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[2019] NZLJ 48
Private prosecutions within health and
safety law
Benjamin Johnstone, New Zealand Trustee Services, Christchurch,
asks if the potential financial incentives available for victims will cause
an increase in litigation
INTRODUCTION
occur. It should also be acknowledged that it is the writer’s
ItisfairtosaythatNewZealandhasapoorhealthand beliefthattheroleofWorksafeiscrucialtooursocietyandis
safety record. With high levels of annual workplace
largely underappreciated. In writing this article, I do not
injuries and fatalities, our health and safety legislation
mean to infer that WorkSafe is incompetent in any way.
influences a large number of New Zealanders. As outlined in
When investigating the potential role of private prosecutions
the April 2013 “Report of the Independent Taskforce on
in health and safety, it is necessary to enter the discussion
Workplace Health and Safety”, approximately one in ten
with the presumption that there will be health and safety
workers will be harmed while at work in New Zealand every
breaches that WorkSafe decides not to take action on, and
year. WorkSafe has a crucial role as the primary health and
this is not to say WorkSafe is an ineffective regulator.
safety regulator within New Zealand; it holds the main
objective of promoting and contributing to securing the
PRIVATE PROSECUTION OVERVIEW
health and safety of the worker and workplaces. The ability
Essentially, under s 144 of the HSWA, a private prosecution
to prosecute those who breach health and safety law is one of
may be brought in respect of an offence if:
the enforcement tools available to WorkSafe under the Health
• WorkSafe New Zealand has not taken, and does not
and Safety at Work Act 2015 (HSWA).
intend to take, enforcement action against any person
An inevitable outcome of most successful WorkSafe pros-
in respect of the same incident, situation, or set of
ecutions is that the victim will receive a reparation award.
circumstances; and
However, WorkSafe’s decision to prosecute is not victim-
• Another regulatory agency has not taken, and does not
centric, and is clearly not financially motivated. Essentially,
intend to take, prosecution action under any other Act
only a small number of victims get to enter the ‘lottery’, and
against any person in respect of the same incident,
this will typically only be in cases involving fatalities or
situation, or set of circumstances; and
serious harm.
• Notification to that effect has been received from WorkSafe
So, the question becomes what recourse is available to
New Zealand.
those who believe they have been victims of a health and
safety breach, and therefore should receive compensation,
There are also other issues, which are outside the ambit of
yet WorkSafe has made the decision to take no action?
this article, surrounding the requirement to seek leave of the
Individuals and organisations other than the regulator have
court (s 144) and time limits for bringing a private prosecu-
had the ability to bring private prosecutions since the Health
tion (s 148). Previous cases are rare. At this time, the writer is
and Safety in Employment Act 1992 (HSEA) was amended in
aware of only five successful private prosecutions in New Zealand
2002 to enable third parties to initiate prosecutions. Private
(
New Zealand Meat Workers Union v South Pacific Meats
prosecutions continue to remain available under the HSWA.
Limited [2012] DCR 877;
Creeggan v New Zealand Defence
These prosecutions have been very rare; however, recent
Force [2014] DCR 244;
Kelly v Puketi Logging Ltd [2015]
developments in the potential reparation awards available to
NZDC 15206;
Kelly v M&A Cross Ltd, DC Rotorua CRI-
victims may change this significantly. It remains to be seen
2014-063-000784, 21 May 2014;
Casey v The University of
whether New Zealand courts will see an increase in private,
Otago [2015] NZDC 17543. It is also unhelpful to look at
economically incentivised, health and safety litigation. While
international jurisdictions with similar health and safety
many reasons may exist for a victim to bring a prosecution,
regulations, as private prosecutions are not a feature of the
such as holding the offenders accountable, future deterrence
Australian or United Kingdom health and safety regimes.
of similar offences, or an overall sense of responsibility, this
Despite the low numbers of private prosecutions, the fact
article will focus solely on the potential for a victim to receive
that successful cases exist suggests that WorkSafe, and pre-
significant financial compensation in bringing a successful
vious regulators, have not always made the right call on
private prosecution.
whether or not to prosecute.
