Ocean Fisheries Ltd v Maritime New Zealand

[2021] NZHC 2083

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IN THE HIGH COURT OF NEW ZEALAND CHRISTCHURCH REGISTRY

I TE KŌTI MATUA O AOTEAROA ŌTAUTAHI ROHE

CRI-2020-409-000161

[2021] NZHC 2083

BETWEEN

OCEAN FISHERIES LIMITED

Appellant

AND

MARITIME NEW ZEALAND

Respondent

Hearing:	25 February 2021
Appearances:	J Eaton QC and S Fraser for the Appellant D La Hood for the Respondent
Judgment:	13 August 2021

JUDGMENT OF NATION J

[1]                 On 18 October 2015, the fishing trawler Jubilee sank off the Canterbury coast. All three crew members drowned. Their bodies were located in the wheelhouse of the sunken vessel.

[2]                 The appellant (Ocean Fisheries) pleaded guilty to failing to take all reasonable steps to ensure the safety of the three men on board the fishing vessel.1 Ocean Fisheries appeals the reparation for emotional harm sentence imposed by Judge Couch in the District Court.2 The respondent (Maritime NZ) also appeals a decision not to order emotional harm reparation for a sister of one of the deceased crew members on the assumption she did not wish to receive reparation.

1      Health and Safety in Employment Act 1992, ss 18 and 50(1)(a); maximum sentence $250,000 fine.

2      Maritime New Zealand v Ocean Fisheries Limited [2020] NZDC 18702.

OCEAN FISHERIES LTD v MARITIME NEW ZEALAND [2021] NZHC 2083 [13 August 2021]

Facts

[3]                 The following brief summary of the tragedy and offending was provided by the prosecutor and included in the Judge’s decision:3

The charge arises out of the foundering of the fishing trawler Jubilee on 18 October 2015. The Jubilee was operated by the defendant; it was owned and maintained by two related companies. Three crew members were aboard when the vessel sank: [named]. All three drowned.

The precise cause of the sinking is unknown. However, it can be inferred that the vessel foundered. A gradual ingress of water in to the fish room affected its stability, eventually causing the vessel to sink by the stern.

All three crew members’ bodies were located in the wheelhouse, where they normally slept. It can be inferred that all on board were asleep as the fish room gradually flooded. If any had been awake, they ought to have noticed the ingress of water with sufficient time to notify the other crew and abandon the vessel. It appears that by the time that the crew awoke it was too late to escape.

The defendant was obliged to take all reasonable steps to ensure that none of the crew was harmed while at work. It failed to take the following reasonably practicable steps:

1.     Ensuring the effective identification of hazards and risks through regular risk assessments and reviews of the hazard register by management; and ensuring that identified hazards and risks, and the means of eliminating and addressing these, were effectively communicated to crew members by:

(a)reviewing the follow-up training and competency assessment received by crew members, and the quality of that training; and

(b)reviewing the systems for communication about these matters between management and the Master and between Master and crew; and

2.     Implementing effective procedural controls to eliminate or minimise the risk of water accumulating to unsafe levels in the fish room, including by installing alarms to warn crew of high water levels in the fish room; and

3.     Verifying that drills (including the “Abandon Ship” procedure) were routinely undertaken to check the practicality of the emergency escape routes.

The installation of high water level alarms would likely have prevented the sinking and crew deaths.

3 At [2].

District Court decision

[4]                 The Judge’s decision of 16 September 2020 was carefully reasoned. He held there were 19 individuals entitled to reparation as parents, siblings, partners and children, but he excluded four children who had been estranged.

[5]                 There had been an issue as to whether reparation should be awarded on an individual basis or in bulk per family. The Judge awarded reparation on an individual basis. He did so because it is individuals who are to be compensated. He cited s 32  of the Sentencing Act 2002, which refers to the “person who suffered emotional harm” rather than to a family or other group. The Judge thought distribution in bulk could lead to disputes and there could be inequity between members of different families because of the differing numbers of victims in each family. He nevertheless recognised that courts often award similar amounts to victims who had the same relationship to a deceased, particularly where the apparent levels of emotional harm between victims and their relationship with the deceased were similar.

[6]                 The Judge rejected the submission that he should award an equal amount of between $90,000 and $100,000 to each family.

[7]He cited WorkSafe New Zealand v Department of Corrections:4

The task of setting reparation for emotional harm in a case such as this, does not simply involve ordering the same amount given in other cases involving a fatality. Each case must be judged on its particular circumstances. While certain cases may give a broad indication of an appropriate figure, it is unhelpful to pick apart those decisions and try to pair particular features with a particular level of reparation. There is not and cannot be a tariff for the loss of life or grief.

[8]                 For the partner and children of each of the deceased, the Judge ordered reparation of $40,000 each.

[9]                 For the two surviving parents of one of the deceased and the mother of another deceased, the Judge ordered reparation of $10,000 each.

4      At [22], citing WorkSafe New Zealand v Department of Corrections [2016] NZDC 24865, [2017] DCR 368 at [25].

[10]              Two siblings of one of the deceased provided victim impact statements. The Judge ordered reparation of $10,000 for each.

[11]              For another sibling of that deceased who had not provided a victim impact statement and two siblings of another deceased who had also not provided victim impact statements, the Judge ordered reparation of $5,000 each.

[12]The total award of reparation for emotional harm was $505,000.

[13]              The Judge issued a minute dated 9 February 2021 acknowledging he erred in his inference that the sister of one of the deceased did not wish to receive reparation. The Judge said, had he not erred, he would have ordered she be paid $5,000 reparation for emotional harm. He said he did not have jurisdiction to correct that error.

[14]              The Judge also dealt with the claims made by some of the victims for loss of income as a result of the death of their partner or father. Those aspects of his decision are not subject to appeal so I do not detail them further except to mention the conclusion the Judge came to.

[15]              Actual amounts awarded had been agreed to by the parties once they had been advised of the approach the Judge was going to take in awarding reparation for economic loss. The total sum was $230,325.25, to be paid as follows:

The partner of one of the deceased        $54,908.56 Three of a deceased’s children  $5,477.61

$30,270.96

$54,908.56

The partner of another deceased            $52,414.61 A child of that deceased  $32,344.95

[16]              The Judge ordered reparation of $2,000 to a child for travel costs she incurred in returning to New Zealand for her father’s funeral.

[17]              The Judge then moved to the next step of determining the fine, with regard to the guideline judgment of the full Court in Hanham & Philp Contractors Ltd.5

[18]              He began by assessing the culpability of Ocean Fisheries. He noted that counsel for Ocean Fisheries had accepted “the installation of appropriate detectors and alarms would likely have prevented the sinking and loss of life” and said the “defendant also accepts that the installation of such a system would not have been difficult or costly”.6 He accepted that it had not been industry practice to fit such a system in vessels operating in the circumstances of the Jubilee, and this was a relevant consideration when assessing culpability. He said there was no suggestion that Ocean Fisheries deliberately took unacceptable risks or breached any regulations. He said, rather, Ocean Fisheries’ failures were the result of insufficient care to ensure that all appropriate safety measures were taken.7

[19]              The Judge regarded the culpability in this case as just over the middle of the medium band in Hanham & Philp. He arrived at a starting point fine of $80,000. It was agreed there were no personal aggravating factors relating to Ocean Fisheries that warranted an uplift.

[20]              The Judge allowed a credit of 10 per cent for the way Ocean Fisheries had cooperated fully with the investigation conducted by Maritime NZ and the way it had taken appropriate steps to improve all aspects of its operation which were the subject of the prosecution. He considered a further reduction was appropriate to recognise the payment of the very substantial reparation he was ordering and the practical and emotional support Mr Stark, the sole director and CEO of Ocean Fisheries, and his wife had provided to the families of the three crew members. When the Police called off their search for the vessel, they continued with a private search. They gave each family $5,000 cash in case joint bank accounts had been frozen and, in the two weeks following the accident, gave each family a further $15,000. In their victim impact statements, some family members had also praised Mr Stark for maintaining contact with them and keeping them informed throughout the long passage of the case through

5      Department of Labour v Hanham & Philp Contractors Ltd (2008) 6 NZELR 79.

6      Maritime New Zealand v Ocean Fisheries Limited, above n 2, at [68].

7 At [74].

the court. For this combination of reparation and remorse, the Judge reduced the fine by 15 per cent.

[21]              A guilty plea had not been entered until three and a half years after the proceedings began. The Judge noted various pre-trial applications that had been pursued. Having regard to the entire history of the proceedings, the Judge reduced the fine by 17.5 per cent to recognise the guilty plea. Overall, the fine was reduced by

42.5 per cent on account of mitigating factors so as to end at $46,000.

[22]The Judge then said:

[89]    The final step in the process established in Hanham & Philp involves a consideration of the total imposition on the defendant of the orders for reparation and the fine. The total penalty imposed must be proportionate to the circumstances of the offending and of the offender. In this case, the total penalty is $783,325.25, the very large majority of which is for reparation. Given that the reparation relates to 19 people who, in each case, lost a close family member and the fine adds relatively little to it, I consider the total is appropriate.  There is no issue about the ability to pay the amounts involved. I am told the reparation will be met by insurance and I understand that the basis for resolution reached earlier this year includes an undertaking by the Stark family to meet the fine.

Principles on appeal

[23]              Appeals against sentence are allowed as of right by s 244 of the Criminal Procedure Act 2011 and must be determined in accordance with s 250 of that Act. An appeal against sentence may only be allowed by this Court if it is satisfied there has been an error in the imposition of the sentence and that a different sentence should be imposed.8 As the Court of Appeal mentioned in Tutakangahau v R, quoting the lower court’s decision, a “court will not intervene where the sentence is within the range that can properly be justified by accepted sentencing principles”.9 It is only appropriate for this Court to intervene and substitute its own views if the sentence being appealed is “manifestly excessive” and not justified by the relevant sentencing principles.10

8      Criminal Procedure Act 2011, ss 250(2) and 250(3).

9      Tutakangahau v R [2014] NZCA 279, [2014] 3 NZLR 482 at [36].

10     Ripia v R [2011] NZCA 101 at [15].

Approach to sentencing

[24]              The three-step sentencing process for health and safety offending was set out by a full bench of the High Court in Hanham & Philp Contractors:11

(a)       Assess the amount of reparation;

(b)       Fix the amount of the fine; and

(c)       Make an overall assessment of the proportionality and appropriateness of the total sentence.

Grounds of appeal

[25]              Ocean Fisheries do not appeal the orders for reparation for consequential loss or the fine imposed. The appeal relates only to the amount of reparation for emotional harm.

