Companies sentenced after tree falls on children

A November 2016 incident in which four children under the age of four and a teacher were injured by a falling tree at Discoveries Educare Centre in Epsom Auckland had its sequel in the Auckland District Court today.

“This was a potentially catastrophic incident and it is pure luck that no-one was killed,” says Danielle Henry, Northern Investigations Manager for WorkSafe.

“Our investigation found that the tree had been dead for more than a year before it fell. The dead tree should have been identified and appropriate steps should have been taken to address this risk, such as removing the tree from the playground.

“Discoveries Educare Limited failed to monitor and manage the condition of the tree and Heng Tong Investment Limited (which leased the property to Discoveries Educare) had not carried out regular visits, assessments or inspections.

“Discoveries Educare Limited admitted they did not believe the tree posed any risk and instead focused on risk posed by the trees branches and Heng Tong did not believe health and safety issues were its concern.

“Both were responsible for ensuring children and staff were not put at risk by the condition of the tree, yet both failed to identify this very obvious risk.

“Discoveries Educare Limited and Heng Tong Investments Limited both had a duty of care they failed to meet,” said Ms Henry.

“This was a big, old tree and a very obvious risk to those on the premises. This incident shows in near-catastrophic detail just how important it is for businesses to assess all risks their operations pose to workers and others.

“But that’s not the end of their responsibilities – they must put appropriate controls in place to mitigate those risks. If they don’t have the in-house expertise to identify obvious risks and their controls, they should engage someone who does.”

Notes:

Discoveries Educare Limited

  • A fine of $172,000 was imposed.
  • Reparation of $46,200 ($3,500 of which has already been paid) was ordered, as well as $3,490 in consequential loss.
  • Discoveries Educare Limited was sentenced under sections 36 (1)(a) and (2), 48(1) and (2)(c) of the Health and Safety at Work Act 2015.
    • Being a PCBU, failed to ensure so far as was reasonably practicable, the health and safety of workers who worked for the PCBU, while they were at work in the business or undertaking, namely supervising children in the rear play area, and that failure exposed them to a risk of serious injury or death, namely crushing by collapsing tree.
    • Being a PCBU, failed to ensure so far as was reasonably practicable, the health and safety of other persons, was not put at risk from work carried out as part of the conduct of the business or undertaking, and that failure exposed them to a risk of serious injury or death, namely crushing by collapsing a tree.
  • S 48(2)(c) carries a maximum penalty of $1,500,000.

Heng Tong Investment Limited

  • A fine of $89,200 was imposed.
  • Reparation of $27,800 was ordered, as well as $2,326 in consequential loss.
  • Heng Tong Investment Limited was sentenced under sections 36(2), 48(1) and (2)(c) of the Health and Safety at Work Act.
    • Being a PCBU, failed to ensure so far as was reasonably practicable, that the health and safety of other persons, was not put at risk from work carried out as part of the conduct of the business or undertaking, namely property leasing and management of the property, and that failure exposed them to a risk of serious injury or death, namely crushing by collapsing tree.

For clarity, the total reparation ordered by the judge for both companies to the children injured in the incident was $74,000. That is to be split 60 per cent Discoveries Educare Limited and 40 per cent Heng Tong Investment Limited.

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