Alliance Roof Solutions Limited v Ministry of Business, Innovation and Employment
[2014] NZHC 2625
•24 October 2014
IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY
CRI-2014-404-18 [2014] NZHC 2625
BETWEEN ALLIANCE ROOF SOLUTIONS
LIMITED Appellant
AND
MINISTRY OF BUSINESS, INNOVATION & EMPLOYMENT Respondent
Hearing: 4 August 2014 Appearances:
P N White for the Appellant
A Longdill and O Klaasen for the RespondentJudgment:
24 October 2014
JUDGMENT OF ELLIS J
This judgment was delivered by me on Friday 24 October 2014 at 12.30 pm pursuant to Rule 11.5 of the High Court Rules.
Registrar/Deputy Registrar
Date:………………………….
Counsel/Solicitors:
P N White, Barrister, Auckland
A Longdill, Meredith Connell, Auckland
O Klaassen, Meredith Connell, Auckland
ALLIANCE ROOF SOLUTIONS LIMITED v MINISTRY OF BUSINESS, INNOVATION & EMPLOYMENT [2014] NZHC 2625 [24 October 2014]
[1] On 16 August 2013 Alliance Roof Solutions Limited (Alliance) was convicted by Judge Fitzgerald in the Auckland District Court of an offence under ss 16(1)(a) and 50(1)(a) of the Health and Safety in Employment Act 1992 (the Act).1 The relevant charge was that Alliance:
On or about 5 March 2012 at the corner of Gillies Avenue and Epsom Avenue Newmarket, being a person who controls a place of work, did fail to take all practicable steps to ensure that a hazard that arose in the place of work, namely falling debris, did not harm people in the vicinity of the place of work, namely Jenny Zhao-Trainor.
[2] Fairhall Roofing Limited (Fairhall) was also charged and convicted of the same offence.
[3] Alliance now appeals its conviction. If the conviction is upheld it accepts that the sentence subsequently imposed by Judge Fitzgerald was appropriate.
[4] The key facts were not in dispute and are as follows.
[5] Alliance engaged Fairhall to carry out roofing work at a block of eight, three storey residential units on the comer of Gillies Avenue and Epsom Avenue, Newmarket, Auckland (the units). The property has a driveway on both Gillies Avenue and Epsom Avenue through which pedestrians could walk. These were the only two entries/exits to the units.
[6] On 5 March 2012, at approximately 11.30 am, Jenny Zhao-Trainor went to visit a friend who lived in Unit 6. She parked on Epsom Avenue and walked down the driveway to the unit. As she did so, she was struck on the head by a wooden roofing batten that had been thrown from the roof. She suffered a 7 cm laceration to the top of her head. She was taken by ambulance to the hospital where she was treated with sutures and discharged the same day.
[7] The contract between Alliance and Fairhall was entered into on behalf of each company by Messrs van der Wende and Fairhall, as directors of each company.
1 Ministry of Business, Innovation & Employment v Alliance Roof Solutions Limited DC Auckland
CRN120045038641, 16 August 2013.
The re-roofing work was carried out by Mr Fairhall and a self-employed contractor to Fairhall, Mr Jeremy Riwhi.
[8] The method used to remove the existing roofing material consisted of one of the workers removing the roofing components and passing them down to the other who was standing on the scaffold work platform and that second person tossing it off the scaffolding to the ground below. The workers then cleared the debris from the ground and placed it in a designated removal area for disposal.
[9] Messrs Fairhall and Riwhi were using this method on the day of the incident. Mr Fairhall passed a roofing batten to Mr Riwhi, who was standing with one foot on the scaffolding and the other on the roof. Mr Riwhi checked the area below and tossed a batten to the ground. He did not see Ms Zhao-Trainor who was at that time walking along the far side of the driveway, until she was struck on the head by the batten.
The relevant statutory provisions
[10] Section 16 of the Act deals with the “duties of persons who control places of work” and relevantly provides:
(1) A person who controls a place of work (other than a home occupied by the person) must take all practicable steps to ensure that no hazard that is or arises in the place harms -
(a) people in the vicinity of the place (including people in the vicinity of the place solely for the purpose of recreation or leisure):
…
(2) A person who controls a place of work (other than a home occupied by the person) must take all practicable steps to ensure that no hazard that is or arises in the place harms people -
(a) who are in the place with the express or implied consent of the person; and
(b) who -
(i) have paid the person (directly or indirectly) to be there or to undertake an activity there; or
(ii) are there to undertake activities that include buying or inspecting goods from whose sale the person derives or would derive (directly or indirectly) any gain or reward.