There are normally a variety of substantial factors that
It is also in no way guaranteed that there will be a
would influence a decision to undertake a private prosecu-
WorkSafe prosecution following a fatality or serious harm.
tion, especially when the victim has suffered serious harm. In
In
Kelly v Puketi and
Kelly v M&A Cross, Nigel Hampton
viewing such a delicate situation from a detached position,
QC acted in two successful private prosecutions following
the writer apologises for any unfortunate bluntness that may
deaths within the forestry industry. The materials on the
New Zealand Law Journal
March 2019
48
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[2019] NZLJ 48
regulator’s files showed clear health and safety breaches by
other than the magnitude of the fine, the judgment does not
the employers, and essentially no further investigations or
read much differently to previous judgments determined
interviews were required to bring prosecutions (Nigel Hamp-
under
Hanham & Philp. Overall, the decision of
Stumpmaster
ton QC “Legal Viewpoint — Going Private” (2016) 155
does not differ greatly from the methodology laid out in
Safeguard 7). These somewhat recent cases show that the
Hanham & Philp, and reparation is still regarded as central
ability to take a private prosecution is invaluable within
to the courts’ approach.
health and safety law.
Basedontheinformationavailable,itappearsthatNewZealand
Reparation
has not yet seen a victim-instigated private prosecution that
Reparation is considered the ‘first step’ in sentencing under
was predominantly motivated by financial gain; however, the
health and safety law and is the most relevant aspect of the
fact remains that in all of these cases, reparation was awarded
sentencing exercise, in terms of the focus of this article. It
to the victims that would not have otherwise been available
involves a consideration of the statutory framework, taking
had a private prosecution not been brought.
into account any offer of amends and the financial capacity
of the offender. Reparation awards are likely to be the
WHAT IS AVAILABLE TO THE VICTIM, FROM A
strongest financial incentive for a victim to bring a private
FINANCIAL PERSPECTIVE?
prosecution.
Sentencing approach
The relevant principles for reparation sentencing are set
out the Sentencing Act 2002. As noted by the Law Commis-
When examining what may be available to the victim, it is
sion, the Sentencing Act contains a strong statutory presump-
important to look at how the courts reach conclusions on
tion in favour of reparation (Law Commission “Compensating
appropriate financial amounts in sentencing. The previous
Crime Victims” (NZLC R121, 2010) at 23). Under s 32(1) of
approach to sentencing in health and safety cases is well
the Sentencing Act, the court is able to order a sentence of
canvased, having been set out by the High Court in the
reparation if, through or by means of an offence, a convicted
leading case under the HSEA,
Department of Labour v
offender has caused a person to suffer:
Hanham & Philp Contractors Ltd [2008] 6 NZELR 79
(HC). The Court determined an appropriate approach to be
• loss or damage to property; or
(at [80]):
• emotional harm;
1) Assessing the amount of reparation;
• loss or damage consequential on any emotional or
physical harm or loss of, or damage to, property
2) Fixing the amount of the fine by reference first to the
bands and then having regard to aggravating and miti-
As stated in the case of
WorkSafe New Zealand v Rentokil
gating factors;
Initial Limited [2016] NZDC 21294 at [61], the essence of
3) Stepping back and making an overall assessment of the
liability for reparation, in terms of s 32(1) of the Sentencing
proportionality and appropriateness of the total impo-
Act, is that an offender must have caused a person to suffer
sition of reparation and the fine.
the various types of loss, harm or damage specified through
or by means of an offence of which the offender is convicted.
