River Valley Ventures Ltd v Maritime New Zealand HC Auckland CRI 2010-454-15

[2010] NZHC 2403

IN THE HIGH COURT OF NEW ZEALAND PALMERSTON NORTH REGISTRY

CRI 2010-454-15

RIVER VALLEY VENTURES LIMITED

Appellant

v

MARITIME NEW ZEALAND

Respondent

Hearing:         30 November 2010 (Heard at Wellington)

Counsel:         A Darroch for Appellant

B D Vanderkolk for Responent

Judgment:      17 December 2010

JUDGMENT OF SIMON FRANCE J

Introduction

[1]      River Valley Ventures  Limited (River Valley) appeals its convictions  on three charges under the Health and Safety in Employment Act 1992 (the Act).

[2]      River Valley runs a rafting operation on the Rangitikei River.  The river has areas of rapids which are graded at the highest level of dangerousness on which

commercial operations are permitted.

RIVER VALLEY VENTURES LIMITED V MARITIME NEW ZEALAND HC PMN CRI 2010-454-15  17

December 2010

[3]      On the day in question River Valley’s customers were spread across two rafts, with two guides in each raft.   When proceeding through a set of dangerous rapids one of the rafts missed its intended course and became temporarily stalled near a rock.  The second raft was following close behind.  It too was propelled in the same direction with the result that it ran into the first raft.

[4]      The occupants were thrown into the water.   All the customers were pulled back into the raft.   However, the junior of the two guides in the second raft had apparently moved higher on the raft in an attempt to stop it tipping.  This meant he was thrown into the water from a greater height, and consequently went deeper into the water.   He must have become trapped  under water,  and he drowned.   The deceased was an experienced rafter who was on the trip in order to progress certification as a guide for these more dangerous rapids.

[5]      As a consequence of the death, River Valley faced various charges.  Three convictions were entered in the District Court:  first, failing to take all practicable steps to ensure the safety of its employees at work; and second, being in control of a workplace, failing to take all practical steps to ensure that no hazard arose which harmed people.   In relation to this second offence, separate charges were laid in relation to employees on the one hand, and customers on the other.  Hence the two convictions.

Decision under appeal

[6]      Under  the  relevant  legislation,  River  Valley  was  required  to  have  a procedures manual known as the Standard Operating Procedures Manual (“SOPM”). The manual set out how all the activities of the business would be approached.  It contains detailed plans for how specific parts of the river will be tackled.

[7]      Concerning the rapid in question, the SOPM appeared to contemplate that a “safety kayaker” would be used.   A safety kayaker, in the circumstances of this event, would involve taking one of the four guides out of one of the rafts and putting them in a stand alone kayak.   This person would then be in a position to act as spotter, and would allow separation between the rafts by acting as lookout to tell the

second raft when it was free to enter the rapid.  An alternative would otherwise be to have a fifth guide.

[8]      River Valley disputed that the SOPM meant it had committed itself to using a safety kayaker.   It argued the terms of the SOPM were intended to be, and were, discretionary.  The final decision was one for the senior guide on the day, and there were good reasons for following the method chosen on the particular day.  As earlier noted this method was to put two guides in each raft, and for the two rafts to then enter closely in line, in what is sometimes called the truck and trailer method.

[9]      Concerning the primary charge of failing to take all reasonably practicable steps, the District Court held (I am here using a summary from the sentencing remarks):

[9]       Here there were a number of steps that were not taken, ..., and these were:

a)        The failure to use the safety kayaker, or raft, or other water based safety vessel on the particular trip, and the absence of any land based cover.

b)The role of the safety kayaker was insufficiently clearly, or insufficiently fully, explained in the safety operating procedures.   Certainly the effect of this was to allow an interpretation of the SOP leading to a failure to comply with it on the occasion of the particular day in respect of the Fulcrum rapid hazard, and the Fulcrum Rock when the river flow level was at 36 cubic metres a second.

c)And then finally, on that day, the use of the practice of “close truck and trailer” for two rafts to negotiate the rapid. That should not have been allowed to happen because there was  a  known  outcome  from an  identified  and  applicable hazard when the second raft enters the rapid before the first raft had left it.