(3) A person who -
(a) controls a place of work (other than a home occupied by the person); and
(b) knows of any significant hazard that -
(i) is in, or is likely to arise in, the place of work; and
(ii) arises from work that is being carried on, or has been carried on, for gain or reward in the place of work; and
(iii) would not, in the ordinary course of events, be reasonably expected to be in, or to be likely to arise in, a place of work of that type; and
(c) either -
(i) expressly authorises any other person to be in the place of work; or
(ii) has personally received oral advice that any other person will, under the authority of any enactment, be working in the place of work; and
(d) is not obliged, in relation to that other person, to comply with subsection (1) or subsection (2) -
must take all practicable steps to warn that other person of the significant hazard.
(4) Except in the case of the practicable steps required by this section to be taken in relation to any person described in subsection (2) or subsection (3)(c)(i), this section does not impose on any person who controls a place of work any duty in respect of any person who is in the place of work solely for the purpose of recreation or leisure.
[11] Section 50 specifies the penalties for breaches of s 16.
[12] The phrase “place of work” is defined in s 2 to mean:
…a place (whether or not within or forming part of a building, structure, or vehicle) where any person is to work, is working, for the time being works, or customarily works, for gain or reward; and, in relation to an employee, includes a place, or part of a place, under the control of the employer (not being domestic accommodation provided for the employee),—
(a) where the employee comes or may come to eat, rest, or get first-aid or pay; or
(b) where the employee comes or may come as part of the employee's duties to report in or out, get instructions, or deliver goods or vehicles; or
(c) through which the employee may or must pass to reach a place of work:
[13] The phrase “person who controls a place of work” is defined (in relation to a place of work) as:
… a person who is -
(a) the owner, lessee, sublessee, occupier, or person in possession, of the place or any part of it; or
(b) the owner, lessee, sublessee, or bailee, of any plant in the place:
[14] And the term “all practicable steps” is defined in s 2A as follows:
(1) In this Act, all practicable steps, in relation to achieving any result in any circumstances, means all steps to achieve the result that it is reasonably practicable to take in the circumstances, having regard to—
(a) the nature and severity of the harm that may be suffered if the result is not achieved; and
(b) the current state of knowledge about the likelihood that harm of that nature and severity will be suffered if the result is not achieved; and
(c) the current state of knowledge about harm of that nature; and
(d) the current state of knowledge about the means available to achieve the result, and about the likely efficacy of each of those means; and
(e) the availability and cost of each of those means.
(2) To avoid doubt, a person required by this Act to take all practicable steps is required to take those steps only in respect of circumstances that the person knows or ought reasonably to know about.
The District Court decision
[15] Self-evidently, the District Court found that Alliance did control the relevant place of work and had breached s 16(1)(a). The Court also rejected Alliance’s argument that s 16(4) applied to exclude its liability.
[16] Because of the approach I take below in relation to the legal issues, I do not propose to set out the Judge’s reasoning in any detail. But there are certain other factual matters that are recorded in his judgment which are are of some importance. It is not my understanding that any of them were disputed in this appeal.
[17] First, the Judge noted that the dealings between Alliance and the owners and residents of the units were conducted on behalf of the owners and residents by Mr Fletcher. Mr Fletcher decided what quotes to accept from contractors and put them to the other owners for their consideration. He also liaised with the relevant contractors and it was he who obtained a quotation from Alliance dated 18 January
2012. The quotation was signed by Mr Fletcher on behalf of the owners the following day and formed the basis of the contract between the unit owners and Alliance. It stated:
We have the pleasure in quoting as follows:
To Re-roof and replace spouting to the property at the above address in the following product.
