Plumbers, Gasfitters and Drainlayers Board v Rickard

[2021] NZHC 1106

IN THE HIGH COURT OF NEW ZEALAND ROTORUA REGISTRY

I TE KŌTI MATUA O AOTEAROA

TE ROTORUA-NUI-A-KAHUMATAMOMOE ROHE

CRI-2020-463-000150

[2021] NZHC 1106

UNDER

Sections 296 and 297 of the Criminal Procedure Act 2011

IN THE MATTER

of an appeal against a decision of the District Court

BETWEEN

PLUMBERS, GASFITTERS AND DRAINLAYERS BOARD

Appellant

AND

GEOFFREY MICHAEL RICKARD

Respondent

Hearing:	18 February 2021
Appearances:	M J Hodge for Appellant T Reweti for Respondent
Judgment:	18 May 2021

JUDGMENT OF PAUL DAVISON J

This judgment was delivered by me on 18 May 2021 at 2:20 pm

Registrar/Deputy Registrar

Solicitors:

Meredith Connell, Auckland Cooney Lees Morgan, Tauranga

PLUMBERS, GASFITTERS AND DRAINLAYERS BOARD v RICKARD [2021] NZHC 1106 [18 May 2021]

Introduction

[1]    The Plumbers, Gasfitters and Drainlayers Board (the appellant) applies for leave to appeal on a question of law from a decision of Judge TR Ingram dismissing a representative charge it laid against Mr Geoffrey Rickard (the respondent) under s 123 of the Plumbers Gasfitters and Drainlayers Act 2006 (the Act).1 The central issue in this application for leave, and substantive appeal on a question of law, is whether certain work undertaken by the respondent which involved the installation of gas water heaters in the K-Pod caravans he manufactured, was gasfitting work controlled by the provisions of the Act, or whether it fell within a statutory exception provided for by the Act.2

[2]    The respondent consents to the appellant being granted leave to appeal, but otherwise opposes the appeal and supports Judge Ingram’s decision.

Background

[3]    Mr Rickard manufactured small single axle caravans known as “K-Pods” which are designed to be towed behind a vehicle and provide sleeping and cooking facilities. The “deluxe” K-Pod model was priced at around $16,000, and they have been sold both in New Zealand and abroad.

[4]    The K-Pods have two principal elements: the first being a teardrop-shaped body containing the enclosed sleeping area; the second element is a kitchenette located at the rear of the caravan. A hinged lid protects and covers the kitchenette and it can be lifted and secured to enable access to the kitchenette and provide overhead shelter while the kitchenette is in use. The standard kitchenette equipment included gas powered continuous flow water heaters which were located on the rear wall of the K- Pod. This appeal concerns these water heaters and their associated gas hose connections, and whether Mr Rickard installed them lawfully.

[5]    This case has a somewhat unusual history. On 13 October 2020 Mr Rickard appeared for sentence before the Tauranga District Court having pleaded guilty to a

1      Sawyers v Rickard [2020] NZDC 23762 (18 November 2020).

2      Plumbers Gas Fitters and Drainlayers Act 2006, s 5(2)(c).

representative charge laid under s 123(2) of the Act. The charge alleged that between 1 August 2015 and April 2019, Mr Rickard being an unauthorised person undertook or assisted in carrying out gasfitting work in breach of s 9(1) of the Act. It was alleged that he had installed gas hot water heaters into 24 K-Pods. Pursuant to s 123(2) of the Act the penalty for the offending is a fine of up to $50,000.

[6]    In the course of sentencing Mr Rickard, Judge Ingram questioned whether, notwithstanding Mr Rickard’s plea of guilty, he may nevertheless have had a viable defence to the charge because the water heater installation work he had done might fall within an exception in the Act, and consequently not qualify as gasfitting work for the purposes of the Act.

[7]    The Judge adjourned the sentencing hearing and directed the parties to make submissions on the question of whether the water heaters as installed by Mr Rickard fell within the statutory exception contained in s 5(2)(c) and consequently did not qualify as being “gasfitting” for the purposes of the Act. Counsel were agreed that if the Judge determined that Mr Rickard’s work was covered by the statutory exception, the charge should be dismissed. The Judge also requested that he be shown an example of a K-Pod with a gas hot water heater installation as undertaken by Mr Rickard.