[10]      Had proper steps been taken, the risk of raft tipping or colliding would have been reduced or minimised.   In particular the absence of any signalling which might have been enabled by a safety kayaker, or any land based person in the area from the lower craft or otherwise together with the failure of the second raft to have ensured in the close truck and trailer formation that the first raft had safely negotiated the Fulcrum Rock before it entered upon the same piece of water.

[11]     So, those are the charges, and those were the reasons why those charges were established.

[10]     Concerning the other two charges, s 16(1)(a) and (b) of the Act reads:

16       Duties of persons who control places of work

(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):

(b)      People who are lawfully at work in the place— (i) As employees of the person; or

(ii)      As contractors engaged by the person; or

(iii)      As  subcontractors to  a contractor engaged  by the person; or

(iv)      As  employees  of a contractor or subcontractor to whom   subparagraph   (ii)   or   subparagraph   (iii) applies.

[11]     The Act defines persons who control a place of work as being:

Person who controls a place of work in relation to a place of work, means a person who is –

(a)The owner, lessee, sub lessee, occupier, or person in possession, of the place or any part of it; or

(b)       The owner, lessee, sub lessee, or bailee, of any plant in the place:

[12]     Place of work is itself defined:

Place of work means 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; (not applicable) 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; (not applicable) or

(c)Through which the employee may or must pass to reach a place of work: (not applicable)

[13]     It appears this was the first case that suggested a river might be a place of work under someone’s control.  The court distinguished Court of Appeal authority that had held the Rangitoto Channel in the Waitemata Harbour was not controlled by a dive company working there.  In the present case the court considered it significant that the company had worked the river since 1982 and was the only commercial operator on it (as a matter of fact rather than by dint of holding any exclusive use rights).  Accordingly, the rapid in question was held to be a place of work under the control of River Valley, a conclusion River Valley challenges.

Appeal decision

Issue one – conviction under s 6 of the Health and Safety in Employment Act 1992, being that River Valley failed to take all practicable steps to ensure the safety of its employees

[14]     The full judgment under appeal, and the focussed submissions of counsel, enable a relatively brief discussion.   Mr Vanderkolk indicated that the prosecution was intended to be, and was, sourced in the terms of the SOPM.  He submitted it is generally impossible in these cases for a prosecuting authority to seek to establish criminal liability by convincing the decision maker of a best practice to the exclusion of all others.  Accordingly he had not sought to “win” the dispute between experts as to the validity of the truck and trailer technique.

[15]     Rather the prosecution position was that in its SOPM River Valley had bound itself to the use of a safety kayaker.  Had it done this, the second raft would not have entered the rapid until the first had exited.   It was this failure to follow its own prescribed procedure that meant it had not taken all practicable steps.

[16]     Before assessing whether the appellant is correct that the prosecution did not establish this proposition to the required standard, it is necessary to make some related points.   The evidence called on behalf of the defence included an expert witness, Mr Grant South.  On paper he appears to me to be at least as well qualified to give his evidence as the prosecution expert, and arguably more so in that his experience seems more directly related to the situation in issue.

[17]     The thrust of Mr South’s evidence is that the method followed on the day was an acceptable decision.   Mr South disputed the evidence of the prosecution expert concerning  the  prevalence  or  necessity  of  the  safety  kayak  option.    He  was challenged on his evidence by the informant.

[18]     I do not propose to discuss the evidence in detail.   I consider that, unless rejected by a Court, it must have been such as to raise at least a reasonable doubt about the correctness or otherwise of what happened on the day.   The judgment under appeal does not analyse this evidence, nor does it make any credibility assessments concerning it.  In the absence of reasons why the evidence should not be seen as raising a doubt, I consider that as regards the decisions made at the time, it represents a reasonable doubt.

[19]     That means that the only way the prosecution can succeed is to establish that the  method  chosen  on the  day was  not  an  available  option  because  the  SOPM prohibited it, and allowed of only one method, namely the use of a safety kayak.