[26]As to this, Ocean Fisheries raised the following grounds of appeal:

(a)       the emotional harm award is disproportionate to the appellant’s culpability;

(b)       both the methodology for calculation and the amount of emotional harm reparation are inconsistent with comparable cases;

(c)       the Judge erred in failing to reduce the level of emotional harm payment to reflect the $60,000 already paid by OFL to the families; and

(d)       the Judge erred in ordering reparation to the son of one of the deceased and two sons of another deceased where the Court did not have victim impact statements.

[27]              Mr Eaton QC submitted that total emotional harm reparation should be between $270,000 and $300,000.

11     Department of Labour v Hanham & Philp Contractors Ltd, above n 5, at [80].

[28]              Maritime NZ raised the further sister’s entitlement to reparation as a ground of appeal.

Culpability / Causation

[29]              Mr Eaton submitted reparation ought to be proportionate to Ocean Fisheries’ level of culpability. He linked culpability with causation and pointed out that causation is required for a sentence of reparation. He submitted that direct and strong causation justified a higher award of emotional harm. He referred to Idea Services Ltd and Ritchies Transport to support this proposition.12

[30]              Mr Eaton referred to cases where no reparation was ordered because there was no causative link between a defendant’s failures and the consequent injury or death,13 and a case where the Court apportioned liability for reparation between multiple defendants to reflect different levels of culpability.14 He submitted these cases support the proposition that culpability is relevant to fixing the quantum of emotional harm reparation.

[31]              Mr Eaton submitted the only causative failing was the failure to install alarms to warn crew members of high-water levels in the fish room. He then submitted this was not industry practice and, in any event, its causative link was speculative. He assessed culpability and causation as low and argued that should reduce reparation.

[32]              Mr La Hood, for Maritime NZ, submitted that culpability and causation are not generally relevant to setting reparation. He argued reparation is compensatory rather than punitive. He said culpability goes to the appropriate fine rather than the appropriate level of compensation. He submitted this was the approach of the High Court in both Hanham & Philp and Stumpmaster.15

[33]Mr La Hood submitted culpability can only be relevant in one of two ways:

12     WorkSafe New Zealand v Idea Services Ltd [2015] NZDC 3696, [2015] DCR 210; and WorkSafe New Zealand v Ritchies Transport Holdings Ltd [2019] NZDC 18495.

13     WorkSafe New Zealand v New Zealand Defence Force [2020] NZDC 21437; and Civil Aviation Authority v Helicopter Line Ltd [2018] NZDC 3559, [2018] DCR 551.

14     WorkSafe New Zealand v Alderson Poultry Transport Ltd [2019] NZDC 25090.

15     Department of Labour v Hanham & Philp Contractors Ltd, above n 5; and Stumpmaster v WorkSafe New Zealand [2018] NZHC 2020, [2018] 3 NZLR 881.

(a)       it could be an indicator of specific emotional harm; or

(b)       it could assist in apportioning reparation between multiple defendants.

[34]              Mr La Hood argued Ocean Fisheries wrongly conflates culpability with the causative link between offending and harm. He also submitted it was not open to the appellant to argue it was “speculative” that the high-water alarm would have meant the crew could have safely escaped. That was contained in the summary of facts, which the appellant had accepted. He pointed out the appellant had already conceded this point by acknowledging that, under s 32 of the Sentencing Act, the Court could impose a sentence of reparation.

Discussion

1. Section 32 of the Sentencing Act states:

   32   Sentence of reparation

   (1)   A court may impose a sentence of reparation if an offender has, through or by means of an offence of which the offender is convicted, caused a person to suffer—

(a)loss of or damage to property; or

(b)emotional harm; or

(c)loss or damage consequential on any emotional or physical harm or loss of, or damage to, property.

(2)   Despite subsection (1), a court must not impose a sentence of reparation in respect of emotional harm, or loss or damage consequential on emotional harm, unless the person who suffered the emotional harm is a person described in paragraph (a) of the definition of victim in section 4.

…

[36]“Victim” is relevantly defined as:16

victim—

(a)   means—

(i)a person against whom an offence is committed by another person; and

16     Sentencing Act 2002, s 4.

(ii)a person who, through, or by means of, an offence committed by another person, suffers physical injury, or loss of, or damage to, property; and

(iii)a parent or legal guardian of a child, or of a young person, who falls within subparagraph (i) or subparagraph (ii), unless that parent or guardian is charged with the commission of, or convicted or found guilty of, or pleads guilty to, the offence concerned; and

(iv)a member of the immediate family of a person who, as a result of an offence committed by another person, dies or is incapable, unless that member is charged with the commission of, or convicted or found guilty of, or pleads guilty to, the offence concerned …

[37]For the purposes of paragraph (a)(iv), “immediate family” is defined as:17

immediate family, in relation to a victim,—

(a)   means a member of the victim’s family, whanau, or other culturally recognised family group, who is in a close relationship with the victim at the time of the offence; and

(b)   to avoid doubt, includes a person who is—

(i)the victim’s spouse, civil union partner, or de facto partner; or

(ii)the victim’s child or stepchild; or

(iii)the victim’s brother or sister or step-brother or step-sister; or

(iv)a parent or step-parent of the victim; or

(v)a grandparent of the victim

[38]              Courts must make an order for reparation where an offender has caused one of the forms of harm set out in s 32(1). That is made clear by s 12:

12     Reparation

(1)      If a court is lawfully entitled under Part 2 to impose a sentence or order of reparation, it must impose it unless it is satisfied that the sentence or order would result in undue hardship for the offender or the dependants of the offender, or that any other special circumstances would make it inappropriate.

(1A) When considering undue hardship or other special circumstances under subsection (1), a court must not take into account that the offender is required to pay a levy under section 105B.

(2)      A sentence of reparation may be imposed, in relation to any particular offence, on its own or in addition to any other sentence.

17     Sentencing Act, s 4.

(3)      If a court does not impose a sentence or order of reparation in a case where it is lawfully entitled to do so, it must give reasons for not doing so.

(4)      In this section, order of reparation means an order under section 106(3)(b), 108(2)(b), or 110(3)(b).

[39]              Ocean Fisheries accept that, in terms of s 32(1), reparation for emotional harm had to be ordered. It accordingly accepted, and still accepts, that the offence of which it was convicted caused people, who came within the definition of victims in the Sentencing Act, emotional harm through the death of one of their family.

[40]              I do not accept the submission that it was “entirely speculative” as to whether, if an alarm had sounded, the three crew members would have been able to take steps to safely escape the sinking vessel.

[41]The summary of facts said:

The precise cause of the vessel sinking is unknown. However, in the absence of any evidence of a catastrophic event, it can be inferred that the cause of the vessel sinking was gradual ingress of water into the fish room, which affected the vessel’s stability, eventually causing the vessel to sink by the stern.

[42]              The agreed summary of facts referred to the three crew members bodies being located in the wheelhouse, of it being inferred they must have all been asleep as the fishroom gradually flooded and they awoke too late to escape.

[43]              Ocean Fisheries argued the Judge had recognised that culpability was relevant in fixing the appropriate level of reparation but failed to carry that assessment through to the reparation quantification.

[44]              In his sentencing remarks, Judge Couch referred to a statement from Powell J in the High Court in McKee v WorkSafe New Zealand.18 There, Powell J discussed the way in which reparation for consequential financial loss was to be calculated. Powell J said:

[21] Similarly, in relation to high income earners, while the loss to a particular victim may in fact be considerable the Court clearly retains a discretion as to whether to order the full amount of consequential loss not only

18     McKee v WorkSafe New Zealand [2020] NZHC 1002.

because of the various factors noted in Oceana, but also because it maybe inappropriate and/or unreasonable in terms of the totality of the offending for which the defendant is being sentenced.

[45]Judge Couch went on to say:

[47]      On this basis, Powell J concluded that it was wrong to calculate reparation on any basis other than her actual pre-accident earnings and that the District Court Judge was wrong to have used an inflated figure.

[48]      The same principles should be applied in this case. It is the actual pre- accident earnings of the deceased which are to be taken into account when calculating reparation for the statutory shortfall in earnings related compensation paid to victims. Once those calculations are done, there remains a discretion whether the whole of that amount should be ordered but that is a matter for consideration at the end of the sentencing process where the overall penalty of reparation and fine must be reviewed in light of the defendant’s culpability and ability to pay.

[46]              The comments of both Powell J and Judge Couch as to the residual discretion available to the Court were related to the awards of reparation for consequential loss, not emotional harm. In any event, here, the Judge did consider the overall impact of both reparation and a fine at the third stage of the sentencing process. He concluded that in the context of an offence that caused the death of three men and reparation was for 19 people, the total penalty was proportionate to the circumstances of the offending.19

[47]              Ocean Fisheries did not seek to advance their appeal on the basis that the total amount of the reparation and fine was not proportionate to the circumstances of the offending and the offender.

[48]              As counsel referred to, there have been cases where the courts have refused to make orders for reparation because defendants have not been culpable in a way that contributed to a death or injury.20

[49]              The lack of causation was relevant not to the level of reparation that ought to be paid but to the threshold for the making of any reparation order as referred to in s 32(1).

19     See para [22] above.

20     WorkSafe New Zealand v New Zealand Defence Force, above n 13; and Civil Aviation Authority v Helicopter Line Ltd, above n 13.

[50]              Mr Eaton referred to the judgment in Idea Services Ltd as a case which indicated culpability had been of relevance in assessing reparation.21 I accept the Judge in that case did proceed on that basis.

[51]              There, a young man had died while in the care of an IHC service provider, drowning after being left alone in a bath. A risk assessment had confirmed he required full assistance with washing and drying, required supervision and could not be left alone. Operational policies required a person to always be present when bathing.

[52]              Consistent with the Hanham & Philp approach, the Judge first considered reparation.22 In that context, she discussed the circumstances of the death before concluding:

[75]   In my view there is high culpability in this case particularly because  of [the deceased’s] vulnerability and special needs as well as the nature of the services being provided to him by the defendant company. In my view reparation needs to be at, or near the top of the range.

[53]              Some support for the Ocean Fisheries argument could have been gleaned from a footnote to Thomas J’s judgment in the High Court in Nino’s Ltd v Maritime New Zealand.23 There, Thomas J said “there is no indication that Parliament intended judges to undertake some sort of critical analysis of the harm claimed to have been suffered by a victim”. But, in the footnote:

Of course, victim impact statements need to be considered as against the facts of the offending and there might be cases where the claimed emotional harm could be considered disproportionate to the offending. That would not have the effect of reducing the emotional harm but might affect the weight the Court gives to it.