[8]    At a subsequent hearing on 9 November 2020 the Judge heard submissions from the parties, and together with counsel and Mr David Thomas (the expert gasfitter engaged by the appellant) the Judge examined a K-Pod which had been brought to Court by the respondent, and observed Mr Rickard demonstrating how he could detach the water heater installed on it in approximately 60 seconds.

[9]    In his reserved decision delivered on 18 November 2020, Judge Ingram held that the gas hot water heater as installed on the K-Pod by Mr Rickard was entirely within the statutory exception and was excluded from the operation of the Act by     s 5(2)(c). He accordingly granted Mr Rickard leave to withdraw his guilty plea and he dismissed the charge.

[10]   The appellant applies for leave to appeal on a question of law pursuant to s 296 of the Criminal Procedure Act 2011, on the grounds that the Judge erred in law in the following respects:

(a)His interpretation of the s 5(2)(c) exception in the Act, and determining that the installation of the gas water heaters in the K-Pods fell within the statutory exception to gasfitting work contained in s 5(2)(c).

(b)Finding that the water heater did not “lose its designed portability when simply hung on a screw” notwithstanding undisputed evidence that the installation of the gas water heaters as undertaken by the respondent was significantly more extensive than simply hanging it on a screw.

(c)By failing to accept uncontested expert evidence from a gasfitter that the installation work as undertaken by the respondent did not fall within the exception in s 5(2)(c).

(d)And also by finding, contrary to uncontested expert evidence, that the “safety considerations normally applicable to gas installations simply do not apply in this configuration”.

[11]   The appellant’s ultimate submission poses the following question of law: whether the work carried out by Mr Rickard, namely installing gas-powered continuous flow water heaters into the kitchenette area of the K-Pods, constituted gasfitting for the purposes of the Act.

Approach on Appeal

[12]   As I have noted, the appellant applies for leave to appeal on a question of law pursuant to ss 296 and 297 of the Criminal Procedure Act 2011. Accordingly the appellant bears an onus of satisfying me I should differ from the District Court’s decision. I can only interfere with the District Court’s decision if I find the Judge has erred.3 Errors on questions of law must raise one of the following three errors:4 a

3      Austin, Nichols & Co Inc v Stichting Lodestar [2007] NZSC 103, [2008] 2 NZLR 141 at [13].

4      Brown v R [2015] NZCA 325, (2015) 30 FRNZ 471 at [16].

misdirection of law apparent in the decision;5 oversight of a relevant matter, or consideration of an irrelevant matter;6 or a factual finding unsupported by any evidence, or an omission to draw an inference of fact which is the only one reasonably possible on the evidence.7

[13]   Should I find the Judge to have erred I must then make my own assessment of the merits without deferring to the District Court apart from the appropriate caution to be adopted when assessing witness credibility.8 In forming my own view, I am able to depend on the reasoning of the Judge, however, the weight I give those reasons is a consideration for me as the appellate Judge.9

[14]   I am to determine the outcome of the appeal by confirming, varying, or setting aside the decision appealed against, remitting the matter to the trial court, or making any other appropriate order.10

District Court Decision

[15]   In his reserved decision Judge Ingram summarised the factual background and procedural history of the matter. He referred to s 5 as being the relevant section of the Act and noted that it provides that, “gasfitting does not include - … (c) any fixing, unfixing, or other work on any portable gas appliance that is designed to have with it, or attached to it, its own gas storage container”.11 He observed that: “The real issue in this case is whether the water heater is a “portable gas appliance that is designed to have with it, or attached to it, its own gas storage cylinder”.12

[16]   The Judge included in his judgment a photograph of the exterior of the K-Pod and another showing the water heater attached to the wall of the kitchenette. He described the water heater and its installation in the K-Pod as follows:13

5 Auckland City Council v Wotherspoon [1990] 1 NZLR 76 (HC) at 86.

6      Bryson v Three Foot Six Ltd [2005] NZSC 34, [2005] 3 NZLR 721 at [25]; Vodafone New Zealand Ltd v Telecom New Zealand Ltd [2011] NZSC 138, [2012] 3 NZLR 153 at [51].

