Waikato Business News October/November 2016

8 WAIKATO BUSINESS NEWS October/November 2016
The price of a life - how a court assesses
the financial cost of an employee’s death.
On September 20, 2015, Samantha
Kudeweh, a zookeeper at Hamilton Zoo,
was fatally mauled by one of the Zoo’s
male Sumatran tigers, Oz. Samantha left
behind a husband and two young children.
Almost one year to the
day, on September
16, 2016, Hamilton
City Council was sentenced
for failing to take all practicable
steps to protect her
and ordered to pay a fine
of $38,250 and reparation of
$10,000 to her two children.
Judge Denise Clark said
$100,000 was the appropriate
amount of emotional harm
reparation for the family,
but noted that the council
had already made voluntary
payments totalling $116,000.
Howeve,r Samantha’s husband,
Richard Kudeweh, has
disputed these payments have
been made.
So how does the court
assess the impact of an
employee’s injury or death
and reduce it to a monetary
amount? The sentencing principles
commonly used are
those set out in a 2008 High
Court decision: Department
of Labour v Hanham & Philp
Contractors.
These principles require
the court to take a three-step
approach: first by assessing
the emotional harm reparation,
including any financial
loss, that should be paid to
the victim or the victim’s
family, then assessing an
appropriate fine and finally,
making an overall assessment
of the case.
Take-home tips for employers
would be to ensure from the
outset that when an accident
does happen, the employer
shows full co-operation
with the investigators which
usually involves providing
all training records, health
and safety policies and any
other information requested,
promptly.
Typically, both the prosecution
and the defence inform
the court where they consider
the amounts of reparation
and fine should start from,
based on cases involving similar
injuries to the victim,
the impact of those injuries
on the victim and a comparison
to cases where similar
failures in a company’s obligations
to take all practicable
steps to protect employees
(and others validly on
premises under a company’s
control) have occurred. The
judge then makes the final
decision on the amounts.
Reparation and fines serve
two distinct purposes;
the former
is to compensate
the victim or the
victim’s family
and the latter is
punitive against
the defendant and
a deterrent to others.
Where there
are financial constraints
on how
much a company
can pay overall,
reparation for the
victim is prioritised.
Factors used
when assessing
an appropriate
amount of reparation
include the
nature of any disability
incurred, whether it is
permanent or temporary and
any financial loss suffered by
the victim or the victim’s family.
The Court will also take
into account any reparation
already paid or offered to the
victim, the response of the
offender, any action taken to
remedy the victim’s suffering,
the financial capacity for
the offender to pay and other
factors such as remorse and
participation in restorative
justice.
When attempting to set
the starting point for the
fine, the degree of culpability
is categorised into one of
three bands; low culpability
from zero to $50,000; medium
culpability $50,000 to
$100,000; and high culpability
from $100,000 and above.
In the case of Hamilton City
Council, Judge Clark set the
starting point at $85,000, so at
the higher end of the medium
band.
From this starting point,
EMPLOYMENT LAW
> BY ERIN BURKE
Employment lawyer and director at Practica Legal
Email: erin@practicalegal.co.nz phone: 027 459 3375
the Court then either raises or
decreases the amount depending
on any aggravating or mitigating
factors. Aggravating
factors such as previous
health and safety convictions
or failure to co-operate with
WorkSafe investigators can
raise the fine from the initial
starting point. Mitigating factors
which can decrease the
fine include an early guilty
plea (up to 25 percent), co-operation
with WorkSafe investigators,
remedial action taken
since the event to prevent a
further occurrence, a good
health and safety record and
remorse. The latter factors can
add up to a further 30 percent
reduction from the starting
point of the fine.
Finally, the Court stands
back and makes an overall
assessment of the amounts for
reparation and fine including
such factors as the ability of
the offender to pay, the need
for denunciation, deterrence
and accountability and the
extent to which reparation
ordered will “make good” the
harm done.
Take-home tips for employers
from the above would be
to ensure from the outset that
when an accident does happen,
the employer shows full
co-operation with the investigators
which usually involves
providing all training records,
health and safety policies and
any other information requested,
promptly. It is only following
an investigation that
WorkSafe decides whether to
proceed with a prosecution
and they have six months to
make that decision. If they
do proceed with a prosecution,
there is certainly value
in acknowledging the incident
that happened was potentially
preventable by entering a
guilty plea as early as possible.
Finally, this is definitely
a situation where engaging a
lawyer specialising in health
and safety law at the earliest
opportunity is essential.