Judge Rzepecky initially imposed a fine of $600,000 on Sand Safaris, but said the company’s ability to pay had to be taken into consideration and he reduced the fine to $200,000.
The judge said the company had suffered a big drop in income in recent years, partly down to tourism being hit hard by the Covid-19 pandemic.
He imposed reparation for emotional harm on the Oh family at $130,000 and an additional $53,209.32 for consequential losses the Oh family suffered as a result of their loved one’s death. He also ordered Sand Safaris to pay $22,136.63 as 50 per cent of WorkSafe’s prosecution costs - for a total order of $405,345.95.
The judge passed on the court’s sympathy to the Oh family and said while nothing the court could do would undo the harm caused, he hoped the sentencing would help them.
He said Sand Safaris no longer carries out the sandboarding part of its trips, and he questioned the company’s remorse given that it still partly blamed Jin Chang Oh. He said the company had a very good health and safety record, with no previous convictions.
Judge Rzepecky said the company had identified the possible risk of a sandboarder being hit by a vehicle after their descent, as in 2016 a young person was hit and seriously injured in that way after sandboarding at Te Paki with another company.
However, despite working with other companies on a traffic management plan after that, none had been put in place before the death.
During the trial, WorkSafe lawyer Rachael Woods said the company had inadequate and inappropriate safety measures in place given the risks of sandboarding at the dunes. Woods said this was a real risk and the company would have been aware of it after a boy was hit by a vehicle sandboarding on the dunes two years earlier.
However, the company argued Jin Chang Oh ignored a warning not to go down the dunes when he did.
Daniel Beazley, who was driving the Dune Rider bus the Ohs were on, said he gave his usual instructions that day of telling those going sandboarding the safety rules, including how to slow the board down (by digging the toes into the sand) and asked some passengers at the bottom of the dunes to keep an eye out for other vehicles and stop them from going past while people were sandboarding (Dune Rider has the same shareholders and directors as Sand Safari, but is a separate company).
Beazley said as usual, he went to the top of the dunes and again explained the safety measures, including that people had to go down one at a time. He said as he was kneeling down to help a young girl get on her board, he heard a board hit the sand behind him.
He turned and saw it was Oh, and Beazley said he put his hand up and told Oh to stop as he could not go down the part of the dune he was potentially going to go down, and told him to wait and go down the area where he was helping the young girl. Oh picked up his board and smiled at him, Beazley said.
Beazley said when he turned back to help the girl, he again heard a board hit the sand, and a second or so later when he looked around, Oh was already halfway down the sand dune. Beazley did not know for sure if all the people understood English, but said they smiled and nodded.
However, Judge Rzepecky found Oh was not to blame “at all” for what happened to him. The judge said Sand Safaris could’ve implemented an effective traffic management system to help prevent Oh’s death.
He said there was a clearly identifiable hazard, which the company had a duty to eliminate or significantly minimise using reasonably practicable steps, and failure to take these steps significantly contributed to the cause of Oh’s death.