Although
Hanham & Philp was dealt with under the HSEA,
There had been relatively little change to the way in which
it was initially agreed that there had been no material changes
the amount of reparation was calculated by the courts up
tothesentencingexerciseundertheHSWA(
WorkSafeNewZealand
until 2014. However, on 6 December 2014, the Sentencing
v Rangiora Carpets Limited [2017] NZDC 22587 at [17]).
Amendment Act 2014 came into force and the subsequent
However, the somewhat recent High Court decision of
Accident Compensation Corporation (ACC) “top-up” that
Stumpmaster v WorkSafe New Zealand [2018] NZHC 2020
is now available to a victim, in applicable situations, allows
has altered the sentencing exercise. Under the HSWA, the
for significantly larger reparation awards.
sentencing approach is now (at [35]):
The far-reaching effects of the Sentencing Amendment
1) Assessing the amount of reparation;
Act 2014 on health and safety law are too expansive for this
2) Fixing the amount of the fine by reference first to the
article to cover. However, focusing solely on an individual
guideline bands and then having regard to aggravating
considering an economically motivated private prosecution
and mitigating factors;
— this “top-up” creates potential for higher reparation awards,
which is clearly a strong financial incentive. Essentially,
3) Determining whether further orders under ss 152–158
victims of health and safety offending may now be entitled to
of the HSWA are required;
receive larger reparation awards following the amendment
4) Making an overall assessment of the proportionality
of s 32 of the Sentencing Act to allow for the recovery of
and appropriateness of the combined packet of sanc-
consequential loss not covered by the Accident Compensa-
tions imposed by the preceding three steps. This includes
tion Act 2001.
consideration of the defendant’s ability to pay, and also
In the 2009 Supreme Court case of
Davies v Police [2009]
whether an increase is needed to reflect the financial
NZSC 47, the Court outlined that loss of earnings which
capacity of the defendant.
stemmed from physical harm was not able to be the subject
The High Court noted the HSWA adds a number of potential
of a reparation award under s 32(1) of the Sentencing Act.
orders available to the sentencing court that were not avail-
Section 32 barred recovery of lost earnings over the 80 per cent
able under the HSEA, and the previous sentencing approach
paid by the ACC, therefore the Court (at [18]) considered
set out in
Hanham & Philp has now been modified to reflect
that awarding additional reparation awards, related to loss
this.
of earnings, would undermine the “social contract” estab-
The recent District Court decision of
WorkSafe New
lished by the ACC. The Sentencing Amendment Act 2014
Zealand v Stevens and Stevens Limited [2018] NZDC 19098
essentially overturns this Supreme Court decision. The Amend-
adopted the approach laid out in
Stumpmaster, however,
ment Act has changed the wording of s 32(5) from “for
New Zealand Law Journal
March 2019
49
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[2019] NZLJ 48
which the Court believes that a person has entitlements” to
the civil law. There is now significantly more money available
“for which compensation has been, or is to be, paid” there-
in reparation awards, and a successful private prosecution
fore removing the restrictive term of “entitlements”.
could be economically life-changing, especially to a victim or
The practical implications of these alterations came to
victim’s family who have now been placed in a vulnerable
fruition in the case of
WorkSafe New Zealand v Wai Shing
position, due to the breach of the HSWA.
[2017] NZDC 10333. As outlined by the Court (at [66]):
“[t]he ACC scheme intends to provide fair, but not full
LIMITATIONS OF A PRIVATE PROSECUTION
compensation. It is clear that the intention of the Sentencing
Public prosecution v private prosecution
Amendment Act 2014 is to allow victims of crime to receive
shortfalls not covered by ACC entitlements”. Essentially,
Lawyers acting in public prosecutions must adhere to the
s 32(5) of the Sentencing Act 2002 now allows reparation to
Solicitor-General’s Prosecution Guidelines, as well as their
be awarded for the difference between a victim’s full earnings
obligations set out in the Lawyers and Conveyancers Act
and the 80 per cent provided by the ACC. These reparation
(Lawyers: Conduct and Client Care) Rules 2008. These
awards can be substantial and are typically additional to
obligations are unambiguous and provide structure and under-
reparations awarded for any emotional harm suffered. They
standing to the court process. When acting in public pros-
are, therefore, a highly relevant factor if a victim is consider-
ecutions, the prosecutor acts in the public interest and does
ing the financial incentives available in a private prosecution.