[54]              Despite what was said in the District Court in Idea Services Ltd, I do not accept the degree of culpability of the offending should impact on the assessment of appropriate reparation. As was stated by the full Court in Hanham & Philp:24

[33]  Reparation is compensatory in nature and is designed to recompense  an individual or family for loss, harm or damage resulting from the offending. On the other hand, a fine is essentially punitive in nature, involving the

21     WorkSafe New Zealand v Idea Services Ltd, above n 12.

22 At [51].

23     Nino’s Ltd v Maritime New Zealand [2020] NZHC 1467, (2020) 17 NZELR 483.

24     Department of Labour v Hanham & Philp Contractors Ltd, above n 5.

imposition of a pecuniary penalty imposed by and for the state. A fine is intended to serve the statutory purposes of denunciation, deterrence and accountability. Each requires separate attention in the sentencing process.

[55]              The full Court said the assessment of reparation required a consideration of the statutory framework, taking into account any offer of amends and the financial capacity of the offender. They did not refer to the culpability for the offending or the degree to which the offending was causative of the loss as matters within the statutory framework which it had mentioned. The statutory framework which the Court referred to included ss 32 to 38 of the Sentencing Act, of which they said s 32 was the most relevant. They also referred to s 14 of the Sentencing Act and s 51A(2)(b) of the Health and Safety in Employment Act 1992, and ss 35 and 40 of the Sentencing Act. These referred to the financial capacity of the offender as being relevant to the fixing of reparation and fines.

[56]              There was no suggestion from the full Court in Hanham & Philp that, once it was accepted a death or injury resulted from the offending, the extent to which the offending caused the loss would be relevant in assessing the level of reparation.

[57]              It was in relation to the second step and the fixing of a starting point for the fine that the High Court, in line with the Taueki approach to sentencing, said there had to be an assessment of the culpability for the offending.25

[58]              In Stumpmaster v WorkSafe New Zealand, a full High Court revisited the Hanham & Philp approach to sentencing in light of the Health and Safety at Work Act 2015.26 In their approach, the assessment of the amount of reparation was still to be distinct from the fixing of the fine. It was in relation to the latter that the Court is to have regard to aggravating and mitigating factors of the offending.

[59]              In R v Donaldson, the Court of Appeal discussed how s 32(1) was to be approached.27 The Court said:

25     Department of Labour v Hanham & Philp Contractors Ltd, above n 5, at [54], [55] and [80].

26     Stumpmaster v WorkSafe New Zealand, above n 15.

27     R v Donaldson CA227/06, 2 October 2006.

[33]   For all that we do not see the use of “caused” in s 32 as dictating a change in approach. The words “through or by means of an offence” remain and provide the controlling concept.

[34]   In terms of the approach to this concept it is important to recognise the nature of a reparation order, as compared to a fine, and the interrelationship of the two. A fine is punitive. It is a pecuniary penalty imposed by and payable to the state. By contrast, an order for reparation is compensatory in nature. Reparation is intended, wherever possible, to restore the victim’s position in relation to property loss or damage, emotional harm, or consequential losses.

[60]              The Court referred to various provisions in the Sentencing Act that limit awards of reparation but they emphasised that a sentence of reparation is compensatory in nature. They said “we endorse the viewpoint that reparation is to be approached in a broad common-sense way, and resort to refined causation arguments is not to be encouraged”.28

[61]              Maritime NZ submitted an offender’s culpability is relevant to the assessment of reparation in only two specific situations. The first was where factors which heightened the offender’s culpability, breaching known and explicit duties, made the emotional harm to the victims all the greater because of their awareness that the risks were known and avoidable. Maritime NZ submitted Idea Services was an example of this.29

[62]              In Idea Services, the Judge referred to the high level of culpability as a factor which she had considered in assessing reparation. I do not consider the Judge’s rationale for doing this was as suggested for Maritime NZ.

[63]              It could be said an example of the rationale for an increased reparation award, as adverted to by Maritime NZ, was WorkSafe New Zealand v Department of Corrections.30 There, the Department was being sentenced following the death of an offender who was killed when struck by a log while under the supervision of the Department on a community work sentence. In assessing reparation, the Judge said she considered the case different from others because Corrections had placed the

28 At [36].

29     WorkSafe New Zealand v Idea Services Ltd, above n 12.

30     WorkSafe New Zealand v Department of Corrections, above n 4.

offender in the situation where the death occurred and had a statutory responsibility and ability to ensure how work in that situation was undertaken.

[64]              I do not consider this was logically a reason for increasing the amount of reparation award above what would be appropriate in other cases where a person is killed in the workplace where the deceased, their family and loved ones would have had an expectation that workers would be safe at their workplace and employers would comply with all their obligations under the Health and Safety in Employment legislation.

[65]              If reparation awards were to be increased on the basis referred to in Department of Corrections, awards would be higher with increased culpability. If that is to be a reason for an increased reparation award, logically awards should be less if culpability is lower. However, I consider a breach of duties and a failure to meet expectations in the sort of circumstances that existed in Department of Corrections should more appropriately be considered in assessing the degree of culpability of the offending at the second stage of the sentencing process, and thus the starting point for a fine, rather than the amount to be paid in reparation. That is more consistent with the approach in the leading cases of Stumpmaster, Hanham & Philp and Donaldson.

[66]              Consistent with that approach, I note that Judges have not had regard to such expectations of safe supervision and the culpability of the offending in assessing reparation in somewhat comparable cases.31

[67]              Maritime NZ submitted the other circumstances in which the level of culpability and the degree to which an offender’s culpability had contributed to the death or injury could be relevant in assessing reparation was when there were several offenders before the court and the appropriate reparation had to be apportioned between them.

31 Ministry of Business, Innovation and Employment v Taranaki Outdoor Pursuits and Educational Centre Trust DC New Plymouth CRI-2013-043-000271, 23 October 2013; and R v New Zealand School of Outdoor Studies Ltd [2016] NZDC 3081.

[68]In Ritchies Transport, the sentencing Judge said:32

I accept that an offender’s culpability can, in some circumstances be a factor in determining reparation. Degrees of culpability may be a relevant consideration when reparation can be apportioned between identified offenders at sentencing. Where there are two or more defendants, the total amount of reparation is frequently apportioned between defendants according to their culpability for the harm sustained.

[69]              The Judge went on to say that the non-prosecuted driver’s culpability was not a consideration in setting the level of reparation at this step in the process. The Judge referred to Stumpmaster clearly stating culpability was a factor for consideration in determining the level of fine.33

[70]              I accept that the degree of culpability and responsibility for the death that occurred may be relevant in considering and deciding how the appropriate reparation should be apportioned between several offenders who are before the Court and liable to pay reparation.34 However, in such a situation, the quantum of reparation required to recognise the emotional harm done to a victim is not assessed according to the degree of culpability. The level of compensation is fixed in recognition of the harm caused. Culpability is relevant only to the way payment of the appropriate compensation is apportioned between co-defendants.

[71]              A death or an injury for which reparation for emotional harm must be ordered may occur in certain circumstances where the particular circumstances of the offending causes particular harm to a victim.35

[72]              In WorkSafe New Zealand v Alderson Poultry Transport Ltd the deceased was run over by a forklift in the workplace in front of her husband who also worked there. A death in such a situation could logically and rationally lead to a higher award for

32    WorkSafe New Zealand v Ritchies Transport Holdings Ltd, above n 12, citing R v Leslie Lewis

CA7/98, 17 June 1998 (footnotes omitted).

33 At [47].

34   Consistent with the decision in WorkSafe New Zealand v Alderson Poultry Transport Ltd, above n 14; see also Simon France (ed) Adams on Criminal Law: Sentencing (online loose-leaf ed, Thomson Reuters) at SA.11.

35 WorkSafe New Zealand v Alderson Poultry Transport Ltd, above n 14. See also McKee v WorkSafe New Zealand, above n 18.

reparation but that would not be because of a greater degree of culpability or because the offending was more causative of the injury or death.

[73]              I find that, at the first stage of the sentencing process, once it has been established that an offender has, through or by means of an office of which the offender is convicted, caused a person to suffer loss of the sort for which reparation might be ordered, the culpability of the offender and the extent to which the offending caused the relevant harm or loss will not be relevant to the assessment of quantum.

[74]              I accordingly do not accept the submission that, in the first step of the sentencing process for this offence, the Judge should have modified what he would otherwise have found to be an appropriate level of reparation by reason of either his assessment as to the culpability of the offending or because that offending was not the sole cause of the deaths of the crew members for which the victims were entitled to compensation.

Inconsistency with comparable cases of the methodology adopted for calculation of emotional harm reparation

[75]              Judges in the District Court and High Court have, on a number of occasions, apportioned a total award of reparation between various family members in differing amounts. From my reading of the workplace fatality cases, this is the first occasion either Court has been asked to award emotional harm reparation by reference to what the Court considers appropriate for individual victims rather than by calculating the total that should be awarded. The issue on appeal is whether there was any error in the Judge’s approach to awarding reparation.

[76]              The first step in the sentencing process is to decide if there are victims of the offending who are entitled to compensation and to fix and award the reparation to which they are entitled. The entitlement to reparation has primacy in the sentencing process so the level of reparation to be paid will impact on the level of any fine that is to be imposed. That is an incidental consequence of the awarding of reparation, not the purpose of the reparation award.

[77]              The awards of emotional harm reparation made in the District Court can be analysed in different ways:

(a)       total award $505,000;

(b)       on a per family basis:

(i)$185,000 was awarded to one deceased’s partner, three children, both his parents and a sibling;

(ii)$160,000 was awarded to another deceased’s partner and three children;

(iii)$160,000 was awarded to another deceased’s three children, mother and four siblings; and

(c)by relationship, partners $40,000 each, children $40,000 each, parents

$10,000  each,  siblings  who  had  provided  victim  impact  statements

$10,000 each, siblings who had not provided victim impact statements

$5,000 each.

[78]              The Judge said he had analysed six District Court decisions where reparation for emotional harm was awarded to individual family members. He said that in another six cases decided in the District Court reparation was ordered “in bulk” to the family.

[79]              The Judge arrived at what he considered to be appropriate reparation by deciding what reparation was appropriate for individual victims, but with victims in broadly similar circumstances and of the same relationship to the deceased being treated the same.

[80]              Having assessed the reparation payable in this way, the Judge did not then total the awards on a per family basis and consider whether those totals were appropriate, having regard to total awards of reparation on a per family basis in other cases. It had not been suggested for Maritime NZ that he needed to.

[81]              The Judge expressly rejected the submission from Ocean Fisheries that the award should have been between $90,000 and $100,000 for each family, such amount to be split equally between the members of the family.

[82]              The Judge said this would result in an inequity in that those in the smaller families would receive less than those in larger families although the deaths for which they were to be paid reparation for emotional harm had occurred in identical circumstances when the victims relationship to the deceased were similar.

[83]              The Judge also said his “overall perception of the trend in sentencing in this area is that references to a bulk amount of reparation in most cases are largely to provide clarity in the sentencing process by making it easier to assess the size of fine to be imposed”.

