The House Movers (Rotorua) Limited v Ministry of Business, Innovation and Employment
[2014] NZHC 1208
•30 May 2014
IN THE HIGH COURT OF NEW ZEALAND ROTORUA REGISTRY
CRI-2013-463-62 [2014] NZHC 1208
BETWEEN THE HOUSE MOVERS (ROTORUA)
LIMITED Appellant
AND
MINISTRY OF BUSINESS, INNOVATION AND EMPLOYMENT Respondent
Hearing: 13 December 2013 Appearances:
J P Temm for Appellant
A F Pilditch for RespondentJudgment:
30 May 2014
JUDGMENT OF KEANE J
This judgment was delivered by me on 30 May 2014 at 4pm pursuant to r 11.5 of the High Court Rules.
Registrar/Deputy Registrar
Solicitors:
Crown Solicitor, Rotorua
THE HOUSE MOVERS (ROTORUA) LT v MINISTRY OF BUSINESS, INNOVATION AND EMPLOYMENT [2014] NZHC 1208 [30 May 2014]
[1] In the early hours of 11 July 2012, House Movers (Rotorua) Limited transported a prefabricated building from Katikati to its Ngongataha yard outside Rotorua. A short distance from the yard there were low lying power lines, a known hazard. To cope with that hazard House Movers had fixed a ‘wire ski’ to the building roof.
[2] The power lines became entangled in the ski and House Movers’ foreman in charge, Justin Morgan, climbed on to the roof of the transported building, to untangle the lines and to hammer the ski back into place. Just before he completed this he dropped his hammer and, when he attempted to retrieve it, slipped on ice on the building roof. He fell four metres and suffered a fractured right tibia and fibula. He was off work for some time.
[3] House Movers was charged with two offences against the Health and Safety in Employment Act 1992: failing to take all practicable steps to ensure Mr Morgan’s safety, while he was exposed to risk of injury when repairing the roof ski, and failing to notify the Ministry as soon as practicable after it became aware that he had suffered serious injury.
[4] On 24 July 2013, in the District Court, Rotorua, Judge Behrens QC fined House Movers $51,000 for its primary offence, and $3,000 for its related offence, and he required House Movers to make $40,000 reparation. House Movers appeals its primary sentence, the fine the Judge imposed for its primary offence, as manifestly excessive in totality on three grounds essentially:
(a) The Judge wrongly assessed its culpability as medium, when it was low; and took a manifestly excessive starting point, when set against comparable cases.
(b) The Judge did not have regard to Mr Morgan’s contributory conduct.
As the person in charge, Mr Morgan climbed onto the roof, contrary to company policy. He ignored House Movers’ established safe practice, and nearby equipment, which made the risk he assumed unnecessary.
(c) The Judge failed to give adequate weight to the amends House Movers made to Mr Morgan: the reparation it had already paid to him and its efforts to rehabilitate and re-engage him; and the further reparation he required it to pay.
[5] House Movers abandoned a further ground of appeal: that the Judge failed to take into account its straitened finances; a ground, as I learned later, that must then have had some substance. On 10 February 2014 House Movers was placed in liquidation by order of this Court. The fine under appeal and the reparation remains remains unpaid.
[6] After hearing the appeal I issued a minute asking whether there was a further issue on the appeal: whether the Judge had sentenced House Movers without deciding a disputed aggravating fact, as to which the Ministry carried the onus.1 The Ministry contends that there was no such issue. The liquidators abide the decision of the Court.
[7] On the view I now take, this last apparent issue is not one that I need to resolve. I am able to resolve this appeal on the Judge’s own conclusions of fact, which are consistent with the agreed facts and with the evidence given for House Movers on sentence.
Fact summary
[8] On sentence, House Movers did not accept the fact summary originally attached to the Ministry’s submissions but did accept an amended version, while still contending that it was incomplete because it left out of account facts material to House Movers’ culpability.
[9] I understand that the fact summary I have on this appeal was the uncontested amended summary before the Judge and it said this:
In the early hours of 11 July 2011 the defendant was carrying out the relocation of an old pre-fabricated school building from Tauranga to Rotorua.
1 Sentencing Act 2002, s 24.
The building was being carried on the back of the defendant’s truck from
Katikati to the defendant’s yard situated at 26 Wikaraka Street, Ngongotaha.
The defendant was the employer of a foreman, Mr Justin Morgan. Mr
Morgan has been employed by the defendant for over seven years.