not act for a victim or the family of a victim in the same way
In
Wai Shing, the impact of s 32(5) was clearly observed,
as other lawyers act for their clients. Prosecutors must none-
resulting in a particularly large reparation payment being
theless always be mindful of the consequences for the victim
awarded. In discussing reparation awards, the Court stated
and take appropriate cognisance of views expressed by the
(at [78]):
victim or the victim’s family, in relation to any significant
decision relating to the proceedings (Crown Law Victims of
Ultimately, this is a very clear case where the offenders,
Crime — Guidance for Prosecutors (6 December 2014) at [1]–[2]).
through an offence of which they have been convicted
However, issues can arise when looking at the obligations
have caused the victim to suffer loss consequential on
of a lawyer acting in a private prosecution, who are not
physical harm, bringing the victim’s future earnings clearly
bound by the same guidelines. As noted in the Crown Law
within the definition of s 32 of the Sentencing Act 2002.
Solicitor-General’s Prosecution Guidelines (1 July 2013) at [4]–[5]:
The only limitation is therefore the 80% of his earnings
that will be covered by ACC.
Private prosecutions are recognised in and regulated by
the Criminal Procedure Act 2011 and related legislation
Wai Shing presented the Court with the very kind of loss that
such as the Criminal Disclosure Act 2008. The Solicitor-
the Sentencing Amendment Act 2014 intended to address.
General has only a limited role or authority in relation to
The final amount ordered to be paid by the defendant for the
private prosecutions, for example when the power to stay
ACC shortfall was $226,300, with an additional $110,000
a prosecution is exercised or there is a statutory require-
awarded to the worker for emotional harm. It is clear from
ment that a prosecutor obtains the Solicitor-General’s
this decision, that the amendment to s 32 of the Sentencing
consent. However, the Solicitor-General expects law prac-
Act allows the courts to consider much greater awards of
titioners conducting a private prosecution to adhere to the
reparation in cases of significant life changing harm.
Law Society’s general rules of professional conduct and to
From a financial perspective, the impact of a successful
all relevant principles in these Guidelines.
private prosecution on the victim’s life could be hugely
significant. It is the writer’s view that the potential from the
From a financial perspective, the issues that arise can create
ACC “top-up” alone could be enough to incentivise an
complications that may diffuse a victim’s economic interest
individual to undertake a private prosecution in the future.
in a private health and safety prosecution.
Prior to the amendment of s 32 of the Sentencing Act, the
victim would not have been entitled to reparation for this
Limitations for the lawyer
loss. Some commentators have stated the impact of the
A lawyer acting in private prosecution under the HSWA will
Sentencing Amendment Act 2014 allows a “return to per-
need to consider their prosecutorial obligations, contained in
sonal injury” (MinterEllisonRuddWatts, 8 February 2015
r 13.12 of the Lawyers and Conveyancers Act (Lawyers:
<minterellison.co.nz/our-view/return-to-personal-injury-
Conduct and Client Care Rules) 2008:
damages-claims-covertocover-issue-3>). While this state-
A prosecuting lawyer must act fairly and impartially at all
ment may imply the potential for massive amounts of litigation,
times and in doing this must—
which is highly unlikely, the writer does anticipate that a
(a) comply with all obligations concerning disclosure
situation could arise where a victim chooses to bring a
to the defence of evidence material to the prosecu-
private prosecution against a former employer, and the deci-
tion and the defence; and
sion to bring a prosecution is made purely due to the poten-
(b) present the prosecution case fully and fairly and
tial financial gain available, based on the increased reparation
with professional detachment; and
awards obtainable due to the Sentencing Amendment Act 2014.