7      Bryson v Three Foot Six Ltd, above n 6, at [26].

8      Austin, Nichols & Co Inc v Stichting Lodestar, above n 3, at [13].

9      Kacem v Bashir [2010] NZSC 112, [2011] 2 NZLR 1 at [31].

10     Criminal Procedure Act 2011, s 300.

11     Sawyers v Rickard, above n 1, at [3].

12 At [11].

13     At [7]-[9].

[7]        At the rear of the K-Pod, a kitchenette is fitted to the exterior, and it is covered with a lid which can be lifted up on its hinge and held in place to provide a little shelter to the sink and bench. The sink is relatively small, and it is designed to be operated with a small hot water heater. There is a small refrigerator fitted below the bench, and some storage fittings. The space below the bench is designed to be so small as to prevent a standard LPG bottle from fitting within it.

[8]        The hot water heater is not permanently fixed. It is a portable unit, manufactured overseas, designed to be hung on a screw or a hook, and attached to a separate gas bottle. The K-Pod has no space for a gas bottle to be stored or held within the exterior walls of the K-Pod. It is instead designed to carry a standard LPG bottle at the front of the K-Pod immediately behind the towball attachment. The gas bottle has to be detached from its holder, brought to the rear of the K-Pod, and put on the ground beside the kitchenette, and attached to the gas hose before the water heater can be used.

[9]        The water heater, as set up in the kitchenette, can only be used with gas from a standard gas bottle with a standard gas fitting. Once the gas bottle is put on the ground beside the K-Pod, the gas bottle is attached using the standard brass screw-on gas connection fitting. The gas bottle and the water supply would then need to be turned on, and the gas water heater will provide warm water to flow into the sink.

[17]   Having described the K-Pod and its installed gas water heater, the Judge explained his reasoning for dismissing the charge as follows:14

[12]      There is no question but that the gas appliance in this case is designed, sold, and intended for use within New Zealand as a portable gas appliance. It can be attached to any suitable hook or screw in any location, and it is designed to have with it, and be attached to, its own separate gas storage container. It is removable, and would normally be stored separately from the gas bottle that it is designed to be used with. In the K-Pod installation, the gas bottle would have to be disconnected before the K-Pod can be towed to its next destination, and the gas bottle secured in the holder at the front of the unit, and the rear lid closed for travel.

[13]      The contention for the prosecution is that once the appliance is attached to the exterior wall of the K-Pod, it is no longer portable, and is fixed in place. Mr Thomas15 pointed out that if it was a permanent fixture, there would need to be some clearances from the side and top of the K-Pod, which are not presently designed for.

[14]      The defence position is that it takes something in the order of 60 seconds to fully detach the appliance, simply by lifting it off the screw on which it hangs, without the use of a screwdriver, detaching the water intake and outlet, which is done solely by hand manipulation of a simple water line fitting, and unscrewing a standard brass gass connection, such as would be

14 Sawyers v Rickard, above n 1, at [12]-[19].

15 David Thomas, is a registered and licenced Certifying Plumber, Certifying Gasfitter,  and  Certifying Drainlayer engaged by the appellant who made a written statement dated 6 November 2020 setting out his opinion on the portability issue.

found on every portable barbeque that uses standard LPG gas bottles. The defence submit that the device does not become a fixture simply by being hung on a screw, with quick detachable plumbing lines fitted, and a detachable gas line attached to a separate gas bottle. The device and its installation features are submitted to be within the range of portable devices excluded from the Act’s operation by s 5(2)(c).

[15]      An assessment of the competing contentions is not susceptible to closely reasoned analysis. Whether the water heater is truly portable and designed to be fixed to its own gas bottle is more a matter of impression, than a carefully calibrated description of its particular features. The aim and purpose of the legislation is however a central feature of the competing cases.

