Fines over workplace injuries, deaths doubles

A top defence lawyer says new research which has found fines for employers of staff injured or killed on the job has doubled in the last four years will be used by judges during sentencing in future.

A University of Canterbury (UC) study found the spike came after the Department of Labour - now the Ministry of Business, Innovation and Employment (MBIE) - challenged three district court sentences with appeals to the High Court in 2008.

Researchers argued that the fines imposed by the district court were inadequate and did not reflect the five-fold increase in the maximum fine that Parliament had written into health and safety legislation.

Nigel Hampton QC welcomed the research, saying it would now be cited by lawyers in court and utilised as a sentencing tool for judges.

"And it may well result in MBIE calling for an upping of the sentencing tariff generally, again, and seeking amendments to the sentencing limits in the health and safety in employment legislation by further raising the maximum financial penalties able to be imposed," he said.

"All in all, this UC research is a very useful piece of work. It will be helpful for both lawyers and judges as a sentencing tool."

The ultimate goal of health and safety in employment legislation is to prevent employment-related accidents by financially punishing employers of injured or killed workers, UC economics and finance researcher Dr Andrea Menclova.

"Our research indicates that the cases used in the appeal were largely representative of district court health and safety in employment sentencing of that time and that the then Department of Labour had been trying to create a precedent for large increases in fines in HSE sentencing in general," she said.

The research team, comprising Alan Woodfield, Stephen Hickson and Dr Menclova of the department of Economics and Finance at the UC's School of Business, have manually coded 2438 health and safety charges from March 1994 to April 2012 and are still adding recent cases.

Researchers hope it may be published in the NZ Law Journal once the "finishing touches" are complete.

The raw data comes from a comprehensive (MBIE) database of successful prosecutions and is based on documents produced directly at court, including case decisions, sentencing notes, returns on prosecutions, and summaries of facts.

For each case, they have coded information on the degree of employer's culpability, degree of harm resulting, employer's safety record, the presence of employer's financial limitations, remorse, cooperation with the authorities, remedial action, guilty plea, the need for general and particular deterrence (as viewed by the judge), employer size, the presence of voluntary payment by the employer, attendance at a restorative justice conference, employee culpability, and the number of victims and related defendants.

They found that since the High Court appeal, the average level of fines has "increased substantially" and employer's culpability became a key determinant.

The average fine has risen from $13,000 to $33,000 since 2008, an medium to high culpability fines have jumped from about $20,000 to more than $30,000.

Dr Menclova said the degree of harm suffered by the employee hardly impacted the level of fines, but boosted reparations.

But employers continue to receive "sizeable discounts" for financial limitations and have even increased.

"Prior to the appeal, an employer's financial limitations reduced total financial liability by around $12,000 and this has now risen to $19,000," she said. "It will be interesting to see whether the Department of Labour considers the new sentencing practice adequate or whether further increases in HSE fines will be called for."