(c) avoid unduly emotive language and inflaming bias
Traditionally, the intended use of private prosecution was
or prejudice against an accused person; and
for victims or concerned citizens who believe the outcome of
(d) act in accordance with any ethical obligations that
a criminal investigation should have been, but is not a
apply specifically to prosecutors acting for the Crown
prosecution, to have a ‘last resort’ option. Nonetheless, the
…
ability for victims to bring a prosecution under s 144 of the
HSWA, combined with the implications of the Sentencing
In the recent case of
WorkSafe New Zealand v Macready
Amendment Act 2014, effectively creates a situation where
Building Supplies Limited [2017] NZDC 1760 at [37], the
the criminal law is capable of being used as a replacement for
Court noted, “the starting point for the assessment of the
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March 2019
50
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[2019] NZLJ 48
quantum of reparation is the victim impact statement”. If the
INCREASE IN PRIVATE PROSECUTIONS?
overall intention of the prosecution being brought is to
Likelihood of success
economically benefit the victim, it is tempting for the pros-
The issue of likelihood of success in a private prosecution is
ecuting lawyer to accentuate the impact the offence has had
directly relevant and intertwined with the financial incentive
on the victim, in order to attract higher reparation awards.
factor of considering a financially motivated private prosecu-
However, it is clear from the outset that a lawyer acting in a
tion. It is obviously a financial burden to go into a trial with
private prosecution is not a victim advocate. As a prosecuting
uncertainty, and an expensive exercise to come out of the
lawyer, you are not in a position to zealously represent your
trial with nothing. The writer argues that, should a private
client and seek a huge financial award, rather it is your
prosecution get past the initial ‘hurdles’, there is likely to be
obligation to act objectively and avoid unduly emotive lan-
a much higher prospect of a successful prosecution than with
guage and inflaming bias or prejudice against an accused
many other criminal proceedings outside of the health and
person.
safety realm, due to the fact that the offences within the
It will be crucial for lawyers acting in private prosecutions
HSWA are offences of strict liability. Obviously, there are
to ensure their duties to the court are adhered to. A client
variabilities in each case, and a successful outcome for the
considering a private prosecution for financial gain may have
prosecution is by no means inevitable. In addition, there are
unrealistic expectations as to what the prosecutor is able to.
sufficient safeguards in place to avoid vexatious actions.
One commentator has acknowledged that prosecuting law-
Under s 144 of the HSWA, the three ‘hurdles’ that exist in
yers will be required to approach potential litigation with
bringing a private prosecution are;
care, and balance the nuances of private client instructions
1) The regulator takes no action;
with their overriding prosecutorial duty of objective detach-
2) Notice is received from the regulator that no action
ment (Tim Mackenzie “Private Health and Safety Prosecu-
will be taken, and;
tions” (2014) 852 LawTalk). Lawyers should be aware of the
potential financial limitations that exist and advise their
3) Leave from the court to bring an action must be
client from the outset that their obligations may have to
obtained.
trump some instructions.
However, if these initial ‘hurdles’ are avoided, the victim has
a strong chance of receiving a reparation award. As stated
Financial limitations for the victim
earlier, the
NZ Meat Workers Union brought the first suc-
cessful private prosecution in New Zealand. After the Dis-
While general ‘access to justice’ issues are outside the ambit
trict Court found there had been a breach of the HSEA, the
of this article, financial limitations which may exist for
decision was appealed (
South Pacific Meats Ltd v New
victims are obviously relevant. Even if it is established that
Zealand Meat Workers Union Incorporated [2012] NZHC
the victim has a strong case and significant financial incen-
2424). In her judgment, Justice Mallon stated (at [50]):
tives exist, this becomes irrelevant if the financial limitations
are too strong. “Costs for the entire process could easily be
… where an employee is at fault, an employer is not
tens of thousands of dollars, with little cost recovery at the
exonerated if the employer has itself failed to take all
conclusion, although reparation will often result if the pros-
practicable steps to ensure the safety of the employee.
ecution succeeds” (Tim Mackenzie “Legal viewpoint — Going
Underthelegislationtheemployerhastheprimaryresponsibility.”
private” (2014) 147 Safeguard 7).
