The District Court of Hastings in New Zealand in the decision of WorkSafe New Zealand v Arthur Ernest Britton Britton House Movers Limited  NZDC 2101 ordered:
- company director, Arthur Ernes Britton to serve a sentence of four months’ home detention; and
- the Company to pay a fine of $60,000 and costs of $520.
The Court outlined that the nature of the charges not only reflect the danger that was caused in public but also the danger to employees. WorkSafe New Zealand submitted that Mr Britton’s level of recklessness was extraordinary and required a proportionate level of deterrence for others.
The prosecution involved a number of charges under theElectrical Act 1992 (NZ) and the Health and Safety in Employment Act 1992 (NZ) occurring when Britton House Movers transported a transportable house on the North Island of New Zealand.
Mr Britton was a director of the company and the foreman for the job. On the day of the incident, Mr Britton was driving the vehicle carrying the transportable house when the roof of the house came into contact with live overhead power lines. One of the power lines snapped and fell onto the roof of the house.
One of the company employees then climbed onto the roof and used a wooden stick to move the live power line into a ditch on the side of the road.
A local farmer was moving his sheep in a nearby paddock at the time. He waited for the convoy to clear the road before letting his sheep out. Seven of his sheep and two of his dogs were electrocuted as they walked into the roadside ditch. The farmer himself narrowly avoided electrocution and was the one who later alerted authorities.
Relevant safety failures noted in the judgment were that:
- it would have been clear to anyone that the power lines were live and uninsulated;
- Mr Britton was standing next to the employee who moved the power line at the time and failed to instruct or prevent him from doing so;
- none of the employees were wearing any safety equipment that could have protected them from electrocution; and
- no notification was made to the authorities in relation to what had occurred.
Consequences of the action
The breaches resulted in significant dangers to the public and the employees. Further, it was alleged that there may have been a school bus in the vicinity and therefore the results could have been catastrophic.
In imposing a home detention sentence the Court noted that Mr Britton was a first time offender and that there was a low risk of him reoffending. The alternative to home detention would have been time served in prison.
What does this decision mean for Australia?
In Australia directors and officers are already at risk of personal prosecution for breaches under occupational safety and health and work health and safety legislation. Significant financial penalties can be ordered and jail terms may also be imposed by the Courts.
So could we expect to see similar home detention orders here in Australia?
Three Australian States, New South Wales, South Australia and Western Australia already have versions of home detention for various criminal sanctions.
In Western Australia home detention can only be imposed as a condition of bail. In other words, the Court cannot order home detention instead of serving prison time.
However, it is important to remember that Western Australian courts can already order jail terms of up to two years imprisonment for breaches of the Occupational Safety & Health Act (WA) 1986 and the Occupational Safety & Health Regulations (WA) 1996.
We have already seen some Australian Courts willing to impose suspended sentences on individuals for two safety breaches. In Western Australia there has been an increasing tendency in recent years for WorkSafe to look to prosecute company directors and managers and not just the company itself where serious safety breaches have occurred.
This is a trend not only in Western Australia but one that is nationwide particularly given the introduction of the new due diligence obligations for officers under Work Health & Safety legislation in other States and Territories.