Supply and install new Metrotile Roof in
Bond/Classic Textured, with Standard Box Trim
The scope of work, consist of the following: Remove existing roofing material and cart away
Supply and fit new roofing battens over new roofing underlay
Supply and fit new April Flashings
Install new selected roofing materials, Trim flashings and vent flashings
Clear site of all rubbish
Provide manufactures product warranty
(there has been no allowance for any timber work, related to this job.)
Price $31124.75 inc GST
Supply and fit new Coloursteel.55gauge deep spouting to match the existing. (No allowance has been made for the existing dow11pipes to be replaced or repaired)
The scope of work, consist of the following: Remove the existing spouting and cart away
Supply and install new spouting to carry water to existing downpipes
Clear site of all rubbish
Price: Note 2 quotes. Front side $3062.15 inc GST Rear side $3062.15 inc GST
To meet health and safety requirements, roofing work requires Roof Edge Protection, in addition we also required suitably erected scaffold to carryout spouting replacement. We can arrange this from our preferred scaffold provider.
Price: $7030.00 incl GST
(Price is to deliver & erect, dismantle & remove pre area once). Plus Weekly Hire: $885.00 inc GST
[18] At [7] – [9] of his judgment the Judge noted that:
On 19 January there was a meeting between Mr Fletcher, Mr van der Wende and a TV technician at which there was some discussion about control of the work site. There was also discussion about Mr Fletcher sending a note to the owners and residents of the units about having the site cleared when the roofing work started.
As a result, on 9 February 2012, Mr Fletcher sent a notice to the owners and residents of the units advising them that on 20 February renovations would start on all units and that this would include general maintenance, replacing the roof and painting the building. The notice included advice to occupants that if they left their cars in the grounds during the day and they got damaged that was their problem. The notice also said trades would be starting at around 8am so it would be pay to be out by then.
There was a site meeting on 15 February 2012 between Mr van der Wende, Mr Fairhall and Mr Riwhi to discuss the roofing job, including such things as the scaffolding going up and who the contact on site was. Mr van der Wende told the other two men that Mr Fletcher was the unit owner's representative and they should contact him if they needed assistance relating to the job or contact with others who were working on site. Mr van der Wende says he also told them that Mr Fletcher had organised for the driveway to be clear so that Mr Fairhall could take what steps he thought were necessary to close the area off, such as putting up warning signs and rope barriers. However he cannot recall exactly what steps Mr Fairhall said he would be taking.
[19] As far as facts relevant to the issue of “control” was concerned, the Judge
found that:
(a) Mr Fletcher considered Mr van der Wende was running the reroofing job, was in charge of everything in the contract and was more than just a broker. He said he believed the people doing the roofing work, (including Mr van der Wende) would look after health and safety and were able to stop people coming onto “the site”.
(b)Mr van der Wende accepted that Mr Fletcher left the roofing work to him to control and that there was some discussion between them about health and safety issues. Because of the height of the building, Mr van der Wende had explained that scaffolding and edge protection were required. They discussed the need for the working area to be kept clear for the roofers, and Mr van der Wende says Mr Fletcher took this on board. He seems to have believed that Mr Fletcher was taking some of the responsibility for health and safety by sending the note to owners and residents on 9 February. Apart from that he said the roofers doing the work on site had the ability to keep the site cleared and cordoned off but that Alliance had no role or responsibility in that respect.
(c) Mr van der Wende’s evidence was not consistent on that issue. When asked whether Mr Fletcher left the health and safety aspects of the roofing work to him, Mr van der Wende accepted that, "... in the broad spectrum I imagine that's what he did think, yes.'' He also said that Mr Fletcher "... had given us authority [to control the site]", before amending that to "... had given the job... the authority to do that so that meant the roofers," by which he meant Fairhall, and not Alliance.
[20] The Judge went on to note that when the scaffolding had been put up around the units, two large signs were attached to it advertising “Alliance Roof Solutions; Re-Roofing and Restoration”. He recorded that Mr van der Wende could not recall telling Mr Fletcher that Fairhall had been contracted to do the work and did not know whether there was any discussion directly between Mr Fletcher and Mr Fairhall about health and safety issues before 5 March but thought that “... from the general discussions it would have been bandied around.”
[21] At [15] he recorded that Mr van der Wende accepted that under the contract, Alliance supplied all materials, arranged for the work to be done and had all rubbish removed. Mr van der Wende said: “I pull the parties together and make it all come together.”