A similar observation was seen in
Waimea Sawmillers Lim-
In terms of achieving a just outcome, the ability to bring a
ited v WorkSafe New Zealand [2016] NZHC 915, where
private prosecution might seem to be a useful mechanism for
Justice Collins said (at [63]):
unfortunate victims; yet the practical reality is these cases are
I have considerable sympathy for Waimea’s predicament.
difficult to pursue. If not undertaken correctly, the prosecut-
Waimea was clearly a conscientious company that had put
ing party could be liable for costs to the defendant. Victims
in place a series of work safety rules which, if complied
approaching a potential private prosecution should ensure
with, would have ensured [the victim] was not injured. As
they have a sound basis for doing so and are aware of the
I have emphasised however, the fact [the victim] was
entire process. Suggestions that private criminal prosecution
injured is not relevant and the fact that he contributed to
will prove an efficient and satisfying use of resources for the
his injuries did not in itself negate the obligation on
victims of crime have to be doubted. It many situations, it
Waimea to take all practicable steps to ensure [the victim]
appears likely that the expenditure will be significantly in
and other employees were not exposed to hazards in the
excess of that originally contemplated. The right to take a
workplace.
private prosecution is an important safeguard in cases where
Rightfully so, in these cases we see the courts are not willing
the regulator fails to act. However, without the support of a
to find that employee contribution overrides an employer’s
union, pro bono lawyers or a lawyer in the family, the option
obligation. It is also clear that employers that are mostly
may become inaccessible (“Community” (2016) 156 Safe-
compliant, and generally adhere to health and safety obliga-
guard 60). Anyone contemplating a private prosecution needs
tions, can still be found liable. This is encouraging to those
to be well-resourced, patient, and probably most impor-
that may be considering a private prosecution, as they have
tantly, have access to good legal advice.
the knowledge that going down this road is not necessarily a
While private prosecutions offer victims a theoretical
‘dead end’, and if sufficient evidence exists, a reparation
alternative if WorkSafe does not pursue a reported breach, in
award would be highly likely.
reality, there may be many victims who are still unable to
consider this route, purely due to the financial requirements.
The balancing act
Those who are under-resourced and in a vulnerable financial
When asking whether financial incentives exist, the answer is
position are most likely to suffer from this, which is highly
a resounding yes. However, the question as to whether to
concerning.
privately prosecute is still a difficult one. If WorkSafe is
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March 2019
51
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[2019] NZLJ 48
taking no action, and all the ingredients for a potential
never occur. However, this is likely wishful thinking, and the
private prosecution exist, the circumstances surrounding the
continuation of consistent health and safety incidents through-
alleged HSWA offence can be hugely variable, and a wide
out the country is highly probable. The writer contends that
array of factors will need to be taken into account.
it is simply not possible for WorkSafe to prosecute in all
There has been the potential for private prosecutions to be
situations that warrant prosecution and the existence of
brought since the Health and Safety in Employment Act 1992
private prosecutions is crucial for victims. In
Creeggan, dur-
was amended in 2002, yet it took nearly a decade for the first
ing sentencing, Judge Hastings spoke directly to Sergeant
successful case to occur. However, we have seen multiple
Stevin Creeggan and noted (at [48]):
cases in recent times, and
… you have managed
many commentators have
to create a silver lining
noted that health and safety
from an unimaginable
law is certainly an area to
setting aside whether a prosecution is
tragedy that has seared
watch. There is an increased
financially motivated, a general
itself into the nation’s
awareness that private pros-
psyche. You have dem-
ecutions exist as a viable
increase in litigation means that
onstrated what the
alternative. When examin-
amended legislation per-
ing the potential for a surge
employers have an added incentive to
mitting private prosecu-
in litigation, the ‘return to
adhere to health and safety legisla-
tions set out to achieve.