[20]     There was disputed evidence as to whether the SOPM was mandatory as regards using a safety kayaker, or optional.  The wording of the SOPM is at times internally inconsistent, and certainly not precise.   In fairness, however, it is to be noted that it is essentially an internal document for the use of the company and its employees, albeit one required by legislation.  It is not intended to be published.

[21]     Mr Vanderkolk took as the starting point of his analysis the final part of the document – what is called the “Hazards Master List Index”.   In relation to the Fulcrum Rapid, the Hazards Master List:

a)        identified the physical hazards in that rapid;

b)        identified the potential outcomes of those risks:

Flip/Wrap followed by swimmers

Some potential for swimmer recirculation below

15 m3/s Flips/dump trucks Raft surfs/flips;

c)        described what steps a guide should take before the trip;

d)described what actions would be taken to proceed through the rapid: Photographer/Safety Kayaker to be in car park

Strongest boats to run 1st and 2nd, set cover at bottom.

[22]     The prosecution position is that when one reads the document as a whole, this trip action is mandatory and requires:

a)        that there be a safety kayak;

b)        that the safety kayak is stationed in the car park.

[23]     To explain, the car park is a quiet spot in the rapid.  The idea is that the safety kayak would signal to the second raft when the first was clear, thereby eliminating the risk of a collision as happened here.[1]

[1] I have chosen not to set out the other risks that are not addressed by a safety kayak but which (arguably) are lessened by the “two guides to a raft/truck and trailer” approach.  Suffice to say that whilst a safety kayak has some advantages, there are alternative views that suggest having the second rafts following close by in order to be able to get ahead of people thrown into the water is more important.

[24]     As noted the competing view, with evidence in support, is that the SOPM is intended to be discretionary, and has always operated that way.  The Master Hazards

List is to be read as saying that when there is a safety kayak, this is where it is to be.

[25]     The defence called two witnesses involved in running the company.   Each said the SOPM was discretionary, and was known to be.   Further, the witnesses noted that the SOPM is audited annually by Maritime NZ.  Both witnesses say that the auditor was aware of River Valley’s interpretation and was aware that River Valley treated it as a day by day decision for the senior guide.  The audits, which formed part of the evidence, were favourable to the company.  Finally, one witness, the senior guide Mr Gould, thought it likely that the auditor had gone on a rafting trip during the last audit when a safety kayak would not have been used.

[26]     The thrust of this defence evidence was summarised by the Judge in this way:

... The need for, and utility of such is argued for and against by the expert witnesses, and it is clear that the flavour of the defendants’ evidence is that on their river, they believe their experience to show that such is unnecessary, and even unsafe for a safety kayaker, in some circumstances.

[27]     As noted, the two experts read the document differently from each other and in a manner supportive of the party calling them.  The prosecution expert accepted he could be reading it differently from how the auditor may have.

[28]     Concerning this issue, the District Court held [41]:

In  this  regard,  it  is  insufficient  to  say  that  SOP  and  the  whiteboard  is flexible, and its use is optional.  It provides the usual prescription, the default position, and the use of such things as the safety kayaker.  It is altogether another thing to adopt, more or less as a practice, over a period of time the no safety kayaker, truck and trailer, raft covers raft routine as the default or usual mode of running a raft convoy.  Moreover, there is no or no sufficient evidence on which the Court can rely that that practice was condoned by Mr Sonneveld   specifically;   it   was   certainly   not   the   subject   of   any amendment to the SOP or the whiteboard.  Then there was the evidence of the two experts, which differed in respect of the suitability of the photographer/safety kayaker as a safety/cover mechanism.  There are deep differences from a philosophical point of view about their utility and even safety, but it is strictly not necessary for me to go into this.  However, the evidence of Mr Crawford and Mr Megaw, notwithstanding some criticism of the utility of a safety kayak, and now apparently with the same not being used in some rivers for the purposes foreshadowed by the SOP and hazard whiteboard here, acknowledge that they do provide an extra layer of safety, and have the traffic-signalling function.  The evidence pointed this way by the re-adoption after the incident on 20 October 2007 of the safety cover principles as laid down, together with what appeared to be the immediate consequences in terms of the amendments to the hazard whiteboard.  In the end, the evidence of timing of these changes was inconclusive.