[22] Then, at [16], the Judge noted that:
There was a contractor's job sheet provided in evidence setting out the quantity and cost of materials and labour which totalled $5,534.60 and was the sum paid by Alliance to Fairhall to do the roofing work. In that document, under the “labour” heading, is an entry, "Supervision/Inspection Allowance, $100.”
[23] Mr van der Wende’s evidence was that this $100 provided Fairhall “... with a remuneration reward for looking after the site and running the job, and that included health and safety” for the three week job.
[24] In terms of the events of 5 March 2012, the Judge recorded that:
[23] Mr van der Wende went to the site on Monday 5 March to see how the job was going. He was uncomfortable that he could just drive in and immediately wanted to talk to Mr Fairhall about the concerns he had in relation to things being thrown off the roof. Also there was no rope or barrier in place, nor any warning signs and no spotter on the ground. As he got up to the roof, to talk to Mr Fairhall, he beard Ms Zhao-Trainor's screams and immediately knew what had happened. Mr van der Wende says that as well as Mr Fairhall and Mr Riwhi, there was a 3rd man working for Fairhall on the roof at the time of the accident. However no one else seems to have noticed him and, if he was there, it is not known what he was doing.
[25] Judge Fitzgerald concluded by noting that there had been conflicting evidence about whether or not there were ropes and warning signs up at the time of the accident. He referred to photographs taken by Ms Zhao-Trainor’s friend just after the accident which seemed to indicate that there were none, although it appeared that some were subsequently put up. And at [30] he concluded that:
… I accept the evidence of all those witnesses referred to above who say there were no rope barriers across the driveway, and no warning signs in place, before the incident in which Ms Zhao-Trainor was injured. The rope barriers and warning signs were put up soon afterwards by Mr Fairhall and/or Mr Riwhi. That finding also accords with the evidence of health and safety inspector Mr Maurice who visited the site on the day of the accident and spoke to Mr van der Wende, Mr Fairhall and Mr Riwhi amongst others. He made notes at the time which included that "The signs and barriers were put in place after the event". However he could not remember the source of that information.
The grounds for appeal
[26] In this appeal Alliance says that the learned District Court Judge erred in finding that:
(a) Alliance was a person who controlled the relevant place of work;
(b)section 16(1)(a) applies where a person was exposed to harm in a place of work after entering that place from the vicinity of that place of work;2
(c) section 16(4) did not apply;
(d)a bin or container could have been employed as a practical step to improve safety, and so Alliance had not taken all practicable steps to prevent what occurred.
Approach to appeal
[27] Alliance has a general right of appeal against conviction pursuant to s 115 of the Summary Proceedings Act 1957. Section 119 of that Act provides that such an appeal is by way of rehearing. The Court’s powers on appeal are set out in s 121.
[28] The relevant principles governing such appeals are those articulated by the
Supreme Court in Austin, Nichols & Co Inc v Stichting Lodestar at [13] – [16].3
Discussion
[29] Rather than approaching the issues strictly in accordance with the grounds of appeal I prefer to deal with the matter in a more straightforward way, by considering whether:
(a) on the evidence, prima facie liability under s 16(1)(a) was made out;
and
(b) if so, whether s 16(4) operates to limit that liability.4
2 What the Judge said in this respect is explained further at [42] below.
3 Austin, Nichols & Co Inc v Stichting Lodestar [2007] NZSC 103, [2008] 2 NZLR 141.
4 Such an analysis (which will necessarily address the arguments advanced by Alliance along the way) appears to me to be more in line with the Austin, Nichols “rehearing” approach.
[30] It seems to me that the relevant questions that arise under s 16(1)(a) and (4)
are:
(a) what was the relevant place of work; and
(b) did Ms Zhao-Trainor enter that place of work; or
(c) was Ms Zhao-Trainor in the vicinity of that place of work? If the answer to (c) is yes, then:
(d)was Ms Zhao-Trainor harmed by a hazard that arose in the place of work?
If the answers to (c) and (d) are yes:
(e) did Alliance control that place of work? If the answers to (c), (d) and (e) are “yes”, then:
(f) did Alliance take all practicable steps to ensure that the relevant hazard that arose there did not harm her?
