An early childcare centre has been ordered to pay more than $200,000 after it failed to identify the danger posed by a dead tree that toppled and injured toddlers.
Four toddlers were seriously injured when the tree fell to the ground of the outside play area at Discoveries Educare in the Auckland suburb of Newmarket.
A "large cracking noise" was heard as the tree collapsed on and around children and adults on November 8, 2016, Judge Eddie Paul said.
The four children were hospitalised, with a 2-year-old boy suffering several bone fractures, including two to his skull.
A girl suffered a serious facial laceration, described by her mother as being "down to the bone", which required revision surgery in 2018.
The court heard she has become self-conscious of her appearance, lost confidence and found it harder to make eye contact with people.
"And perhaps disturbingly now draws herself with a scar," Judge Paul said.
A victim impact statement written by the parents of the boy was read to Auckland District Court today.
They said their once outgoing, happy boy now appeared to be a nervous boy all the time.
He was fearful of trees, small spaces, being left alone and suffered from nightmares, the court heard.
"It is like he is scared of everything now."
They were worried his education and ability to socialise with others would suffer in the future, the court heard.
"He is our only child and he is the hope of our whole family."
Discoveries Educare Ltd was prosecuted by WorkSafe for failing to ensure so far as was reasonably practicable, the health and safety of workers.
The childcare centre was also prosecuted for failing to ensure the health and safety of other persons.
The court heard the tree described by a qualified arborist as an evergreen eucalyptus that should have carried leaves all year around.
However, evidence presented to the court showed the tree began to brown in 2014 and the next year a photo showed it "appearing skeletal".
The arborist said: "It would have been obvious to me the tree was dead and that it had been dead for quite some time."
Judge Paul said the risk it posed combined with the wind gusts that day were obvious.
"In short it was there for all to see."
However, mitigating factors taken into account included that Discoveries Educare Ltd had pleaded guilty, was remorseful, had no prior convictions and was believed to be unlikely to reoffend in this way.
The landlord, Heng Tong Investment (Heng Tong), was prosecuted for failing to ensure so far as was reasonably practicable, that the health and safety of other persons, was not put at risk from work carried out as part of the conduct of the business.
Michael Heron QC told the court his client had pleaded guilty at the earliest opportunity and apologised.
"Certainly Heng Tong acted immediately as a result of this incident," Judge Paul said.
Another tree at the playcentre was identified as hazardous and was removed, while another tree outside the centre was also removed, the court heard.
They were not the primary offender but a large dead tree was in the playground which Heng Tong had leased, Judge Paul said.
"I don't accept it was not a known risk."
Today in the Auckland District Court, Discoveries Educare Ltd was convicted and ordered to pay more than $200,000 which included a $172,000 fine.
They were ordered to pay reparations of just over $46,000 to the victims' families, which took into consideration $3500 had already been paid.
Heng Tong was fined $89,200 and ordered to pay reparations of about $30,000.
Speaking after the sentencing, Northern Investigations manager for WorkSafe Danielle Henry said it was pure luck that nobody was killed.
"Our investigation found that the tree had been dead for more than a year before it fell," she said.
"The dead tree should have been identified and appropriate steps should have been taken to address this risk, such as removing the tree from the playground.
"Discoveries Educare Limited failed to monitor and manage the condition of the tree and Heng Tong Investment Limited [which leased the property to Discoveries Educare] had not carried out regular visits, assessments or inspections."
Both were responsible for ensuring children and staff were not put at risk by the condition of the tree, yet both failed to identify this very obvious risk, Henry said.
"Discoveries Educare Limited and Heng Tong Investment Limited both had a duty of care they failed to meet," she said.
"This was a big, old tree and a very obvious risk to those on the premises. This incident shows in near-catastrophic detail just how important it is for businesses to assess all risks their operations pose to workers and others.
"But that's not the end of their responsibilities – they must put appropriate controls in place to mitigate those risks. If they don't have the in-house expertise to identify obvious risks and their controls, they should engage someone who does."
Speaking after the sentencing, Discoveries Educare director Ajit Singh said their hazard management system had been updated since the incident and was regularly reviewed.
"Our staff had noticed that the tree had stopped producing leaves," Singh said.
"However, we did not appreciate that this presented a risk of harm, and that the tree could potentially fall over at any time."
It was their failing, as they were responsible for ensuring that trees on the property did not represent a risk to staff, students or visitors, he said.
"We recognise that we should have taken expert advice on first becoming aware of the deteriorating condition of the tree.
"We apologise to the children and their families for what they went through and we will share the material we have developed with others to help prevent similar accidents in future."
Discoveries Educare had participated in a restorative justice programme, he said.