Mr Morgan suffered a broken right tibia and fibula when he fell off the roof of the school building during its transit to the defendant’s yard.
The accident happened at about 5 am when Mr Morgan was driving the truck carrying the building. As he entered Wikaraka Street he noticed overhead lines above the building shaking and realised something was wrong and he stopped the vehicle to investigate.
There were four other employees of the defendant assisting Mr Morgan.
After alighting from the cab of the truck, Mr Morgan looked up and noticed the ‘wire ski’ (a temporary device fitted to the roof of the building to guide overhead power/telephone lines) on the leading edge of the roof had come loose and the telephone wires had become tangled underneath. The decision was made to go on to the roof to untangle the lines and repair the wire ski.
Mr Morgan put on a harness and lanyard and climbed a ladder to get on to the roof of the building. He freed the wires and started nailing the wire ski back in place with a hammer. At the time the roof was coated with ice.
While working on the roof, Mr Morgan dropped his hammer and when he tried to retrieve it he overbalanced and slipped off the edge of the roof and fell 4.0 metres on to the road below fracturing his right tibia and fibula.
As it was dark the other employees did not see Mr Morgan fall. When they realised what had happened they assisted him while an ambulance was called.
[10] The summary then set out the two breaches of the Health and Safety in Employment Act 1992 (the HSE Act), which the Ministry contended constituted House Movers’ two offences; and, as to House Movers’ primary offence, that under s 6, the summary said this:
As an employer the Defendant was obliged to take all practicable steps to ensure the safety of its employee while at work.
The Defendant ... failed to take the following practicable steps:
(a) failed to ensure that the known winter hazard of ice on a roof was identified and taken into account when dealing with the tangled wires.
(b) failed to ensure that Justin Brandt Morgan had been properly trained in the use of a safety harness and lanyard, including the use of safe anchor points. At the time of the accident the lanyard attached to the
harness was simply held by his work mates and was not safely anchored.
[11] The summary went on to say, as to House Movers’ second offence, which is not in issue on this appeal, that House Movers was obliged to notify the Ministry of any accident resulting in serious harm as soon as practicable after it became known and that it had not done so. The Ministry did not learn of the accident until notified by ACC on 6 August 2012.
Namana evidence
[12] To supplement the fact summary the Judge heard evidence, unopposed by the Ministry, from Sydney Namana, House Movers’ sole director and chief executive, who was in Christchurch on the morning of the incident. He said that since 2001, when it began trading, House Movers had specialised in shifting houses, tanks and other large scale structures, and with the single exception of this case had done so without incident.
[13] Mr Namana also explained that since 2001 House Movers had faced a hazard close to its yard: telephone wires, below regulation height, which Telecom had never lifted, and which lay below the height of the structures House Movers had a permit to transport. Here too, with the single exception of this case, House Movers had always negotiated that hazard without incident.
[14] To negotiate the wires, Mr Namana explained, House Movers fixed rubber mats to the top of transported structures and, more importantly, a ‘wire ski’, which lifted the wires, and allowed the structure to slide underneath. To lift the wires off the ski, if they needed to, staff had T- bar lifters. To work more closely on the ski or the wires, if they needed to, they had a bucket truck, or a hydraulic bucket, at the yard nearby. If they used that equipment, as they were required to do, and normally did, they had no need to climb on top of a structure. They were immune from any risk of a fall, and at no risk from ice.
[15] Mr Morgan, Mr Namana said, had been employed by House Movers for seven years. He had spent 17 years in the industry. On the night he suffered his
injuries, he was in charge. When the wires became entangled with the ski, and the ski became dislodged, he knew what House Movers’ invariable safety practice was. His responsibility was to adhere to it and to ensure that those in his charge did too. He did not do so.
[16] Mr Namana also gave hearsay evidence that, when Mr Morgan decided to climb up onto the roof of the transported house, he acted against advice. House Movers’ Hamilton foreman, who was also involved, urged Mr Morgan to adhere to House Movers’ usual practice.
Submissions on sentence
[17] On sentence the Ministry contended that House Movers’ culpability for its primary offence lay within the medium culpability range identified in Department of Labour v Hanham & Philp Contractors Ltd,2and attracted a starting point between
$50,000 - $100,000. House Movers contended that its offence lay within the low culpability band, and attracted a fine up to $50,000.
[18] The Ministry contended that House Movers had failed to identify two hazards: working at a height and doing so in icy conditions. It had also failed to train Mr Morgan properly in the related safe work practices essential, especially in the use of a safety harness and lanyard. Its director, Mr Namana, was himself untrained.