[31] Each question will be considered in turn.
What was the relevant place of work?
[32] The principal difficulties that have arisen in the present case are entirely attributable to the 1998 amendment to s 16. Prior to that amendment, s 16 relevantly provided:
To the extent that a person is -
(a) The owner, lessee, sublessee, occupier, or person in possession of a place of work or any part of a place of work (not being a home occupied by the person); or
…
the person shall take all practicable steps to ensure that people in the place of work, and people in the vicinity of the place of work, are not harmed by any hazard that is or arises in the place of work.
[33] That section made it quite clear that the owner or occupier of a place of work was potentially liable to both people in that place of work and people in the vicinity. Liability arose where a hazard existed or arose in the relevant “place of work”, which was defined in materially the same (broad) way as it is today.
[34] The amendment to the section had its origins in the so-called Berryman case, where a farmer was prosecuted after a beekeeper who had been permitted to keep hives on the farmer's property was killed when a bridge on the farm collapsed.5
After acknowledging that this case was the driving force behind the amendment the Minister of Labour said (at the time of the second reading of the Amendment Act on Tuesday, July 30, 1996):6
… The effect of this amendment would be that, given the absence of employment or a contractual relationship relating to the work of the farm, Mr Berryman could not be prosecuted.
Then, he said:
In brief, this amendment will ensure that landowners have no duty towards people using the landowners' land for purposes unrelated to the work purpose of the landowner. This will leave the Act to focus on employment relationships and contractual relationships. In other words, requirements of the Act continue to apply to any person in a place of work, including land or buildings, for purposes relating to the work activity of that place. On the other hand, people who enter those places of work for other purposes not relating to the work operation are not covered and the occupier does not have duties under the Act to those people.
[35] In broad terms, the effect of the amendment is, firstly, that a person who controls a place of work must take all practicable steps to ensure that:
(a) people in the vicinity of the place of work;
(b) people who are working in the place of work for the person; and
5 Department of Labour v Berryman [1996] DCR 121.
6 (30 July 2006) 557 NZPD 13976.
(c) people with consent to be in the place of work and who have paid to be there or who are customers;
are not harmed by hazards in the place of work. Secondly, other people must be warned of unusual, significant, work-related hazards if they have been given express authorisation by the person in control of the place to be in the place or have given the person in control oral advice that they will be working in the place under statutory authority. People visiting a place of work under any other circumstances are owed no duty by the person in control.
[36] It is quite clear that the liability of a person who controls a place of work to those “in the vicinity” was not intended to be and was not (on the face of it) changed by the amendment. But the fact that the amendment did seek to impose limitations on liability to people who were neither employees nor contractors and who entered into the place of work, potentially has a knock on effect. In particular, the restrictions make it much more important to clearly define the boundaries between the “place of work” itself (where liability to strangers is limited to particular classes) and the “vicinity” (where liability to strangers is not so limited).
[37] The point is neatly demonstrated in the case of Ms Zhao-Trainor. She was neither an employee nor contractor of Alliance (this is what I mean by “stranger”). Accordingly, if she accidentally strayed into Alliance’s “place of work”, the extent of the company’s obligations to her in relation to hazards arising there is dependent on whether she falls within one of the categories of person set out in s 16(2) and (3). That is made quite clear by s 16(4). Given that Ms Zhao-Trainor clearly did not fall within one of those categories, the only way in which Alliance could have breached s 16 in relation to her is if she can be said to have been “in the vicinity of” rather than “in” the place of work. Whether the drive (where she was hurt) forms part of the place of work or not therefore becomes critical.
[38] In my view the purpose of the amendment is clear. It was not intended to limit liability in relation to cases such as the present. But if the driveway forms part of the place of work, then that is its effect.
[39] Judge Fitzgerald dealt with the issue by glossing the phrase “in the vicinity”.
He said:
[70] It would be absurd to interpret these words in a way that would enable an otherwise culpable person or entity to escape liability simply because someone was injured within an area it controls, and not an area that is in close proximity.
[71] The purposive approach that the authorities say must be taken to interpreting the Act must enable the objects of the Act to be satisfied. In this instance that means adopting a liberal and practical interpretation of “in the vicinity”.