[84]              In summary, Ocean Fisheries’ criticisms of the awards of reparation in this case were:

(a)       the awards were separately or in total for amounts that were not consistent with reparation for emotional harm awarded in other cases;

(b)       individual awards were calculated effectively on a tariff rate based on the nature of the familial relationship; and

(c)       for consistency with the pattern of other cases, reparation should be ordered only for the closest immediate family. The Court should identify the total amount of reparation to be made under s 32 of the Sentencing Act before deciding how that reparation should be apportioned between different family members;

(d)       reparation should not be awarded for emotional harm in respect of every immediate relative without an evidential basis;

(e)       reparation should have been awarded on a family basis for distribution either according to the wishes of the families themselves or, if agreement between family members is not feasible, to the same family members of

each crew member in the same manner as the District Court decision on a pro rata basis.

[85]              Ocean Fisheries referred to s 8 of the Sentencing Act and the direction from the Supreme Court in Hessell v R for Judges to take into account sentencing outcomes to reflect the policy of like treatment for similar offending in similar circumstances.36

[86]Ocean Fisheries submitted:

(a)       the methodology employed by the Judge here to determine the amount of reparation was not consistent with other cases.

(b)       the Judge had started from the position there were 19 surviving victims entitled to consideration for reparation. The Judge then went on to calculate individual awards on what they submit was effectively a tariff rate based on the nature of the familial relationship. The total was determined by adding all the individual awards together.

(c)       the Judge was in error in not considering the total amount of reparation to be paid. The correct approach, consistent with that taken in other cases, is to first identify the range of reparation amounts that have been awarded for emotional harm in similar case and then to determine the appropriate amount of reparation to be paid for the harm caused in the particular case. With this approach, the sentences of reparation for emotional harm would remain consistent with the range of sentences imposed in other cases. Differing approaches to allocating emotional harm reparation between family members might be equally valid but that assessment ought to occur once the Court had already identified the amount of reparation to be made under s 32 of the Sentencing Act.

(d)       Accordingly, the Judge should have arrived at a figure comparable to that adopted in other cases for each family of the deceased and then allocated that sum between the individuals in the family as the Judge, on a broad based approach, determined was appropriate.

36     Sentencing Act, s 8E; Hessell v R [2010] NZSC 135, [2011] 1 NZLR 607, at [43].

(e)       the Judge was in error in the way he had analysed District Court decisions where he had said there had been awards of reparation to individual family members. In all instances, the District Court nevertheless determined the total reparation which was to be paid. This was done in a way which achieved consistency with other reparation orders and it was only after the Court had assessed appropriate total reparation that the Judges decided, when in the circumstances of the particular case this was necessary, how that total reparation was to be apportioned. In all cases, the approach of the District Court was thus to assess reparation on a per family basis, rather than simply assessing reparation on an individual basis. It was through adopting the latter approach that the Court arrived at an amount for total reparation which was inconsistent with reparation awards in other cases.

(f)        The approach of all cases, in both the District Court and High Court, had been to consider the overall amount of reparation that should be imposed for emotional harm and for the Court to then take into account particular facts and variables or case-specific factors when making the final determination.

[87]              In its memorandum for sentencing in the District Court, Maritime NZ had said it was submitting that Ocean Fisheries should pay emotional harm reparation totalling

$530,000. It submitted that “reparation in the range of $100,000 to $200,000 (total) is typically awarded to the surviving family of a worker killed while at work” but submitted it would not be appropriate to award a single lump sum for each of the deceased’s families to be divided between the family members. They submitted the crew members had a variety of family structures and were survived by different numbers of immediate family members. Reparation had to be fairly apportioned. Maritime NZ argued that emotional harm reparation of $40,000 should be awarded for each spouse and each child of a deceased crew member with $10,000 emotional harm reparation for other immediate family members.

[88]              Maritime NZ submitted the Judge did not ignore the desirability of consistency in first arriving at making individual awards. They argued that the Judge had implicitly considered awards in similar cases for victims in similar relationships to the

deceased. They submitted where the defendant’s offending has multiple victims the offending has created greater harm. Greater harm requires greater reparation. They submitted this is the scheme of ss 12 and 32 of the Sentencing Act. To illustrate, they referred to reparation that would be required from a dangerous driver who collided with a vehicle carrying three passengers. In accordance with the principles of the Sentencing Act, they said such an offender would be required to pay more in reparation than a similarly dangerous driver who had collided with an empty parked car.

[89]              Maritime NZ submitted there is no basis in either law or logic to impose an artificial cap on the end reparation available for an individual victim in the way Ocean Fisheries suggest is necessary. Emotional harm does not diffuse within a family unit. The harm for which reparation is to be paid is not less within a smaller family than it is for an individual within a larger family.

[90]              They argued the approach the Judge adopted in this case, while different from that adopted in many other case, nevertheless did recognise a need for consistency. They also argued it was appropriate in what they said were the relatively unusual circumstances of the case where there were three deaths and a complex web of family relationships which meant the statutory class of victims was large.

My analysis

[91]              Ocean Fisheries put before me 31 sentencing decisions or judgments, mostly from the District Court, where Judges were having to order reparation for emotional harm where death had resulted from work place accidents where employers were found to have offended against workplace safety legislation.37 I have read all those judgments. In nearly every instance, the sentencing Judge referred to the total amount awarded for emotional harm reparation in other cases, or as referred to by counsel, in deciding what reparation should be awarded in the case they were dealing with. It was also clear that, in nearly all those cases, the informant, usually WorkSafe New Zealand, had asked for total reparation at a certain figure with reference to the total awards of reparation in other cases. The informant had thus sought awards that in total were consistent with other cases.

37     Health and Safety at Work Act 2015; and Health and Safety in Employment Act 1992.

[92]              The approach contended for by Ocean Fisheries might be seen to have some practical advantages. Many employers, as here, will be insured for any liability they might have through a reparation order. The award of reparation on a per family basis would make it easier for an insurer to calculate the potential liability they and the insured might have arising out of a potential workplace fatality at the business they are insuring. It would also make it easier for informants such as Maritime NZ or WorkSafe to assess what would likely be an appropriate award for reparation arising as a result of an offence that results in a workplace death.

[93]              The Sentencing Act recognises the value of an offender taking responsibility for the harm that results from an offence and an acknowledgement of that harm, and to provide for the interests of the victim of an offence

[94]              The purposes of sentencing include promoting in the offender a sense of responsibility for and an acknowledgement of harm that results from an offence,38 providing for the interests of the victim of an offence,39 and to provide reparation for harm done by the offending. The principles of sentencing otherwise require the Court to take into account any outcomes of restorative justice processes that have occurred in relation to a particular case.40 Section 10 requires the Court to take into account any offer of amends and any agreement between the offender and the victim as to how the offender may remedy the loss or damage caused by the offender.

[95]              Through the Sentencing Act, Parliament recognised the value to victims of an agreement being reached over reparation that could be paid for emotional harm. Assessing reparation on a family basis, without the employer and informant having to put before the offender detailed information as to the circumstances of a deceased’s family, would make it easier for employers or their insurers to determine and potentially agree on what would be appropriate reparation.

[96]              The Sentencing Act however provides for a Court to order reparation for those who come within the definition of “victim” on an individual basis, without any cap on

38     Sentencing Act, s 7(1)(b).

39     Section 7(1)(c).

40     Section 8(j).

either the total amount that might be awarded for all individuals or for any group of individuals.41

[97]              As the Judge noted, s 32(1) provides for reparation to be paid where it has caused a person to suffer emotional loss. That person must come within the relevant definition of victim.

[98]              There is no express reference to the Court being able to impose a sentence of reparation for families or other groups. This does not mean that reparation for a person could not be provided for, as it often is, through an order that reparation be paid to a family but the assessment of appropriate reparation on a person-by-person basis is consistent with the wording of s 32(1) of the Sentencing Act.

41 In contrast to the provisions for reparation in the Sentencing Act, the Accident Compensation Act 2001 sets out a formula by which compensation can be provided to the family of a person killed or injured by accident. A surviving spouse or partner is entitled to compensation equivalent to 60 per cent of the earner’s entitlement, that is 80 per cent of the deceased earner’s pre-injury earnings. The compensation is payable until the latest of specified periods. A child of the deceased is entitled to compensation equivalent to 20 per cent of the earner’s 80 per cent entitlement, again for certain specified periods. The total compensation payable to family members of a deceased earner is capped at the earner’s entitlement. Because of the cap, compensation may have to be paid to family members on a pro rata basis. (See the discussion in Sarginson v Civil Aviation Authority [2020] NZHC 3199 at [155]-[161]).

The way the Sentencing Act allows for emotional harm reparation to be paid on an individual basis is also in contrast to the way overseas jurisdictions have provided for such compensation to be paid.

In the United Kingdom, the Law Commission in November 1999 considered possible legal reforms to allow bereavement damages for grief to be claimed in addition to damages for financial loss as the law in the UK permitted. In their report, they stated that “virtually every consultee to express a view on the matter agreed with out provisional view that distressing and distasteful litigation about whether a claimant is aggrieved should not be countenanced”. That led them to recommend that proof of actual loss (that is, actual mental distress) should continue not to be a necessary condition for an award of bereavement damages. For the same reason and because “there was strong concern about any enquiry into the existence or extent of an individual’s grief”, they recommended that the award of bereavement damages should continue to be a fixed sum. (Law Commission “Claims for wrongful Death” (UKLC 263, 1999).

In a number of comparable jurisdictions, including Australia and the United Kingdom, there is no comprehensive accident compensation scheme as New Zealand has with ACC. The ability to claim bereavement damages is governed by the common law, as modified by statute. At least in 2014, the majority of Australian states and territories continued to restrict recovery in cases of wrongful death to pecuniary loss. One of the reasons for that was the perceived problems inherent in determining who should be entitled to award and the terms on which it should be available. See Ian Field “in mourning of bereavement damages” (2014) 22 TLJ 95; and Law Reform Commission “Compensation to relatives” (NSWLRC 131, 2011) at 69. The UK and certain Australian states had established schemes for criminally caused death but with those schemes there is a statutory cap on the maximum amounts that might be awarded for either single claimants or on the amounts that might be awarded and the persons who might claim. See Professor Field’s article, pages 117 to 125.