[16]      The statutory objective in restricting permanent gas fitting installation work to qualified personnel is obviously public safety. Parliament has seen fit to exclude from that restriction, portable devices designed to be used with their own gas bottle. Without that exception, only a qualified gas fitter could attach a gas bottle to a gas barbeque. That particular balance between public safety and convenience has been struck by Parliament, and must be given its full intended effect.

[17]      I cannot accept that a portable device, designed for use with a standard LPG gas bottle, somehow loses its designed portability when simply hung on a screw, as it has been designed to do. A single screw is permanently placed, and the device simply lifts off in a second. The use of a screwdriver is not required to hang or remove it. The two water line attachments are designed to be for quick manual release, taking seconds to remove. The gas line has standard portable gas bottle attachments, and again can be unscrewed in seconds.

[18]      The safety considerations normally applicable to gas installations simply do not apply in this configuration. The gas supply is obviously separate from the device. The gas bottle must be outside the K-Pod. The device can only be used with the lid open, and the gas and water supply connected. And it can easily be removed in seconds and hung on a tree for use as a shower, if required.

[19]      Having viewed the gas water heater and its attachments, and seen it detached and removed, I have come to the clear view that its design and installation in the K-Pod configuration that I viewed is entirely within the statutory  exception,  and  thereby  excluded  from  the  Act’s   operation  by s 5(2)(c).

[18]      The Judge accordingly set aside Mr Rickard’s earlier guilty plea, and dismissed the charge.

Submissions

Submissions of the appellant

[19]Mr Hodge on behalf of the appellant submits that the Judge erred in law by:

(a)incorrectly interpreting the exception in s 5(2)(c) of the Act;

(b)finding the heater did not lose its “designed portability when simply hung on a screw” when in fact the installation was more extensive;

(c)not accepting uncontested expert evidence;

(d)determining the installation of the heater was within the exception in  s 5(2)(c) of the Act.

[20]      Mr Hodge agrees with the Judge’s observation “[t]hat particular balance between public safety and convenience has been struck by Parliament, and must be given its full effect.”16 He submits however that the Judge erred by focussing on the water heater’s design and its intended use, whereas the correct approach is to focus on its actual use and method of installation. He submits that what is required is an assessment of the portability of the water heater as it is actually being used in the K-Pod.

[21]      Mr Hodge submits that the manner in which the gas water heaters were installed, including the significant under-bench pipe work, shows that the water heaters were clearly intended to remain in place as installed. Counsel says that even if the water heaters themselves could be readily disconnected and removed, they were not able to be used as a portable device because the pipework for the supply of gas and water to the water heater remained fixed and installed in the K-Pod.

[22]      He submits that by fixing an otherwise portable gas water heater appliance with a degree of permanence by supplying it with gas through fixed pipes, removes its quality of portability. Mr Hodge notes that the K-Pod installations undertaken by the respondent included extensive “under bench” gas pipework to supply the water heater with gas. This under bench fixed pipework includes multiple pipe-to-pipe joins, including the use of a “T-junction” pipe, to convey gas from the LPG cylinder into the K-Pod and up through the bench (via the junction and joins) to connect with the water heater.

16     Sawyers v Rickard, above n 1, at [16].

Finding that heater did not lose designed portability

[23]      The appellant further submits that the Judge took what was an overly narrow view of the appliance by focussing on and considering only the water heater itself, and failing to also take account of the under-bench pipework installed to supply gas (and water) to the heater. These essential components of the gas installation were fixed in place and ensured the gas water heating system as a whole could not be readily removed.

Not accepting expert opinion evidence

[24]      The appellant further submits the Judge erred by rejecting and contradicting the unchallenged expert opinion evidence of Mr Thomas who the appellant had engaged and whose written statement was admitted as evidence.

[25]      Mr Thomas is a certified gasfitter who has been a registered and certified plumber and gasfitter since 1987. Although he had not been involved in providing the appellant with technical advice regarding the prosecution of the respondent, he had previously been involved in carrying out compliance audits on a number of the K-Pod caravans. He gave evidence saying that in his opinion the installation work undertaken by the respondent was gasfitting work within the meaning of that term as defined by s 5(1)(b) of the Act. Specifically, that the respondent’s installation of the water heaters involved “the work of fixing or unfixing any gas installation that is attached to, and forms part of any … caravan …”

[26]      Although Mr Thomas’s evidence and his expert opinion was challenged by the respondent it was not challenged or contradicted by a similarly qualified gasfitting expert.