[19] The Ministry contended that these two related hazards were obvious, they carried the risk of serious injury, and House Movers’ departure from industry standards was significant. House Movers might not have been able to eliminate or isolate these risks, but it could have minimised them by ensuring staff had adequate training, most especially in the use of their safety harnesses.
[20] House Movers contended that it did have a well established and well understood safe practice in place, which recognised and eliminated the two known
interrelated risks the Ministry identified. That practice did not call for the use of
2 Department of Labour v Hanham & Philp Contractors Ltd [2008] 6 NZELR 79 (HC).
safety harnesses. Mr Morgan, the very person responsible for ensuring that the practice was adhered to, did not comply with it.
[21] House Movers conceded that, before the incident, it had only ever trained its staff informally on the job in safe practices, when working at height and in icy conditions. It accepted that it had only had its staff formally trained in such safe practices, after the incident, following a direction from the Ministry. But, it said, the formal training they received did not apply readily within the heavy haulage house and building relocation industry. That training was geared to the construction and building industry. Staff had not found it particularly relevant or helpful.
[22] House Movers contended, therefore, that it had not departed significantly from best industry practice, as the Ministry contended it had; and that the only reason why Mr Morgan fell and suffered injury was because he chose to depart from its invariable safe practice when dealing with the hazard.
[23] On this appeal House Movers and the Ministry adhered to these submissions, in their challenge to, or in their defence of, the Judge’s decision.
Decision under appeal
[24] In his remarks on sentence the Judge’s responded to these submissions in the conclusions he came to in the following excerpt:
[22] I accept that the company had in place policies to deal with Telecom wire. I also accept that it did provide safety harnesses, lanyards and training in respect of house and building relocation work. I also accept that the company machinery was available nearby which could have been used by Mr Morgan to get him up to the wire ski safely and enable him to work securely. He did not use it.
[23] I need to consider whether Mr Morgan’s failure to use easily available safety measures should have a bearing on the level of culpability. However, the Health and Safety and Employment Act must bring home to employers the need to be vigilant to ensure that a slip shod approach by an employee to stipulated safety measures does not prevail. In assessing culpability, the result of the defendant’s failure is not the main factor. What actually happened is. Mr Morgan fell four metres on to the road when he lost his footing on an icy roof. Whatever safety precautions were taken, they did not prevent that. It is the basis of the setting of a starting point.
[24] As to the quantum of that starting point, the informant submits that two steps were necessary to avoid harm in this case. The first was to make sure the known winter hazard of ice on a roof was identified and taken into account when dealing with tangled wires and secondly to ensure that Mr Morgan had been properly trained in the use of a safety harness and lanyard, including the use of safe anchor points. The informant approaches this aspect on the basis that Mr Morgan was wearing a harness but its lanyard was held by work mates and not safely anchored. For reasons previously referred to I doubt that this was in fact the case but I proceed on the basis that there was no anchoring of the lanyard to any safe points.
[25] The informant says that while there were harnesses, ropes, karabiners and anchors available, there had been no formal training on how to use them and says that the fact that Mr Morgan did what he did shows that the defendant relied on inadequate height safety training apparently delivered by Mr Namana, the company director who was himself untrained. I accept that submission.
[26] So the tension between the two points of view is that on the one hand the defendant says that Mr Morgan had safety measures available and knew about them but decided not to use them, the informant says that it was the company’s responsibility to have Mr Morgan in the position where he simply could not ignore the availability and use of safety equipment.
[27] Given what actually happened here, I ... consider this to be a medium culpability offence. It was an obvious hazard that had not been addressed by the defendant in any way. There was no specific training about safety when having to move in icy conditions. Mr Morgan should not have set foot on the roof.
[28] I set the starting point for the fine for this first offence at $80,000, being an amount within the $50,000 - $100,000 scale for a medium culpability offence. I think a discount of 15 per cent for reparation that is paid is appropriate on the assumption that the defendant is a company of adequate means. I have no evidence to the contrary. That results in an amount of $12,000 reducing the fine starting point to $68,000. I give the defendant the full benefit of 25 per cent for the plea of guilty which is $17,000, reducing the end fine to $51,000 on the first charge.