[99]              In Sarginson v Civil Aviation Authority, Mander J in the High Court had to consider whether the District Court had been correct in calculating loss of earnings reparation from a starting point of 80 per cent of the deceased’s income because, under the ACC scheme, the surviving family’s compensation payments would have been based on 80 per cent of the deceased’s income.42 Mander J said:

[171] I do not consider the approach taken by the District Court to the calculation of the statutory shortfall is consistent with the wording and history of s 32(5) of the Sentencing Act, nor does it adequately reflect the status of spouses/partners and children of the deceased as victims in their own right.43

[100]          Here, in accordance with the submissions made by Maritime NZ, the Judge approached reparation in the way he did because of the particular circumstances of the case. One relevant matter he took into account was that, although the three deceased had all died in similar circumstances, their family circumstances were different. The Judge noted that, in many respects, the emotional harm those in the victims’ families suffered was the same but the number of victims in each family was different (eight in one instance, seven and four in the two others). Were an equal amount to be awarded to each family, as Ocean Fisheries suggested would be appropriate, this would be to equate the level of emotional harm suffered by each of the members of the largest family as being less than that of the members of the smallest family.

[101]          Ocean Fisheries seemed to acknowledge there could be inequity in this but submitted there would be a greater inequity if the total amount which Ocean Fisheries had to pay was significantly more than in other cases, simply because, with the particular circumstances and number of each deceased’s family, the amount to be paid in reparation had to be greater. They submitted that the approach adopted by the Judge resulted in “a more perverse inequity”.

[102]          I do not accept that the approach adopted in the District Court resulted in a “perverse inequity”. The Judge’s approach was consistent with the legislation.

[103]          I do not consider that, when the particular circumstances of a case require it, an award calculated on an individual basis will be unfair or an error simply because it

42     Sarginson v Civil Aviation Authority, above n 41.

43     Sentencing Act, s 4(1) definition of “victim”, para (a)(iv).

results in an award for all members of a family which is in excess of what, in comparison with other cases, they might have received on a per family basis. I do not accept that would inevitably result in an injustice. If an offender has the means to pay, this will often be through insurance and, as here, the offender is able to insure against such a liability. The total to be paid in reparation is to be taken into account when fixing the level of fine. If an offender does not have the financial means to pay what would otherwise be appropriate reparation and/or fine, one or both may have to be reduced.

[104]          I accept, as was submitted for Maritime NZ in the District Court, that, with the Court being concerned with three families with a variety of family structures and a different number of immediate family members, it was not appropriate to order reparation on a per family basis as suggested by Ocean Fisheries.

[105]          Accordingly, I do not consider that, in the particular circumstances of this case, the Judge was in error in the approach he took to the assessment of reparation. Neither the Sentencing Act nor case law required him to assess reparation first on a per family basis and to then apportion it between different family members.

[106]          This does not mean that a per family approach is necessarily going to be inappropriate. As mentioned, it has advantages and is compatible with relevant purposes and principles of the Sentencing Act. Through adopting that approach, it may well be easier to achieve consistency in end sentences and in the awards of reparation. Where a partner, parents and children have been bereaved, it may often be the best means of recognising the emotional harm that a family has suffered through the injury or death of a loved one. Although, it may be necessary and appropriate for a Judge to apportion the total amount for a family between individuals, that will not be required in all cases. In any event, there could well be benefits for a family in knowing that, however reparation is apportioned between members of that family, the payment is to recognise the emotional harm they have suffered as a family.

Alleged error in not ensuring that total sum to be paid in reparation was comparable with other awards in similar circumstances for similar offending

[107]          Ocean Fisheries attached to their submissions a table summarising 39 cases reviewed by counsel involving reparation for emotional harm following a workplace fatality. They said that awards between 2016 and 2020 were consistently between

$90,000 and $110,000 per family, as recognised in 2019 by the High Court.44

[108]          They argued higher awards reflected agreement between the parties, for example:

(a)       Department of Labour v Fletcher Concrete and Infrastructure -

$125,000;45 and

(b)       Department of Labour v Fonterra Cooperative Group Ltd - $116,000.46

[109]          Ocean Fisheries submitted that awards higher than that had been justified on the basis the Court had identified particular circumstances that had exacerbated the harm that had been suffered.47

[110]          They submitted the Judge here was in error in not identifying the particular circumstances that exacerbated the harm done to the victims to justify an award of reparation higher than for comparable cases. They also submitted he was in error in not identifying cases where the awards were comparable with what he had decided on.

[111]          Maritime NZ said the awards were consistent with lump sum payments in the order of $100,000 to $200,000 in respect of each of the deceased crew members.

44 Oceana Gold (New Zealand) Ltd v WorkSafe New Zealand [2019] NZHC 365, [2019] 3 NZLR 137 at [88].

45 Department of Labour v Fletcher Concrete and Infrastructure Ltd DC Nelson CRI-2009-042- 001043, 20 August 2009.

46 Department of Labour v Fonterra Cooperative Group Ltd DC Hawera CRI-2009-021-958, 20 January 2010.

47 Citing Department of Labour v Pike River Coal Ltd [2014] DCR 32; WorkSafe New Zealand v Alderson Poultry Transport Ltd, above n 14; New Zealand WorkSafe v Department of Corrections, above n 4.

Discussion

[112]          As I have already discussed, reparation for emotional harm is compensatory, not punitive.

[113]          Judges in the District Court and High Court have consistently recognised that calculating in monetary terms what is appropriate compensation for the death of a loved one is, in reality, an impossible task. All the Court can do is adopt a figure which, in a tangible way, recognises the grief and emotional harm that a close family member has suffered through the bereavement.

[114]In Big Tuff Pallets Ltd v Department of Labour, Harrison J said:48

Fixing an award for emotional harm is an intuitive exercise; its quantification defies finite calculation. The judicial objective is to strike a figure which is just in all the circumstances, and which in this context compensates for actual harm arising from the offence in the form of anguish, distress and mental suffering.

[115]          In WorkSafe New Zealand v Corboy Earthmovers Ltd, Judge Harland, as she was, said:49

[36]   Quantifying emotional loss is a difficult task. Whilst the purpose of it is to compensate, no price can be put on a life lost. As Judge Kiernan noted in Sir Edmund Hillary Outdoor Pursuits Centre of New Zealand:

“... it would be abhorrent to calculate in dollar terms the cost to each family of a loved one . . . reparation orders in other fatality cases are really of little assistance”

[37]   Despite this, there needs to be a principled approach to the awarding of reparation for emotional harm. As Ms Harrison identified, there is a wider public interest issue in this topic, as premiums for insurance are based on likely awards. As well, it is a principle under the Sentencing Act that a consistent approach is desirable when sentencing similar offenders for similar offending.

[116]          In R v Burr, Brown J referred to Judge Ronayne’s observation in Ministry of Business, Innovation and Employment v Watercare Services Ltd:50

48     Big Tuff Pallets Ltd v Department of Labour (2009) 7 NZELR 322 at [19].

49     WorkSafe New Zealand v Corboy Earthmovers Ltd [2016] NZDC 21982 (footnotes omitted).

50     R v Burr [2015] NZHC 2675, citing Ministry of Business Innovation & Employment v Watercare Services Ltd DC CRI-2011-004-21851, 20 September 2013, at [66].

… fixing amounts of reparation is, in no way, an attempt by the Court to place a monetary value on a tragically lost life ... That is an impossible task. Rather, it is the best that a Court can do within a statutory framework to recognise loss and emotional and physical harm by means of a monetary payment which may or may not ease the burden on those affected.

[117]          In Sargeant v Police, Hammond J discussed reparation for emotional harm under the Criminal Justice Act.51 He observed that the quantification of loss for emotional harm is “inherently intractable” and:

Empirically, what tends to happen in common law systems, whatever the compensatory or reparative system, is that courts slowly evolve conventional, and of course, arbitrary limits to subject matter that cannot be treated with anything approaching scientific precision.

[118]In R v Bishop, Gilbert J observed:52

It is obviously not possible to compensate for the emotional harm caused by the loss of a loved one by paying money. The best the Court can do is to fix an amount that is consistent with the sums awarded in broadly comparable cases to compensate for the anguish, distress and mental suffering caused.

[119]In WorkSafe New Zealand v Oropi Quarries Ltd, Judge Mabey QC noted:53

[22] There is no tariff judgment for the assessment of emotional haim to victims of offences, including where death has occurred. Nor could there be. A life cannot be assessed in monetary terms. The pain and suffering of those who have lost a loved one is immeasurable. However the Court is obliged to make an assessment. That assessment is fact specific but some assistance may be gained from other awards of emotional harm reparation.

[120]          Because it is impossible to quantify in monetary terms what might be appropriate compensation for the emotional harm caused by a bereavement, inevitably, calculating an appropriate award is somewhat arbitrary.

[121]          That arbitrariness is increased where the emphasis in the calculation process is on comparison with awards in other cases, rather than the individual circumstances of the victim. However, Parliament has already provided for emotional harm in a way that is arbitrary to a certain extent.

51     Sargeant v Police (1997) 15 CRNZ 454.

52     R v Bishop [2016] NZHC 494 at [13].

53     WorkSafe New Zealand v Oropi Quarries Ltd [2016] NZDC 10755, [2017] DCR 97.

[122]          Section 32(2) says a court must not impose a sentence of reparation in respect of emotional harm unless the person who suffered the emotional harm comes within the definition of victim in the Sentencing Act. Where, as a result of an offence a person has died, to be a victim, a person must be a member of the immediate family of the person who died. Excluded from that definition could be a fiancé or very close friend or colleague who was not a spouse or partner or otherwise a member of the deceased’s family, whanau or other culturally recognised family group.

[123]          In the absence of a statutory cap or statutory formula54 for the allocation of reparation for emotional harm for close family members, Judges have to rely heavily on awards that have been made in other cases to arrive at an appropriate reparation award for the particular case they have been concerned with. So, consistency with the range of awards commonly ordered has been an important consideration in fixing reparation, even when Judges have said that each case must be considered on its own facts.

[124]          In a number of the cases, Judges have recognised what they have been told by victims of how the victims have been affected by that bereavement. On a number of occasions, Judges have demonstrated how victims had been hurt by stating that awards in other cases can be of little relevance, that the particular case in front of them must be dealt with on its own facts and that there is no tariff for reparation for such emotional harm. The cases however demonstrate that, even when that is said, the parties base their submissions as to what might be appropriate on awards in other cases. Invariably, Judges refer to the range of awards in other cases or to the range of awards referred to in submissions.55

[125]          Because reparation for emotional harm from a bereavement cannot be calculated on an objective basis, the obtaining of a reparation report, provided for in s 33 of the Sentencing Act, to assist in fixing an appropriate award for emotional harm is unlikely to be of assistance to the victims or the sentencing Judge.

54     As there is for compensation under the Accident Compensation Legislation. See discussion in

Sarginson v Civil Aviation Authority, above n 41, at paras [155]-[161].

55     See Schedule A.

[126]          Section 17 of the Victims’ Rights Act 2002 obliges the prosecution to take all reasonable steps to gather information as to the emotional harm suffered by victims through, and by means of, the offence. But, victims should not necessarily have to detail all the ways they have been emotionally harmed by a bereavement as if the award that might be made will be determined by their descriptions as to the harm they have suffered, especially so if they do not want to do so.