[72] In this case it was reasonably foreseeable that someone could have entered the place of work, and be at risk of harm, so that warnings and restrictions on entry were needed.
[73] By failing to take adequate measures to restrict the victim's entry into the work place, or ensure they were taken, Alliance contributed to her ability to enter and thus no longer be "in the vicinity" of the worksite.
[74] In the circumstances therefore I accept the informant's submission that 16(1)(a) can be interpreted to include ensuring that someone in the vicinity does not enter the place of work and become exposed to hazards within it.
[40] I agree with the learned Judge about the objects of the statute and with the final answer at which he arrived. My own view, however, is that even aided by a purposive approach the words “in the vicinity” cannot be assaulted in that way, particularly when that phrase is so starkly contrasted in the section with the phrase “in the place of work”. My preferred interpretive approach would focus on the ambit of the term “place of work”. .
[41] More particularly it might be said that a “place of work” can only be a place where a reasonable person would appreciate that work is being undertaken. Thus in the absence of clear signage or any other external indications that the work being done on the roof was implicating the drive, then it could not be said that the drive is included in the “place of work”.
[42] That conclusion is supported by the fact that here, the “place of work” was, in any event, confined to the roof of the units and the scaffolding. The “work” in question involved repairs to the roof of a block of residential units that were located in a residential area. Although in a general sense it might be said that that work
involved removing the unwanted parts of the roof from the roof area and onto the driveway (and later removing them from the driveway), the driveway was also the only means of entry and egress to the units themselves. Because the units were residential, both the occupants and their visitors were likely to come and go during the day, while work on the roof was being undertaken. Accordingly although the driveway might have been connected with the work on the roof, its principal purpose continued to be a means of public entry and egress to the units. It could not therefore be said properly to form part of the place of work, at least in the absence of some clear demarcation.
[43] In short, I consider that a “place of work”, at least for the purposes of s 16(1), must be clearly identifiable as such and not be serving some other function that is not related to the work being done there. On that analysis the “place of work” here did not include the driveway. It follows inexorably that, in walking down the driveway, Ms Zhao-Trainor had not entered the relevant place of work but was “in the vicinity” of it.
[44] This conclusion answers the questions posed at [30](a), (b) and (c) above.
Was Ms Zhao-Trainor harmed by a hazard that arose in the place of work?
[45] The answer to this question is plainly “yes”. Ms Zhao-Trainor was harmed by Mr Riwhi throwing debris onto the driveway. Mr Riwhi was on the roof (“in the place of work”) when he did so.
Was Alliance the person who controlled the place of work?
[46] If the “place of work” here was limited to the roof and the scaffolding, and Ms Zhao-Trainor was in the vicinity of it, the next question is whether Alliance had control over that place of work.
[47] It can immediately be observed that this question is different from (and arguably easier to answer) the one faced by the learned District Court Judge, who was, of course, concerned with whether Alliance had the requisite control over the driveway as well.
[48] Alliance’s submission that control was absent was summarised by the learned
District Court Judge as follows:
[40] It is argued that Alliance was not “running the job” but its activities were in the nature of a roof consultancy business acting as a go-between, linking the customer with the roofing contractor.
[41] Fairhall, as the contractor doing the job, decided how the job was to be performed. Alliance also paid Fairhall a specific payment to run the job; that payment being in addition to the more substantial sum to actually perform the work on the job. Alliance had organised with Mr Fletcher, as the owners' representative, that Alliance itself would not be doing the job but that a roofer would be doing the job and running the site.
[42] Given that the site was a residential complex where people still needed daily access to their homes, it is said there was no way that something permanent could have been erected to keep people out of the place of work. That in turn meant that to prevent people accessing the site you would need to actually be on the site. The only way that Alliance could take steps to prevent someone entering the site, or halt the work, was if it was actually at the site. The same applies to the step of stopping work.
[43] It is submitted that Alliance is essentially a marketing business, and Mr van der Wende is not a roofer. It was Fairhall that decided when and how work was done. Mr van der Wende only arrived at the site minutes before the injury to Ms Zhao-Trainor. ·It is submitted that momentary attendance on site is insufficient to constitute control of the place.