[25] The Judge fixed reparation at $40,000. In that he took into account that House Movers was effectively a family and Mr Morgan a valued employee; that Mr Morgan had returned to his former position; that his injury had healed though he walked with a limp and suffered some lasting pain; and that he had been paid two weeks wages while off work, had been on light duties for three months, and had received $1,800 net wages for the first two weeks and $10,800 for the balance.
Sentencing principles
[26] The Judge’s decision must first be set against the principles governing sentences imposed for offences against the HSE Act for work place accidents, as Randerson and Panckhurst JJ set them out in Department of Labour v Hanham & Philp Contractors Ltd.3 In essence, they said, those principles reduce to four key propositions:4
First, the object of the HSE Act is the prevention of harm in the work place. Secondly, to achieve that object, sentencing under s 50 will generally require significant weight to be given to the purposes of denunciation, deterrence and accountability for harm done to the victim in terms of s 7 of the Sentencing Act. Thirdly, reparation must be a principal focus in sentencing. Indeed, the Sentencing Act gives primacy to reparation where the financial capacity of the offender is insufficient to pay both reparation and a fine. Finally, both the HSE Act and the Sentencing Act require the court to take account of the financial capacity of the offender.
[27] The Court segregated into three bands, reflecting low, medium and high culpability, the starting points to be taken in imposing a fine within the $250,000 maximum. That maximum, the Court said, reflected a fivefold increase in the maximum fine previously payable and signalled, as Duffy J said in Street Smart,5 that ‘where employers infringe, penalties must bite’.
[28] In identifying those three starting point bands, the Court did not distinguish between them descriptively. But it did say that sentencing under the HSE Act is not a ‘mathematical exercise’.
[29] The Court held that, because the purpose of the HSE Act is to prevent harm in the work place, even where the actual harm is relatively low, regard should be had to the potential for harm. Conversely, the Court said, ‘very serious injury or death can sometimes result from low levels of carelessness on the part of the offender’. As a result, the Court said:6
… care must be taken when assessing culpability by reference to the outcome. On the other hand, both the HSE Act and the Sentencing Act oblige the court to have regard to the degree of harm that has occurred.
3 Above n 2.
4 Above n 2 at [40].
[30] Central to an offender’s level of culpability under the HSE Act, the Court said, is the extent to which the offender has failed to take ‘all practicable steps’ to ensure safety in the work place. Section 2A(1) defines ‘all practicable steps’ to be:
… all steps to achieve the result that it is reasonably practicable to take in the circumstances, having regard to –
(a) the nature and severity of the harm that may be suffered if the result is not achieved; and
(b) the current state of knowledge about the likelihood that harm of that nature and severity will be suffered if the result is not achieved; and
(c) the current state of knowledge about harm of that nature; and
(d) the current state of knowledge about the means available to achieve the result, and about the likely efficacy of those means; and
(e) the availability and cost of each of those means.
[31] The Court then stated that, while the duty to take ‘all practicable steps’ to ensure work place safety rested primarily on employers under s 6, ‘employees are not exempt from responsibility’:7
Section 19 requires every employee to take all practicable steps to ensure his or her safety while at work and to ensure that no action or inaction by the employee causes harm to any other person.
[32] The relative responsibilities of employers and employees was the primary point of focus in Department of Labour v Eziform Roofting Products Ltd, where Duffy J said this:8
A victim’s intentional or wilful disregard for safety practices may well mitigate otherwise seriously culpable conduct on the part of an employer. But guarding against workplace accidents that result from foolish carelessness of employees is part of the role of the Health and Safety in Employment Act. So, to allow such carelessness to minimise the employer’s culpability would undercut one of the policy objectives of the legislation.
And then this:
Unless employers are influenced … to change the culture of employees who display a cavalier attitude towards safety precautions, the community will continue to bear the cost of the harm that results. It would be wrong,
7 At [19].
8 Department of Labour v Eziform Roofting Products Ltd [2013] NZHC 1526 at [52].
therefore, to permit employers to rely on an injured employee’s foolishness or carelessness to mitigate the employer’s culpability.
As a result, Duffy J held, it was not inconsistent with s 9(2)(c) of the Sentencing Act
2002 to attach little if any weight to a victim’s carelessness, because ‘to do otherwise
would subvert the policy of the HSE Act’.
[33] As those two cases themselves illustrate, everything depends on the degree to which the employer has failed in their duty and the employee in theirs, and to what extent and in what way their failures interrelate in the work place accident that is in issue in the case.