[127]          The detailing of that harm can be an arduous process for the victims. The sentencing process may also provide little further relief to the victims where a Judge has detailed the emotional harm they have suffered but then has to say that no monetary award can compensate for the death of a loved one and that such a loss cannot be calculated in monetary terms.

[128]          Judges will, in whatever way they see fit, want to recognise what victims have said in their victim impact reports but with awards having to come within a range established by the cases, it may not be necessary for a sentencing Judge to traverse in detail the particular emotional impact an injury or death has had on a victim for whom reparation is to be paid. The way Judges in the High Court have discussed awards of reparation for emotional harm has been consistent with this.

[129]          Given the general acceptance that the calculation of a payment in monetary terms for death caused by a workplace offence is an abhorrent and impossible task, I consider there would be benefits in all parties and the Court recognising that the award is going to be determined largely, if not entirely, by what is commonly awarded for deaths from workplace offences under the relevant legislation.56

[130]          I mentioned earlier the benefits that could flow in terms of the principles and purposes of the Sentencing Act for reparation to be fixed on a per family basis. Those same benefits can be obtained through all concerned in the sentencing process recognising that the payment for reparation will, where there is financial capacity to pay it, be determined primarily with regard to the awards for death or injury from similar offending. The benchmark of awards in other comparable cases and the need

56     Health and Safety at Work Act.

for consistency will often be the most important factor in calculating the amount to be awarded.

[131]          Ocean Fisheries’ challenge as to the amount of the award in this case was primarily directed at the total reparation which had to be paid with the approach that the Judge took and his not fixing reparation on a per family basis. In their submissions, Maritime NZ did not analyse the award of reparation for individual family members in other cases to respond to this ground of appeal. They said the challenge was essentially to the methodology adopted by the Judge.

[132]          I have however considered whether there was an error in the Judge’s approach through his awards for individual members of each family being inconsistent with the range of awards for individuals in other cases.

Were the awards of reparation for emotional harm to victims on an individual basis so far beyond the range of what had been awarded in other cases for there to have been an error in the sentencing on that basis?

[133]          Ocean Fisheries have claimed that, on a per family basis, the awards were beyond the range of what had been awarded for families in other cases. I agree, especially if the Court disregards higher awards of reparation for emotional harm where the Judge increased the awards because of the more serious culpability associated with the offence, or where the award was based on an agreement negotiated between the parties. I have held however that it was appropriate, in the circumstances of this case, for reparation to be assessed on an individual basis.

[134]          Attached as schedule A is an analysis of awards in other cases of workplace offences where there has been a death. The analysis includes the 31 cases referred to by Ocean Fisheries in the submissions before me and the 16 cases they had referred to in the District Court, among others.

[135]A review of those cases yields the following conclusions:

(a)       On a per family basis, the range of total awards is $75,000 to $170,000 but, in recent years, there have been far more awards between $100,000 and $130,000. There has been a clear upwards drift.

(b)The range of  awards for a spouse has  varied  greatly,  from  $15,714  to

$100,000.   So too has the range of awards for a child, from $7,500 to

$125,000.

(c)       The awards for a parent or sibling have, in general, been less than those for a spouse or child. The range of awards for a parent is $5,000 to

$44,000, and for a sibling $4,000 to $125,000. The case where $125,000 was awarded to a sibling was however a notable outlier.57 If it is omitted, the range for a sibling is $4,000 to $39,000.58

[136]          On the basis of that analysis, the award in this case of $40,000 for emotional harm for a surviving partner was within the range for awards in other cases. So was the award of $40,000 for each child and $10,000 for each parent.

[137]          In many of the cases referred to, there was no award for siblings. Nevertheless, siblings come within the definition of victims as referred to in s 4(1) of the Sentencing Act. The global award of $100,000 for a sister and parents in WorkSafe New Zealand v N E Parkes & Sons Ltd was consistent with an award of approximately $33,000 for the sister.59 In WorkSafe New Zealand v Altranz, reparation of $35,000 was to be paid to a sister.60 The award of $10,000 here for each sibling who provided victim impact statements was therefore also within the range of what had been awarded in other cases. It was also appropriately relative to the awards for parents.

[138]          Ocean Fisheries has not established there was an error in the quantum of awards assessed on an individual basis through those awards being inconsistent with awards in other cases.

[139]          Furthermore, for a specific award to be adjusted on appeal, the Court would have to be satisfied that, with the amounts awarded, the overall sentence was manifestly excessive. Here, the Judge had reduced the fine payable by Ocean Fisheries

57 R v New Zealand School of Outdoor Studies Ltd, above n 31. That award reflected Malaysian culture and the responsibilities the victim (and sibling) had undertaken to family.

58 Although this judgment provides information as to the size of awards in other cases it is not a guideline judgment. It was not contested as such. There may well be merit in a decision providing such guidelines as the full Court did with the starting point of fines in Hanham & Philp.

59 WorkSafe New Zealand v N E Parkes & Sons Ltd [2020] NZDC 25449.

60 WorkSafe New Zealand v Altranz (2008) Ltd [2018] NZDC 26548.

on account of the payments Ocean Fisheries had to make by way of reparation and an amount Ocean Fisheries had paid the victims soon after the deaths.

[140]          Where the amount of the fine has been reduced on account of the total sum to be paid for reparation and there is to be no adjustment to the fine, it will be difficult for a defendant to persuade a court on appeal that there should be an adjustment to a relatedly modest sum which a defendant company has already been ordered to pay for emotional harm. Judges, at first instance, have often remarked that the courts face an invidious task in having to quantify in financial terms the emotional harm suffered through bereavement. It would be even more invidious for a court, on appeal, to be required to assess whether a relatively modest award at first instance should, for instance, be reduced from say $40,000 to $30,000, or $10,000 to $5,000.

Was the Judge in error in failing to reduce the level of emotional harm payments to reflect $60,000 already paid by Ocean Fisheries to the families?

[141]          As mentioned earlier, the Judge acknowledged the commendable way in which Mr Stark, the Ocean Fisheries director, and his wife had tangibly recognised the way the families had been affected, with payments of $20,000 to each family in the weeks after the sinking, and communication. Through ensuring Ocean Fisheries was adequately insured and through an undertaking Mr Stark had provided, the owners of Ocean Fisheries ensured that the reparation for each family would not be reduced on account of any financial difficulty Ocean Fisheries might have faced in paying whatever was required. Mr Eaton said the way in which Mr Stark had supported the families through the long running proceedings was demonstrated by the fact that, on a number of occasions, he had been seated in Court alongside representatives from those families who were there as victims.

[142]          Ocean Fisheries had made sure it was insured so it could pay the required amount of reparation. The information given to the Court suggests the sole director of the company would want reparation to be fixed on the most generous basis. One of the ironies of the present situation is that, through the right of subrogation, the company must allow the insurer to argue under its name that reparation should have been fixed on a significantly lesser basis than had actually happened.

[143]          Ocean Fisheries pointed out that, in a number of cases, payments that have been made to victims have been brought into account or offset against the total the Judge decided was otherwise appropriate for emotional harm reparation.61

[144]          Ocean Fisheries submitted the fixing of reparation and the fine were two distinct steps. The amount already paid to each family should have been taken into account when fixing reparation. They submit it was taken into account only when fixing the fine.

[145]          Maritime NZ accept that, in not deducting the amounts already paid, the Judge “did not engage in the normal exercise of adjustment”. They nevertheless submit this does not mean there was an error or, if there was, the reparation order actually made was manifestly excessive. They submit that, for the Judge to be required to bring them into account, Ocean Fisheries would have to show that the payments made were on account of mitigating the emotional harm suffered, rather than to compensate them for the loss of financial support that would otherwise have been available to each family from the deceased.

[146]I accept the submissions made for Maritime NZ.

[147]          The Judge referred to the fact that Mr Stark’s family gave each family $5,000 cash in case joint bank accounts had been frozen. Those payments would thus likely have been made to compensate each family for their not having continuing financial support available from each of the deceased. Each family was given a further $15,000 in the two weeks after the accident. Again, payments made immediately in the aftermath of the sinking of the boat were more likely to have been made to provide the families with continuing financial assistance rather than as part recognition of the anguish, distress and mental suffering the victims had suffered, the purpose of an award of reparation for emotional harm.

61 WorkSafe New Zealand v CentrePort Ltd [2019] NZDC 12020, [2020] DCR 118; WorkSafe New Zealand v Crafar Crouch Construction (Picton) Ltd [2019] NZDC 8209, [2020] DCR 64; WorkSafe New Zealand v Stevens and Stevens Ltd [2018] NZDC 19098; Work Safe NZ v Hamilton City Council [2016] NZDC 18590; Maritime New Zealand v Talley’s Group Ltd [2016] NZDC 10580; WorkSafe New Zealand v Kone Elevators Pty Ltd [2015] NZDC 22544

[148]          When a victim has received a payment following the death of a family member, the reason and basis for that payment is material in deciding whether and how it should be brought into account against an award of reparation, whether it be for consequential financial loss or emotional harm.62

[149]          The payments made could have been offset against the amounts which were otherwise appropriate for consequential loss. They were not. However, they were taken into account when the Judge provided for a discount of 15 per cent against a starting point fine of $80,000 on account of reparation paid and the tangible way in which Mr Stark and his wife had demonstrated their remorse for what had happened.

[150]          With those payments having been brought into account, albeit not on a dollar for dollar basis, in leading to a discount of the fine and there being no appeal against the level of fine, I do not consider that, with the $60,000 not being brought into account against the award of reparation for emotional harm, the overall penalty imposed in this case was manifestly excessive.

Was the Judge in error in requiring Ocean Fisheries to make payments for emotional harm of $5,000 to each of three siblings when there was no evidence or victim impact statement from them as to the emotional harm they had suffered?

[151]In his sentencing remarks, the Judge said:

[20]      I have read the 13 victim impact statements which have been completed by family members. The experiences they share and the feelings they express are those which, in my experience, naturally flow from the loss they have suffered. The common themes are of shock and distress at the news of the death followed by long lasting sorrow and grief at the loss of an important member of their family circle. Other experiences described include mental health problems, stress on family relationships, fear of the sea and loss of the chance for children who are young or yet to be born to know their grandfather.

[21]      I infer that the sudden and unexpected loss of a family member will have caused emotional harm to the other four surviving victims who have not completed victim impact statements. …

[152]          The Judge then discussed the circumstances of six victims who had not provided victim impact statements. He said the effect of their father’s death on two

62     Sarginson v Civil Aviation Authority, above n 41, at [200]-[202].

children had been described in their mother’s victim impact statement. He said “this was sufficient for them to be considered in the same category as other children of the deceased”.63

[153]          The effect on a father of one of the deceased had been described in his wife’s victim impact statement. The Judge regarded this as sufficient for him to be treated in the same way as other parents.

