sloane's injuries meant he'd been forced to return to ACC.

In reply, Lawson said he wasn't asking for all reparation to be removed but that it be adjusted to take into account the victim's contributory negligence and that a well-known industry standard had been breached.

OceanaGold counsel, Garth Gallaway, said what was sought were some guidelines around reparation and the need for definition how reparation was reached between emotional and consequential harm.

He noted the company had paid Stainton's partner $50,000 and $150,000 in another family payment.

Gallaway argued this raised the question whether in light of these payments the court was right to order a further $350,000 reparation.

The amount had been set against the victim's loss of earnings at the time of his death. If there had been injury, not death, ACC would have paid 80 per cent of the victim's entitlement based on earnings but in the case of death, this dropped to 60 per cent.

"It does sound harsh, I understand that," Gallaway said.

Responding for Worksafe, Anna Longdill said there were wider reparation issues than any ACC shortfall to be ruled on.

Whatever the outcome of the case, OceanaGold is not seeking any repayment of the money provided to Tipiwai's family, including the $350,000 reparation ordered by the District Court.

Justice Venning told counsel they'd raised interesting points which would take him some time to work through. He formally reserved his decisions, adding he'd release them as soon as possible.

OceanaGold Waihi General Manager Bernie O'Leary said after the court hearing 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."