Judge’s findings of fault
[34] At the end of the passage I have set out from his sentencing remarks, the Judge may appear to have held House Movers culpable at the medium level for having failed to take both of the two practicable steps the Ministry identified.9 He there held that House Movers had not ‘in any way’ addressed the ‘obvious hazard’ he had earlier identified, the risk of Mr Morgan falling from an icy roof four metres from the ground.10
[35] At the beginning of the passage, however, and also later, the Judge accepted, unequivocally, that House Movers did have in place a safe practice, involving the use of dedicated equipment, which eliminated any risk to staff working with the wires, at height, in icy conditions.11 He must then have accepted that House Movers had not failed in the first way the Ministry identified. House Movers had recognised, and set out to safeguard its staff from, those very risks.
[36] The Judge was entitled, on House Movers’ own concession, as well as the undisputed fact summary, to hold it accountable, in essence at least, for the second failure the Ministry identified: failing to ensure that Mr Morgan, and its other staff,
were properly trained in safe practices when working at height, especially in icy
9 Ministry of Business Innovation & Employment v The Housemovers (Rotorua) Ltd DC Rotorua
CRI-2013-063-000445, 24 July 2013 at [27].
conditions. That, in essence, is what he appears to have held House Movers accountable for.12
[37] That conclusion, however, carried a complication the Judge only partly recognised. House Movers’ precise failure, according to the Ministry, lay in not educating Mr Morgan in the proper use of his safety harness and of anchor points. The Judge, himself, questioned, for reasons he set out elsewhere, whether Mr Morgan had actually used a safety harness.13
[38] Nor did the Judge take into account at this point his initial primary finding that House Movers’ invariable practice, when working with the low lying wires, at height and in icy conditions, was to use the T-bar lifters and the bucket truck and the hydraulic bucket, or that this obviated any need to use safety harnesses.
[39] On the Judge’s own findings, then, he overstated at the end of the passage House Movers’ level of fault, when he held that it had not addressed ‘in any way’ the risk icy roofs of transported buildings posed, when staff worked at height on entangled wires.14 Furthermore, as he had earlier made clear, that was not the basis on which he fixed House Movers’ level of culpability at the medium level.15
[40] Speaking of Mr Morgan’s decision not to adhere to House Movers’ usual safe practice, and not to use its equipment, the Judge said that House Movers’ level of fault was not the ‘primary issue’. His starting point, he said, had rather to rest on
‘what actually happened’, and that was this: ‘Mr Morgan fell four metres on to the road when he lost his footing on an icy roof. Whatever safety precautions were taken, they did not prevent that.’
[41] Thus, the Judge then said, to fix House Movers’ level of culpability he had to decide between House Movers’ contention that ‘Mr Morgan had safety measures
available and knew how to use them’, and the Ministry’s contention that ‘it was the
12 At [25].
13 At [24].
company’s responsibility to have Mr Morgan in a position where he simply could not ignore the availability and use of safety equipment’.16
[42] The Judge resolved that tension in favour of the Ministry.17 He held House Movers accountable for failing to educate Mr Morgan to a standard that convinced him that the risk of falling from an icy roof four metres above the ground was so high, and the injuries he was likely to suffer were so serious, that he had to adhere to House Movers’ settled safe practice and use its equipment. House Movers had failed to bring home to Mr Morgan the folly of what he did, before he did it.
[43] The Judge, elsewhere in his decision, accepted that Mr Morgan might well have played a contributory part in his fall and injury. He had been advised not to climb up on to the roof of the transported building. But, the Judge held, under the HSE Act that was not to be deemed ‘contributory negligence’ reducing House Movers’ culpability. The Judge said:18
Although the Sentencing Act provides for the actions of a victim to be taken into account, I think the special circumstances of these sorts of cases under the Health and Safety and Employment Act make that course undesirable.
Two comparable cases
[44] The two cases to which I have already referred are instances where there were broadly comparable accidents and levels of injury, The first, Hanham & Philp, was a case involving three appeals and the appeal relevant to this case is that brought by Hanham & Philp itself.
[45] There, an employee of a contractor fell 2.4 metres, when a stairwell scaffold slewed sideways and collapsed. He sustained a dislocated shoulder, lacerations and bruising, required two operations and extensive physiotherapy, was unable to return to work for 12 months and then not to his usual work. In the District Court the Judge
ordered the company to pay $12,000 reparation and imposed a $5,000 fine.
16 At [27].
[46] On the appeal this Court held the company’s culpability to be in the high category, but to the lower end. The temporary scaffold was obviously inadequate. It ought never to have been built as it was and ought never to have survived scrutiny. A safe platform could have been erected without difficulty or expense. The harm suffered by the victim was significant and could have been much more serious, even fatal.