[154]          Three other victims were siblings of one or another of the deceased. The Judge considered it appropriate to require reparation to be paid for those siblings but at half the amount ordered for those siblings who had provided victim impact reports. He said such an approach was justified given he had “no information about the effect on any of them of their brother’s death”.

[155]          The Judge referred to the view expressed by the Court of Appeal in R v Donaldson that reparation was to be approached “in a broad common-sense way”,64 and the principle of sentencing in s 8(e) of the Sentencing Act that Judges must take into account the general desirability of consistency with appropriate sentencing levels and other means of dealing with offenders in respect of similar offenders committing similar offences in similar circumstances. He noted that victims who had provided victim impact statements had described the emotional harm they had suffered in different ways, that there were particular aspects of loss unique to each of them but the differences were not so great as to lead the Judge to a conclusion that differing awards should be made to victims with similar relationships to one of the deceased.

[156]          Ocean Fisheries submit there should always have to be some evidential basis for finding there was emotional harm requiring a payment of reparation. They said the High Court in Big Tuff Pallets Ltd v Department of Labour had held there had to be some evidential basis for a determination of emotional harm.65 Here, the Judge had expressly stated “I have no information about the effect on any of them [the three siblings] of their brother’s death”.66

63     Maritime New Zealand v Ocean Fisheries Limited, above n 2, at [21](a).

64     R v Donaldson, above n 27.

65     Big Tuff Pallets Ltd v Department of Labour, above n 48.

66     Maritime New Zealand v Ocean Fisheries Limited, above n 2, at [21](c).

[157]          Maritime NZ submit, to the extent there is a conflict between the High Court judgments in Big Tuff Pallets Ltd and Nino’s Ltd v Maritime New Zealand, the approach in Nino’s Ltd should be preferred. They also submit, in the circumstances of this case, there was an evidential basis for the Judge to infer emotional harm to the three siblings through the victim impact statements that were available from other family members.

[158]In Big Tuff Pallets Ltd, a District Court Judge had ordered reparation of

$40,000 to be paid where the victim had suffered serious injury to four fingers of his right hand, parts of three of those fingers were later amputated. On appeal, it was accepted there was an error in the sentencing in that the Judge had not given reasons for the amount of reparation. He had not explained how or why the figure of $40,000 was reached. He did not apportion the sum between emotional harm and financial loss.

[159]          Harrison J in the High Court agreed that, in the circumstances of an earlier case of Smith, the High Court had been correct to remit the case back to the District Court to obtain information about the family circumstances of a child for whom reparation was to be paid. He declined to remit the case before him back to the District Court to obtain further information. Harrison J decided he could fix an appropriate award. Although he noted a victim impact report had been prepared some six months after the accident and it provided some information about the consequences for the victim of the workplace injuries, he said the fixing of reparation was an intuitive exercise, that the judicial objective had to be to strike a figure which is “just in all the circumstances” and which compensates for “actual harm arising from the offence in the form of anguish, distress and mental suffering”.67 He considered the nature of the injury to be relevant. He noted that the loss of three fingers and much of the use of a dominant hand must have caused the victim emotional pain, suffering and distress. He noted there was no evidence that had led to any extreme or psychiatric disability. Taking “a broad view of the case”, he considered a figure of $20,000 was appropriate recompense for the emotional harm, noting it was an award which satisfied the statutory requirement of consistency in sentencing. He thus made an award for

67     Big Tuff Pallets Ltd v Department of Labour, above n 48, at [19].

reparation for emotional harm without relying on specific information provided to him in the victim impact statement.

[160]          In Nino’s Ltd, a fishing boat sank. The three crew members were forced to abandon the vessel some five kilometres off shore. They were rescued after what the Judge described as “near death experiences”. Two of the crew members gave victim impact statements. Both were diagnosed with post traumatic stress disorder (PTSD). In those statements they described the emotional and psychological effects of their experience. The third member did not provide a victim impact statement. The Judge required $25,000 to be paid to each of two crew members who had provided victim impact statements and $10,000 for the other crew member given the lack of any specific victim impact information. Thomas J said:68

There is no indication that Parliament intended judges to undertake some sort of critical analysis of the harm claimed to have been suffered by a victim. This is further emphasised by the purposes of sentencing, which require the Court to provide for the interests of the victim and reparation for harm done, and the principles of sentencing which require the Court to take into account any information concerning the effect of the offending on the victim.

[161]          Thomas J held the Judge was entitled to conclude that the third victim would have suffered a similar experience to the two crew members who had provided victim impact statements but also that she was entitled to differentiate between them because she did not have the same quality of information and, in particular, did not know whether the third victim also suffered from PTSD.

[162]          The Judge here ordered reparation to be paid to a brother of one deceased without the benefit of a victim statement for that brother. That deceased’s partner provided a victim impact statement in which she referred to the way she and the couple’s children had been affected by his death. In doing so, she said:

I don’t just think in terms of my loss, but I think about everyone who lost their lives that day and how much their families must miss them. I think of [the deceased’s] parents, his brother … and his sister …

[163]          The mother of this deceased provided information as to how this brother and sister had been affected by that deceased’s death.

68     Nino’s Ltd v Maritime New Zealand, above n 23, at [44], footnotes omitted.

[164]          The mother of another deceased provided information as to how her family had been affected by her son’s death.

[165]          In his victim impact statement, the son of one of the deceased described the impact his father’s death had had on him but expressed gratitude for the fact he had been able to write a victim impact statement – as hard and emotional as it had been to do so, but concluded with the statement:

During sentencing and when considering any acknowledgement and/or reparation for the family members, I would like you to please consider this victim impact statement and treat my brother and I as fairly and equally as all of the other family members of the FV Jubilee.

[166]          The 20 year old son of one of the deceased described in his victim impact statement the way he had been affected by his father’s death but in conclusion said for the sentencing Judge “I hope you all realise how much of an impact this has had not just on myself but everyone in the families involved”.

[167]          The victim impact statements of others in the family of each of the deceased provided sufficient information to show that each of these siblings was not estranged from the deceased. Those who did provide victim impact statements identified that all those in each deceased’s family had been affected emotionally by the deaths that had occurred. The awards made for siblings who had provided victim impact statements were modest.  There have been cases where siblings were awarded far more than

$10,000.

[168]          The Judge did say he had no information as to how the three siblings referred to had been emotionally affected by the death of their brother. Having read the victim impact statements provided by others in their families, I consider this was a mis- statement. In all the circumstances of this case, I consider the Judge had sufficient information to infer that they would have been emotionally harmed by the death of their brother to an extent that justified an award to each of them of the $5,000 the Judge arrived at, especially so taking into account that those who had provided reports were to each receive $10,000. To not have awarded these siblings reparation as he did would, in the circumstances of this case, have failed to recognise them as victims and

would not have achieved consistency amongst victims in a way that the Sentencing Act says is relevant.

Was there an error in the Judge not ordering reparation to be paid for a sister of one of the deceased?

[169]          The Judge required reparation in differing amounts to be paid to siblings of the deceased but did not include the sister of one of them from the list of siblings to receive compensation. In a minute after his judgment, he said this was because of his understanding she did not want to receive compensation. Subsequent to the judgment, Maritime NZ confirmed with the sister that the Judge’s understanding was not correct and advised the Court of this on 16 October 2020. On 9 February 2021, the Judge issued a final judgment accepting he had made an error but holding that he lacked jurisdiction to correct it. He said, had he not made an incorrect assumption, he would have awarded this sister reparation of $5,000.

[170]          I have reviewed Maritime NZ’s submissions. It was not clear Maritime NZ was seeking reparation for this sibling. They were in error in not referring to her as a sister of one of the deceased’s family and as a victim entitled to reparation in her own right. In her victim impact report, the mother of this sister had provided specific information as to how the sister had been emotionally affected by her brother’s death and the reason she had not provided her victim impact statement.

[171]          I have upheld the awards of $5,000 reparation for siblings who had not provided victim impact statements. With those awards having been upheld, it is necessary to correct the error which was made in respect of the sibling of one of the deceased. The cross-appeal of Maritime NZ as to this is allowed. The order for reparation made in the District Court is varied so as to require Ocean Fisheries to pay

$5,000 in emotional harm reparation to this sister of one of the deceased.

Result

[172]          The appeal of Ocean Fisheries is dismissed. The orders for the payment of emotional harm reparation as made in the District Court are upheld, except that

Maritime NZ’s cross-appeal is allowed. Ocean Fisheries are to pay reparation of

$5,000 for emotional harm to the sibling69 of one of the deceased.

[173]          Maritime NZ are entitled to costs on this appeal. If no agreement is reached over costs, Maritime NZ is to file a memorandum within four weeks. Ocean Fisheries is to file a memorandum in reply within three weeks of the filing of the memorandum for Maritime NZ. Maritime NZ may file a reply within two weeks of receiving the memorandum from Ocean Fisheries. The memoranda are to be no longer than five pages. I will determine costs on the papers.

Solicitors:

J Eaton QC, Barrister, Christchurch LukeCunninghamClere, Wellington.

69     As named by the respondent.

Schedule A

Case Name	Methodology	Apportionment	Culpability justification?	Agreement?
Maritime New Zealand v Ocean Fisheries Limited [2020] NZDC 18702	Separate payment for each category of family member: Partners and children, parents, siblings who provided VIS and other siblings.	$40,000 for each partner and child; $10,000 for each parent; $10,000 for each sibling who provided VIS; and $5000 for other siblings.	No	No
WorkSafe New Zealand v Car Haulaways Ltd [2021] NZDC 3119	Separate payment for each child.	$30,000 for each of three children. Total award: $90,000.	No	No
WorkSafe New Zealand v Vehicle Inspection New Zealand Ltd [2021] NZDC 3036	Global award to family of deceased.	Global award of $130,000.	No, but note the deceased was a customer not an employee.	No
WorkSafe New Zealand v Centreport Ltd [2019] NZDC 12020, [2020] DCR 118	Separate payment for spouse and global payment for children (though commented $x each).	$70,000 for spouse; and $20,000 for each of five children. Total award: $170,000 (less $105,000 already paid).	No	No. Prosecution sought $100,000 for spouse and $25,000 for each child. Defence submissions accepted.
WorkSafe New Zealand v Guru NZ Ltd [2020] NZDC 2955	Agreement on amount and how it was to be apportioned.	$40,000 to spouse; $30,000 to spouse for children; $15,000 each to two other children; and $10,000 for the remaining family. Total award: $110,000.	No	Yes. Agreed amount and apportionment.