[27]Mr Thomas gave evidence that:

(a)While the continuous flow water heaters may have been designed and intended for use as portable gas appliances, Mr Rickard attached or fixed them to the caravan. In doing so, they ceased to be portable and became a gas installation. The work therefore became gasfitting within the meaning of section 5(1)(b) of the Act.

(b)In addition to physically installing the continuous flow water heaters in the caravans, Mr Rickard installed pipework to and from the gas appliances. This included pipework supplying water and gas to and from the water heaters. This further ensured the water heaters were not portable and could not be used as portable appliances as intended by the manufacturer.

[28]      Mr Thomas produced two photographs of the K-Pod which were attached to his written statement of evidence. Photograph “A” showed a water heater installed above the kitchenette sink and connected to water and gas pipes passing through the bench top from the area below the sink. The second photograph (photograph “B”) shows the water heater pipework located in a separate part of the K-Pod. The photograph shows flexible gas and water pipes including a brass “T” junction in the flexible gas piping, and other brass pipe connections in the gas line.

[29]      For the purpose of undertaking compliance audits Mr Thomas had personally inspected some of the K-Pods and viewed documentation about others. From his inspection of the K-Pods he identified what he described as numerous areas of non- compliance on each of them. In his evidence he set out and detailed eight features of the installation work undertaken by the respondent which he considered were inconsistent with the standard of work of a trained and qualified gasfitter. These included:

(a)Insufficient clearances around the gas appliances. Such clearances being essential to prevent heat transfer and maintain safe temperatures when the appliances are in operation and to prevent surrounding surfaces from overheating and creating a risk of fire. He noted that insufficient clearances resulting in insufficient air for the appliance to maintain complete combustion with the consequent risk of high levels of carbon monoxide being produced which can be fatal.

(b)There were no safety mechanisms on the caravan’s rear hatch door which would prevent the gas appliances from continuing to operate when the door was closed. Without such a mechanism there was a risk the gas appliances could accidentally be left running when the rear door was closed creating a risk of serious harm or fire.

(c)Non-venting regulators had been installed in the gas pipe work, meaning that in the event that the regulator failed, the over pressurised release of gas would travel through the gas appliances and into the caravan as that route would be the only way the gas could exit the system. This would create a risk of serious harm or fire.

(d)The wrong kind of piping and installation methods had been used creating a risk of gas leaks and serious harm or fire.

(e)None of the installations examined by Mr Thomas were certified as required under the Gas Act 1992 and the Gas (Safety and Measurement) Regulations 2010.

(f)None of the installations examined by Mr Thomas had been entered on the WorkSafe Electricity and Gas High Risk Database as required under the Gas (Safety and Measurement) Regulations. Mr Thomas noted that all gasfitting work on caravans is defined as high risk because they include sleeping quarters.

Submissions of the Respondent

[30]      Ms Rewiti on behalf of Mr Rickard submits the respondent did not perform unauthorised gas fitting under the Act by installing portable hot water heaters in the outdoor kitchenette areas of the K-Pods.

[31]      She submits that none of the connections made by Mr Rickard in fixing the water heater are permanent. Ms Rewiti emphasised the designed portability of the water heater, well demonstrated by Mr Rickard’s ability to remove it by hand from the K-Pod in 60 seconds without the need to use any tools. Counsel notes that as with the operation of a portable gas-powered barbeque, gas bottles used for the water heaters are connected outside the K-Pod. Ms Rewiti submits that because the water heater’s gas bottle must be disconnected before the K-Pod is transported, and it is unable to be stored within the K-Pod, that these are also factors pointing towards portability.

[32]      Ms Rewiti submits that the “Weston” K-Pod, which appears to have been the catalyst for the appellant investigating the K-Pod water heater installations, involved Mr Weston modifiying his K-Pod so as to permanently position the LPG bottle within the kitchenette. She submits that these modifications were made quite independently of the respondent.

