The High Court has confirmed that an employee's carelessness at work will not exonerate the employer when it comes to a health and safety prosecution.

The facts

Eziform Roofing Products Ltd"1 was ordered in the District Court to pay reparation of $40,000 and fined $18,000 for failing to ensure the safety of an employee under the Health and Safety in Employment Act 1992.

The Department of Labour appealed the fine on the basis that it was too low.

The accident occurred as two employees were trying to fit guttering on a two-storey house. One man tried to stamp it into place while standing on the edge of the roof and holding on to the other man's shoulders. He lost his footing and fell about 5.5m onto concrete below, suffering multiple fractures and permanent damage. He is unlikely ever to work as a roofer again.

The District Court, in deciding an appropriate penalty, took into account the employee's "foolish" actions and imposed a modest fine in today's terms.

But the High Court took the view that to allow employee carelessness to minimise an employer's culpability would undercut one of the policy objectives of the Act and raised the fine to $60,000.

Chapman Tripp comment

  • This case provides clarity around the vexed issue of whether an employee's contribution to his/her accident is relevant in sentencing the employer; an area where there has been mixed authority in the past. In short, an employee's contribution will not be relevant where there are clear steps that an employer should have taken to prevent serious harm.  
  • It also reflects a key difference between health and safety sentencing and employment law: in employment law, the contributory actions of an employee will generally be taken into account in determining the overall penalty an employer may face.