WorkSafe New Zealand v Higgins Contractors Ltd [2020] NZDC 17036	Global award to each three families.	$130,000 to each family.	No	Yes. Agreed $130,000 to the family of each victim.
WorkSafe New Zealand v Ports of Auckland Ltd [2020] NZDC 25308	Global award assessed and then apportioned.	$80,000 to young son; $20,000 to unclear family relationship; and $30,000 to other family members. Total award: $130,000.	No	No
WorkSafe New Zealand v N E Parkes & Sons Ltd [2020] NZDC 25449	Global award of $100,000 for immediate family.	Global award for sister and parents.	No, but did undertake thorough analysis of causation requirement.	No
WorkSafe New Zealand v Kiwi Lumber (Masterton) Ltd [2020] NZDC 19117	Separate payments for separate family members/groups and then total recorded.	$75,000 to husband and two stepchildren; $10,000 each to two parents and two sons (one of whom deceased); and $3000 to sister. Total award: $118,000.	No	No
WorkSafe New Zealand v Crafar Crouch Construction (Picton) Ltd [2019] NZDC 8209, [2020] DCR 64	Separate payment for partner and mother.	$100,000 for partner (less $26,000 already paid); and $15,000 for mother. Total award: $115,000.	No	No

WorkSafe New Zealand v Alderson Poultry Transport Ltd [2019] NZDC 25090	Global award to family of deceased.	Total award: $130,000.	No, but comment that partner was present when victim was run over by forklift and died from crush injuries.	No, though both Tegel and Alderson submitted $120,000 reparation should be awarded.
WorkSafe New Zealand v Ritchies Transport Holdings Ltd [2019] NZDC 18495	Global award to family of each of three deceased.	$100,000 to family of each of three deceased.	Ritchies tried to have reparation reduced on basis of low culpability. At [46], the Judge accepted culpability can in some circumstances be a factor in determining reparation (cited a case on     apportioning reparation between multiple defendants). But no culpability adjustment made here.	No
Oceana Gold (New Zealand) Ltd v WorkSafe New Zealand [2019] NZHC 365, [2019] 3 NZLR 137	Hypothetical discussion of appropriate reparation figure.	Comment that an award of between $80,000 and $100,000 would have been appropriate. No discussion of apportionment.	No	$200,000 paid by defendant voluntarily alongside $450,000 from employers’ insurer (also for     consequential loss). More than the reparation Judge would have ordered.

Director of Civil Aviation v Sarginson [2019] NZDC 21779	Appropriate sum determined then apportioned.	$80,000 to spouse; $20,000 to son Total award: $100,000.	No	No
WorkSafe New Zealand v Homegrown Juice Co Ltd [2019] NZDC 16605	Judge observed principally one victim and assessed an appropriate award.	$90,000 for husband.	No	No
WorkSafe New Zealand v Pegasus Engineering Ltd [2019] NZDC 7162, [2020] DCR 197	Separate award for each of wife and daughter.	$80,000 for wife and $20,000 for daughter. Total award: $100,000.	No	No
WorkSafe NZ v Sunday Hive Company Ltd  [2018] NZDC 20796	Sum awarded for defendants three children being his immediate family. Comment: “in particular his eldest child”.	$33,333 for each of three children. Total award: $100,000 held on trust.	No	Defendant did not seem to contest reparation award.
WorkSafe New Zealand v Stevens and Stevens Ltd [2018] NZDC 19098	Sum awarded to daughter (who provided VIS).	$100,000 on trust for daughter (less $25,000 paid by Zespri, $14,778 incurred/paid by defendant). Total award: $100,000. (adjusted to $60,222).	No	No
WorkSafe New Zealand v Toll Networks (NZ) Ltd [2018] NZDC 11132	Global award of $110,000 to be distributed equally among the family members.	Five children (adult children, mother and wife mentioned). Four VIS read to court by three sons and wife. $15,714 for each victim.	No	Toll offered $110,000 reparation prior to sentencing which was rejected by family.

WorkSafe New Zealand Ltd v McRae [2018] NZDC 22096	Global award of $130,000.	Not apportioned aside from comment that $20,000 reflects son’s presence at time of death.	$20,000 of award reflected additional harm suffered by son who witnessed death.	No
WorkSafe New Zealand v Altranz (2008) Ltd [2018] NZDC 26548	Settled on global figure by considering apportionment.	$35,000 to each of three victims (parents and sister). Total award: $105,000.	No	No
WorkSafe New Zealand v Michael Vining Contracting Limited [2018] NZDC 6971, [2019] DCR 682	Global award.	$80,000 apportioned equally between four members of family.	No	No distance between counsel on reparation.
WorkSafe New Zealand v Coda Operations Ltd Partnership [2017] NZDC 18902	Global award of $110,000 appropriated equally among six family members.	$18,333 for each of six victims. Their relationship to deceased was omitted from judgment.	No	Defendant did not oppose reparation of $110,000.
WorkSafe New Zealand v South Port New Zealand Ltd [2017] NZDC 8050	Separate payment for wife and each of two adult daughters. Award for wife included provision for severely disabled son.	$110,000 awarded to wife (and severely disabled son); $7,500 each for two adult daughters.	No	No

WorkSafe New Zealand v Department of Corrections [2016] NZDC 24865, [2017] DCR 368	Global award apportioned to separate payments for wife, each child and each parent.	$60,000 for wife; $15,000 in trust for each of 5 children; and $10,000 for each of two parents. Total award: $155,000.	Yes. Substantial weight given to particular relationship between Corrections and deceased. No right of refusal to undertake the work they were undertaking.	No
WorkSafe New Zealand Ltd v Metrapanel Ltd [2016] NZDC 25945, [2017] DCR 454.	Global award of $90,000.	No apportionment.	No	No
WorkSafe New Zealand v Corboy Earthmovers Ltd [2016] NZDC 21982	Global award of $110,000. But at [42] endorsed approach of dealing with each victim on discrete basis.	Sum not apportioned but reparation was to be paid to partner.	No	Distinguished agreement cases.
WorkSafe New Zealand v Hamilton City Council [2016] NZDC 18590.	$100,000 would have been appropriate, but Council had already paid reparation of $116,000.	Hypothetical sum not apportioned.	No	Yes. Voluntary payments made by Council greater than reparations award.
WorkSafe New Zealand v Northburn Ltd [2016] NZDC 11310	Global award of $100,000.	No apportionment.	No	No
Worksafe New Zealand Ltd v Cathedral Cove Dive Ltd [2016] NZDC 14661, [2017] DCR 121	Agreed reparation would go only to son. But included an uplift for presence of other family members in award for son.	$125,000 to son.	No	No

Worksafe New Zealand v Thompson [2016] NZDC 8350	Global award of $100,000.	No apportionment.	No	No
WorkSafe New Zealand v Oropi Quarries Ltd [2016] NZDC 10755, [2017] DCR 97	Divided global award of $100,000.	$66,666 to an undisclosed family member and $33,333 to another undisclosed family member. Partner, child and mother were mentioned.	No	No
R v Bishop [2016] NZHC 494 (Steelcon Construction Ltd)	Separate award for wife, parents and child from previous union.	$90,000 for wife (less $80,000 already paid); $10,000 to parents; and $10,000 to 15- year-old child from previous union. Total award: $110,000.	No	No
Maritime New Zealand v Talley’s Group Limited [2016] NZDC 10580	Award split evenly among victims who provided VIS.	$100,000 less payments already made left $21,000 owing to father, mother and sister. Split evenly between them.	No	No
WorkSafe New Zealand v Te Anau Bulk Haulage Limited [2016] NZDC 12053	Award apportioned.	$85,000 award apportioned in this way: $42,500 to wife; and $14,166 to each of three children.	No	No

WorkSafe New Zealand v Enviro Waste Services Ltd [2016] NZDC 5425	Award apportioned.	$85,000 total award apportioned $75,000 to parents and $10,000 to daughter from previous union.	No	No
R v New Zealand School of Outdoor Studies Ltd & Te Ripo [2016] NZDC 3081	Award to brother to satisfy responsibilities victim had undertaken prior to death in relation to family. Reflected Malaysian culture.	$125,000 to brother.	No	No
WorkSafe New Zealand v Kone Elevators Pty Ltd [2015] NZDC 22544	Global award divided between family members.	$90,000 distributed in this way: $20,000 left in trust for youngest son by defendant of own volition; $30,000 additionally left to youngest son, for a total of $50,000; $4,000 to each of two sisters; $14,000 left to each of two others (possibly stepsons?); and $4000 to another, possibly mother of stepsons. Relationships unclear from the decision.	No	Defendant of own volition put $20,000 in trust for youngest son.

WorkSafe New Zealand v Lyttleton Port Company Ltd [2015] NZDC 15922	85% of reparation to immediate family, 15% to parents.	$75,000 apportioned: $11,250 to parents; and $63,750 to immediate family (wife and children).	No	Yes
R v Burr [2015] NZHC 2675, (2015) 13 NZELR 357	Global award apportioned. Noted obligation to apportion lies with Court under section 38 Sentencing Act at [41].	$75,000 apportioned: $30,000 to father and mother; $25,000 to girlfriend; and $10,000 to siblings.	No	No
WorkSafe New Zealand v Idea Services Ltd [2015] NZDC 3696, [2015] DCR 210	Total award apportioned.	$90,000 apportioned: $10,000 to each of two brothers; $26,000 to father; and $44,000 to mother.	Yes. High degree of culpability considered. Note this case involved death of a child under care rather than an employee.	No
Ministry of Business, Innovation and Employment v Taranaki Outdoor Pursuits and Educational Centre Trust DC New Plymouth CRI-2013- 043-000271, 23 October 2013	Global award to family of each of three deceased.	$75,000 to each of three families.	No	No
Department of Labour v Pike River Coal Ltd [2014] DCR 32	Award to family of each of 29 deceased.	$110,000 to each of 29 families.	No	No

Department of Labour v Fonterra Co-operative Group Ltd DC Hawera CRI- 2009-021-958, 20 January 2010	Agreed sum not apportioned by Court.	Agreed sum of $116,000 ordered.	No	Fonterra offered $100,000 reparation to two victims and $16,000 to cover consequential loss. Also offered $100,000 insurance to victims’ estate.
Department of Labour v Fletcher Concrete and Infrastructure Ltd DC Nelson CRI- 2009-042-001043, 20 August 2009	Agreed sum not apportioned by Court.	Agreed sum of $125,000 ordered.	No	Yes
Maritime New Zealand v Black Sheep Adventures Ltd [2010] DCR 110	$60,000 award apportioned	$50,000 to parents (including $10,000 for second child); and $10,000 to child.	No	No
Department of Labour v Sir Edmund Hillary Outdoor Pursuit Centre of New Zealand [2010] DCR 26	Award to family not apportioned.	$60,000 to family of each deceased.	Yes. Judge determined culpability was “high” and considered it when setting reparation.	No