16 September 2016
Hamilton City Council will ultimately pay about $150,000 over the fatal attack by a tiger on one of Hamilton Zoo's keepers - but that figure does little to reflect the organisation's negligence, the victim's husband says.
The council pleaded guilty in Hamilton District Court in June to negligence leading to the fatal mauling of Samantha Kudeweh in September last year. On Friday, Judge Denise Clarke imposed a $38,250 fine and $10,000 reparation to the couple's children.
She said a $100,000 emotional harm payment was appropriate, but noted council has already made a $116,000 payment.
However, following the sentencing Richard Kudeweh disputed that the $116,000 had been paid and the judgment revealed the system was "a crock".
"The punishment for not ... taking all practicable steps there is really nothing. You get away with it... Good message to all the employers. You get away with it under the current system."
Council had referred to payments made to his family, he said, but many hadn't come through and others were part of a normal employment agreement.
"There was a range of payments that weren't made, so I don't know how they can come to this judgment today without actually finding the facts," he said.
"We've lost a beautiful woman."
The charge, laid by WorkSafe NZ, stated the council had breached the Health and Safety in Employment Act by failing to take all practicable steps to ensure Samantha Kudeweh was not exposed to hazards arising out of working with Oz.
The charge carries a maximum fine of $250,000.
Judge Clarke heard legal arguments on Tuesday from barrister James Gurnick on behalf of the council and Catalijne Pille, who handled the WorkSafe prosecution, but reserved her decision until Friday.
WorkSafe sought a starting point of an $85,000 fine, while the council proposed a $65,000 starting point.
After factoring in deductions for remorse, participation in a restorative justice conference and the council's early guilty plea and willingness to pay reparation, these figures were rounded down to $42,000 and $40,000 respectively.
But it was Judge Clarke who had the final say, opting for a $38,250 final fine figure.
She had used $85,000 for her starting point for the fine, but her deductions were heavy: The council's guilty plea equated to a 25 per cent reduction off that figure, while the other combined factors led to a further 30 per cent reduction.
The Kudewehs' two children will each get $5181, which will be drip-fed to them over five years.
This equates to each child getting $19.93 per week.
Judge Clarke referred to victim impact statements given to the court by Richard Kudeweh, the two children and Samantha's mother.
"It's clear ... she was a shining light within her family. Her death has had and will continue to have a devastating effect on their lives."
In a press conference called after the judgment, council chief executive Richard Briggs was adamant the $116,000 had been paid to the Kudeweh family.
There were several components to it and some included the fact that Richard Kudeweh was on special leave.
Richard Kudeweh was employed by the zoo at the time of his wife's death, but resigned on July 8.
The council accepted that its systems hadn't been good enough, Briggs said.
It should not have been possible for Samantha to go into the tiger enclosure while the tiger was in there.
The council had pleaded guilty to not taking all practicable steps to keep Samantha alive, Briggs said, and council offered its deepest sympathies to her family and all those affected by her death.
"We're determined to ensure that this does not happen again."
Kudeweh was killed not long after she had fed Oz, who was in the main tiger den at 9am.
After placing the tigers' meat in the "feed flap" in the den of an area called the "Old Tiger House", she left, but did not close any of the gates between the outside enclosure and the den, allowing Oz to continue to be able to move freely between the two areas.
Samantha Kudeweh returned to the tiger enclosure at 10am to get bamboo to feed the zoo's red pandas. It was at that point she was killed.
Her body was found in the main enclosure with Oz sitting next to it.
The WorkSafe investigation found the council negligent in several areas, including not having a "two-keeper routine" for entering and leaving the tiger enclosures, such as that used by staff at Auckland Zoo.
The council should have fitted interlock devices to all the gates, and counterweights to open and close the gates should have been painted to easily show whether a gate was open or closed.
WorkSafe's investigation also included an examination of a 2013 incident at the zoo involving a tiger. On that occasion, a keeper entered an enclosure she thought was empty and found herself alone with Sumatran tiger Sali.
Sali had passed through three open doors before she got into the enclosure with the keeper.
Some modifications, including relocating a gate and instituting a key-retention system, were put in place following that incident.
On Tuesday, Gurnick said the council had already spent almost $220,000 carrying out safety work "above and beyond" WorkSafe's requirements, and this included installing a new security camera system, improving radio communication coverage, completely reconstructing the main keeper gate into the tiger enclosure and making the two-keeper routine - adopted the day after Kudeweh's death - a permanent part of zoo policy.
The only way to completely eliminate the hazard "was to not have tigers", he said.
* An earlier version of this story said the total payment was $250,000. However, this was incorrect.