[49] The submission recorded by the Judge at [42] is irrelevant in light of my finding that the driveway was not included in the place of work. Indeed, it seems to me that any practical or legal difficulty that Alliance may have had in exercising control over the driveway arguably supports my conclusion in that regard.
[50] In my view the learned District Court Judge was right to reject the other submissions, essentially for the reasons he gave. For coherence and completeness, however, I summarise and rework them (with my own emphases) below.
[51] First, it was Alliance who had the contract with the unit owners and residents and the contract was for re-roofing. The contract necessarily conferred upon them a licence to be on the roof and to erect and control access to the scaffolding. Moreover the contract expressly referred to health and safety requirements and the need for Roof Edge Protection. The $100 payment made to Fairhall for “looking after the site and running the job… includ[ing] health and safety” can hardly be seen as an indication that Alliance had sub-contracted out of those responsibilities
[52] Secondly, and regardless of whether Alliance undertook the roofing work itself, it was its responsibility to ensure that systems were in place to protect both workers and members of the public from the hazards associated with the job. It was well within Alliance’s power to require (for example) that there was a spotter, or to put up barriers, ropes and signs.
[53] Thirdly, if the “place of work” is limited to the roof and to the scaffolding there can be little doubt that the licence necessarily conferred on Alliance by virtue of its contract with the unit owners gave the company relevant possessory (control) and occupancy rights at the relevant time. I agree with Judge Fitzgerald that the cases involving health and safety issues arising at sea, or involving other bodies of water, necessarily focus on the very particular issues of possession and control that arise in those contexts, and are not helpful.
Did Alliance take all reasonably practicable steps to ensure the safety of people in the vicinity?
[54] The s 2A definition of “all practicable steps” has been set out above. As to whether they were taken here, I find myself in complete agreement with the learned District Court Judge when he said:
[76] Given that there were not even warning signs or rope barriers in place at the time of the accident, clearly not all practicable steps had been taken. Those measures should have been taken as a bare minimum. In addition it would have further reduced the risk to have placed a bin, or some other type of suitable container, immediately below the area they were working on, into which the pieces of wood and other rubbish could have been thrown instead of tossing them randomly over the driveway from a position where the view of the ground was obscured. That would have contained the area of risk below and required the person throwing the objects to look and see that was where the objects were landing. To also have included a "spotter", to alert the workers when people were approaching, would have added a desirable level of safety.
[55] But putting the matter more specifically in terms of the s 2A definition:
(a) the nature and severity of the harm that may be suffered if debris falls or is thrown off a roof is considerable and self-evident: subs 1(a), (b) and (c) of that definition;
(b)similarly, the available means by which the risk of such harm might be mitigated (such as any of the matters referred to by the Judge) are also self-evident and likely to be effective: subs (1)(d);
(c) the means identified are all readily available and relatively inexpensive: subs (1)(e); and
(d)Alliance either knew about or ought to have known about the relevant circumstances, namely the possibility that debris would fall from or be thrown from the roof: subs(2).
Conclusion
[56] Although I have not followed an identical path of reasoning as the learned District Court Judge I consider his conclusions in relation to all relevant matters were correct. In short:
(a) the relevant “place of work” was the roof of the units and the scaffolding erected around them;
(b) Alliance controlled that place of work; (c) Alliance breached s 16(1) because:
(i)Ms Zhao-Trainor was harmed in the vicinity of that place of work by a hazard that arose there, namely Mr Riwhi throwing debris from the roof (the place of work) onto the driveway; and
(ii)Alliance did not take all practicable steps to ensure that the hazard created by Mr Riwhi’s actions did not harm her;
(d)because Ms Zhao-Trainor did not enter the relevant place of work, the exclusion of liability in s 16(4) does not apply.
[57] The appeal must be dismissed accordingly.
[58] Although Alliance has been unsuccessful, in my view the arguments it advanced in this appeal were not unwarranted, given the way in which aspects of the relevant statutory provisions had been interpreted by the learned Judge. I have differed from his analysis in some respects and, in my view, s 16 was unhelpfully muddied (at least in relation to circumstances such as the present) by the 1998 amendment.
[59] For these reasons, this may be a case where costs should lie where they fall. If counsel for the Ministry disagrees memoranda may be submitted.
Rebecca Ellis J
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