[33]      Ms Rewiti submits that the respondent’s actions in fixing the portable water heaters on a nail in a manner which enable it to be easily and swiftly removed, meant that it fell within the exception of either “fixing” or “other work” on a portable gas appliance, and was therefore covered by the statutory exception. She takes issue with the appellant’s submission in relation to the holes drilled through the kitchenette bench and the associated pipework, submitting this work is not “significant”, and submits that nothing in the manner in which the water heaters were affixed to the K-Pods caused them to become a permanent installation and to lose their portability.

Discussion

[34]      I note and respectfully agree with Brewer J who in Maaka observed: “In New Zealand, sanitary plumbing, gasfitting and drainlaying are restricted areas of work. They are regulated by the Plumbers, Gasfitters and Drainlayers Act 2006 … which exists to protect public health and safety by ensuring the competency of persons who work in those fields.”17 Furthermore: [a]lthough not an exciting area of law, the Board's point is well made that sanitary plumbing, gasfitting or drainlaying work done incompetently can pose very significant risks to public health and safety”.18

Did Judge Ingram err in deciding the s 5(2)(c) exception applied to Mr Rickard’s work?

[35]      Although the Judge had the benefit of examining one of the K-Pods and its water heater installation, I consider that having seen the photographs produced by  Mr Thomas, this Court is well informed as to the nature and extent of the installation work undertaken by the respondent in installing the water heaters in the K-Pods. It is significant that the charge brought against the respondent was a representative charge

17     Plumbers, Gasfitters & Drainlayers Board v Maaka [2015] NZHC 1948 at [9].

18 At [12].

and the appellant alleged that he had installed the water heaters in 24 K-Pods. Accordingly the evidence relied on by the appellant in support of the charge was not limited to the single K-Pod produced by the respondent for the Judge’s inspection during the District Court hearing, and also included the other K-Pods inspected by Mr Thomas as part of his compliance audit inspections of K-Pods and which he described in his evidence.

[36]      From Mr Thomas’s evidence it is clear that the installation work undertaken by the respondent involved considerably more than simply connecting a flexible gas pipe to connect an LPG gas bottle to the water heater. Mr Thomas’s evidence shows that the respondent had undertaken quite extensive work that clearly amounted to gasfitting work. The flexible gas pipes which are shown in Mr Thomas’s photograph B, show the extent of the work including the construction of several joins in the pipework. The nature and extent of the installation inside the area of the K-Pod below the kitchenette benchtop shows that the pipe work that the respondent undertook was not at all portable and that it very clearly falls within the description of being the work of fixing any gas installation that is attached to a caravan, meaning that it is work that is “gasfitting” and accordingly governed by the provisions of the Act.

[37]      Any consideration of the application of the exception created by s 5(2)(c) regarding any fixing work on any portable gas appliance that is designed to have its own gas storage container attached to it, requires an assessment of the whole assembly comprising and connected to the gas appliance in question in determining whether it is in fact portable. The fact that the appliance is designed by its manufacturer to be portable is not determinative of this issue. Appliances designed to be portable can of course be installed in a way that renders them no longer portable. In the present case it is not just the portability of the stand-alone water heater device itself that must be considered, but rather the water heater as it is actually installed in the K-Pod caravans.

[38]      The installation undertaken by the respondent involved him constructing a number of joins and connections in the flexible gas hose that supplied gas from the LPG bottle to the water heater. That work involved the use of brass fittings to join up sections of the flexible pipe and to join the flexible pipe to the water heater itself. Photograph “B” produced by Mr Thomas clearly shows the nature and extent of this

work including the use of clamps and thread tape in making and sealing the connections. The pipe conveying gas to the water heater is then routed through the kitchenette bench and connected to the base of the water heater along with the two water pipes. Although the water heater itself is held in place on the wall by hanging on a screw, when installed so as to be functional, it is also connected to the gas pipe and to the two water pipes. It cannot be removed without first being disconnected from those three pipes, and although the process of disconnecting the water heater and removing it is easily done, the fact that it can be done does not mean that the exception contained in s 5(2)(c) applies. I also note, that the agreed summary of facts states that some of the K-Pods had gas cookers installed on the same pipework as the gas hot water heaters. This was achieved by means of the use of “T-Junctions” such as shown in Mr Thomas’s photograph B. The fact that in some of the K-Pods, the gas pipes were configured and installed to supply gas to both the water heater and also to a gas powered cooking fixture, supports the conclusion that Mr Rickard’s under bench pipework was gas fitting, and not simply installing a portable gas appliance.