[47] The Court took a starting point of $125,000 and reduced it by 55 per cent to take into account the company’s otherwise safe systems of work, its excellent safety record, its remorse and the reparation it had paid. That reduced the fine to $56,250, and then $50,000 because it was an informant’s appeal.
[48] In Eziform,19 the second comparable case, two roofers were directed by the managing director to install roof top guttering at the top of a two storey house. The guttering was too big. To squeeze it into place one roofer lay down on the roof. The other roofer stood on the edge of the roof and, holding the shoulders of the one lying prone, attempted to stamp and push it into place.
[49] That second roofer lost his footing and fell 5.5 metres to concrete, suffering multiple fractures to his right leg, two shattered vertebrae and spinal cord damage. He was in hospital for three months, underwent extensive surgery and was left with permanent injury. He was not in work and was unlikely ever to work as a roofer again.
[50] In the District Court the Judge held the company accountable for failing to take three practicable steps. In particular, Eziform could have and did not erect scaffolding and neither roofer had been trained in the use of safety harnesses. There had been a significant departure from safe industry standards. But the roofer who suffered injury was also foolish. The Judge imposed an $18,000 fine as well as reparation.
[51] On the appeal Duffy J held that an $85,000 starting point, at the upper end of the middle range, was called for. The two roofers were ‘at very serious risk’, at
height, and ‘without any protection’. The risk of a four metre fall was very serious. The roofer suffered serious permanent injury and could have been killed. This could have been avoided completely had Eziform adopted a safe practice.20
Conclusions
[52] Mr Morgan’s injuries, as a result of his four metre fall, were serious. They could have been more serious, even fatal. The Judge was right to deem the risk of a fall from the icy roof of the transported building, and the injuries Mr Morgan suffered, to be central to the sentence he imposed. But no less central was the extent to which House Movers was culpable
[53] Mr Morgan fell from the roof and suffered his injuries, as a result of electing to climb up there, in icy conditions, and not to adhere to House Movers’ usual safe work practice, and equipment, which would have eliminated his risk. No less material, when Mr Morgan made that decision, it was his to make. He was in charge. His employer was in Christchurch. The only other person present, to whose advice he might have deferred, his fellow foreman from Hamilton, proved unpersuasive.
[54] To assess House Movers’ culpability accurately, the Judge had to take into account Mr Morgan’s pivotal conduct; and had he done so he could not have concluded that House Movers’ culpability lay at the mid point of the medium level. Mr Morgan’s conduct immediately sets this case apart from the two comparable cases, to which I have referred, where workers fell from height and were seriously injured. In those cases their employers’ unsafe work practices were primarily responsible for those falls and injuries.
[55] House Movers’ carelessness, as it conceded when it pleaded to this offence, lay in failing to educate and instruct its staff, in a systematic formal way, in safe working practices at height, especially in icy conditions; and the Judge was right to take that into account in the sentence he imposed, even though, I consider, he overstated its significance.
[56] In this case, that carelessness may not have been causative. The low lying wires were a known hazard. House Movers had a settled safe work practice to eliminate any risk. If Mr Morgan was unpersuaded by that practice, formal training and instruction might not have changed his mind. But who can say? The possibility is not to be discounted.
[57] Also, House Movers’ failure to train and instruct its staff formally in safe work practices might have proved highly relevant, when working elsewhere, and when its safety equipment was not readily to hand. Then safe use of harnesses and anchor points, in particular, could well have been vital. House Movers may never have suffered any accident elsewhere, but the potential risk cannot be ignored.
[58] Ultimately, however, House Movers had to be sentenced for its actual offence and, I conclude, the Judge overstated its level of fault. When set against the two comparable cases to which I have referred its culpability was relatively low. And so, even when one offsets against the very serious injury Mr Morgan suffered, and the need to impose a deterrent sentence to promote the purposes of the HSE Act, to my mind, House Movers’ offence warranted no higher starting point than $40,000.
[59] The Judge gave House Movers a 15 per cent discount, on account of the reparation order he made, assuming it to be solvent. On the information I have I allow a 20 per cent discount. Then, as the Judge did, I allow House Movers a 25 per cent discount for plea. In the result, I allow House Movers’ appeal. I quash the
$51,000 fine imposed and substitute in its place a fine of $24,000.
P.J. Keane J
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