personal injury’ created by
the Sentencing Amend-
The introduction of pri-
tion, which is clearly a good thing
ment Act 2014 is perhaps
vate prosecutions to
the strongest incentive that
New Zealand’s health and
exists for a victim consid-
safety law was clearly not
ering prosecution. In addition, the Accident Compensation
intended to provide individuals with the option of an obscure
Scheme obviously bars most forms of civil personal injury
version of a personal injury claim. However, taking into
litigation, which provides much of the economically incentivised
account the potential for higher reparation awards, and the
litigation in other jurisdictions. Unlike other jurisdictions,
perceived likelihood of success if the initial ‘hurdles’ are
the New Zealand courts do not generally encourage litiga-
crossed, an increase in private prosecutions due to the higher
tion for purely economic gain. It is fair to say that, usually,
financial incentives available is entirely possible.
successful litigation in New Zealand results in somewhat
While we have not seen financially motivated private
nominal awards by the courts. However, this general rule is
prosecutions yet, the writer holds the view that a slight rise in
not seen within health and safety law. The following table
private prosecutions will be seen in health and safety law, and
sets out the reparation awards in the private prosecution
should not be viewed in a negative light. There are sufficient
cases to date:
strongholds in place to restrict vexatious or untenable pros-
Private Prosecution Case
Reparation Award
ecutions, and although the potential rise in private prosecu-
NZ MeatWorkers Union
$5,000
tions may concern employers, we can only hope it will have
Creeggan
$20,000 (on top of the $70,000
the effect of creating a safer workplace environment in
already paid)
New Zealand. Fundamental to the writer’s positive interpre-
Kelly v Puketi
$75,000
tation of the rise in litigation is a focus on the fact that these
Kelly v M&A Cross Ltd
$105,000
financial awards are not exemplary; reparation awards seek
Casey
$60,000
to compensate a victim who has suffered harm through the
fault of another party’s offence. Also, setting aside whether a
These awards are not insignificant. This is likely because a
prosecution is financially motivated, a general increase in
private prosecution is only considered in cases of severity, so
litigation means that employers have an added incentive to
the reparation awards will therefore be relatively high if a
adhere to health and safety legislation, which is clearly a
private prosecution is successful. Although all of the above
good thing.
cases were motivated by non-commercial interests, it is unde-
If the regularity of negative health and safety incidents
niable that, especially in cases of severity, financial incentives
continues to occur within New Zealand, there will be count-
clearly exist. Each case is distinct from the next. However,
less future situations that will potentially warrant private
purely from a financial perspective, the writer believes the
prosecution. Due to the success of recent private prosecu-
economic incentives that currently exist will generally out-
tions, alongside the higher reparation awards being delivered
weigh the limitations.
by the Courts, a larger number of victims may consider
CONCLUSION
bringing a private prosecution to be a viable option. The
In an ideal world, strengthened legislation, increased fund-
writer therefore argues it is probable the significant financial
ing, more inspectors, and greater worker participation could
incentives now available will have the effect of motivating
lead to an increased vigilance over workplace safety. If WorkSafe’s
victims to pursue private prosecutions in search of large
‘2020’ plan to reduce fatalities and serious injuries by 25 per cent
reparation awards, therefore causing a slight increase in
in the coming years is implemented successfully, we may see
litigation within health and safety law in New Zealand.
a decline in serious incidents, and therefore a decline in
The writer offers special thanks to Samuel Moore, Barris-
potential private prosecutions. The ‘wave of litigation’ may
ter. Your regular advice was greatly appreciated.
❒
New Zealand Law Journal
March 2019
52