[39]      In my view the exception created by s 5(2)(c) applies to portable devices that are actually portable by having, or by being attached to their own gas storage container. The exception accordingly provides that the fixing or unfixing of the portable device to its own gas storage container is not gasfitting. That is not the situation in the present case where the portable water heater was installed and connected to its gas and water hoses in a manner which clearly shows it was intended to remain in place in the kitchenette and not be disconnected and reconnected and used as a portable device. I further consider that the nature and extent of the gasfitting work which was undertaken, places it squarely within the legislative objective of the Act being the safety and protection of the public.

[40]      Here the respondent had carried out a series of installations of the gas-powered water heaters into K-Pod caravans with sleeping accommodation. Section 5(1)(b) of the Act provides that gasfitting controlled by the Act includes the work of fixing or unfixing any gas installation that is attached to or forms part of a caravan. The statutory purpose and objective of this sub-section is clear. The very nature of ships, boats, caravans, vehicles and trains in which people are working or using for recreation or transport mean that they are at risk of and vulnerable to a gas explosion, fire, or

suffocation should a gas leak occur. The inclusion of caravans in s 5(1)(b) reflects the danger gas appliances installed in caravans pose to their occupants and especially those cooking and sleeping in them.

[41]      In my view the nature and extent of the gas water heater installations in the K- Pods was such as to clearly fall within the scope of the term gasfitting, and furthermore because the water heaters were installed in a way which clearly showed that they were intended to remain in place in the K-Pod kitchenette and not be removed for portable use. I accordingly find that the exception provided for by s 5(2)(c) does not apply.

[42]      I accordingly find that the Judge erred by deciding that the s 5(2)(c) exception does apply. In reaching that conclusion the Judge adopted an overly narrow focus on the fact that the water heater installed in the K-Pod was designed to be portable, and that the water heater itself was able to be disconnected and removed from its installed position readily and rapidly. However the Judge did not give adequate consideration to Mr Thomas’s evidence and to the fact that the respondent had assembled and installed flexible gas pipes and had used brass fittings to connect separate lengths of the gas pipe connecting it between the LPG bottle and routing it to and through the kitchenette bench to connect to the base of the water heater. Accordingly, I find that the Judge erred by failing to take these relevant considerations into account.

[43]      While the water heater installed by the respondent was designed and manufactured to be portable, and sold in New Zealand as a portable water heater, by virtue of how it was installed and connected to the gas pipes which were also installed, it had clearly ceased to be a used as a portable device.

[44]      In summary I find that the respondent installed what were designed and sold as portable continuous flow gas water heaters into the K-Pod caravans, that he manufactured and sold during the period covered by the charge. By installing the water heaters in the manner that he did they ceased to be portable gas appliances within the scope of the exception provided in s 5(2)(c), and his installation work amounted to gasfitting as defined by s 5 of the Act.

[45]      Gasfitting in or attached to caravans involves a high level of risk to caravan users, and such work can only be undertaken by persons qualified and certified as possessing the specialist skills and knowledge required to perform the work to the standards required by the Act in the interests of public safety.

Result

[46]      Having found that the Judge erred in law in his decision that the exception contained in s 5(2)(c) applies, and that a different outcome should have been reached I accordingly allow the appeal.

[47]      I set aside the Judge’s order granting the respondent leave to withdraw his earlier plea of guilty and I set aside the Judge’s order dismissing the charge brought against the respondent pursuant to s 123(2) of the Act.

[48]      I make an order remitting the matter back to the District Court for the respondent to be sentenced on the charge to which he has entered a plea of guilty.

Paul Davison J