[29]     Turning to the SOPM, Mr Vanderkolk identified several parts that he submits support the proposition it is mandatory.  First, [6.5a] describes the role of the safety kayaker in a way that contemplates such a person will actually exist.  Second, [9.6a] identifies situations where a safety kayaker “may” be used.  One of these was when the water flow is at the level it was on the day in question.  Next, in relation to the rules applying to convoys, [9.19(b)] says:

All guides shall ensure the raft in front has safely cleared the rapid prior to entering the rapid to avoid unnecessary collisions.

It continues that the safety kayaker is to remain part of the convoy.

[30]     Finally [9.19d] is written in a way that contemplates the second raft will not have entered until the first is at the base of the rapid.

[31]     There is undoubtedly merit in the prosecution’s interpretation, which was accepted by the District Court.  My concern is that if departure from a mandatory procedure is the sole basis for the conviction, as in this case in my view it must be, then  I am  much  less  satisfied  that  the  matter  has  been  proved  to  the  criminal standard.

[32]     The SOPM is not clear.  It is a process of inference and there is no definitive statement that a safety kayaker is to be used.  Other evidence could of course clarify this ambiguity but it is here that I consider the prosecution is lacking.  All the other evidence goes the other way; in particular that of River Valley’s two witnesses.  I do not overlook that they obviously have an interest in the matter, but their evidence was supported by an experienced expert.  Further, it was alleged, and not countered that the informant, Maritime NZ, knew and accepted that this was how the document was applied.

[33]     This last fact must be telling.  It was open to Maritime NZ to call evidence countering this.   If the auditor is not available, then more general evidence would need to suffice.  None was called.  The situation therefore seems to be this:

a)       the SOPM favours the prosecution but is not definitive and does also use discretionary language (may);

b)        there  is  no  direct  evidence  from  the  prosecution  that  the  Master

Hazard List is intended to be mandatory in its processes;

c)       there is direct evidence from the defendants it is not so intended.  This evidence has expert backing;

d)further, there is evidence, allowed to be called, that the informant’s auditor, who is directly responsible for the safety procedures, knew of and at least acquiesced in the defendant’s reading of the SOPM.

[34]     In these circumstances it seems to me one could not be sure the requirement for a safety kayaker was mandatory.  If not so sure, then the prosecution is left to establish that the process adopted on the day, in itself, was flawed such as to amount to a breach of s 6 of the Act.  For reasons already given, I consider the evidence falls well short of achieving that.

[35] It is necessary to refer back to the passage cited from the judgment under appeal at [28] above.[2]   It is to be observed that one can have concerns about whether the standard of proof is being properly applied.  The onus is on the prosecution to the criminal standard.   It is not the defendant’s job to satisfy the Court that its interpretation of the SOPM was condoned.  It is the prosecution’s task to establish beyond  reasonable  doubt  the  safety  kayaker  was  a  mandatory  requirement.    I

understand of course that the Court would be aware of the onus, but am concerned it is nowhere mentioned in the judgment.

[2] Mr Sonneveld referred to in the passage is the Maritime NZ auditor in question.

[36]     Further, as previously noted, the judgment contains no analysis of why the defence evidence as a whole is insufficient to raise a reasonable doubt.  In my view the prosecution has not met the criminal standard.  One cannot be sure the SOPM mandated the use of a safety kayaker.   Its wording is ambiguous and the defence evidence increases that uncertainty.

[37] The District Court gave three reasons for convicting River Valley (cited at [9] above). The first was that the SOPM required a safety kayaker. As noted, I do not consider that is established to the appropriate standard. The third was that the truck and trailer system was inappropriate. That conclusion may just be an application of the earlier conclusion that a safety kayaker, which would not involve this method, was needed. If not, again I do not agree. Absent a finding that the defence evidence was to be disregarded, it had to establish a reasonable doubt on this point.

[38]     The second reason was the poor wording of the SOPM.  I do not view this as sufficient.  If worded better it may have been plain, as the defendant alleged, that the use of the safety kayak was optional.  The wording of the SOPM, which has after all been audited by Maritime New Zealand, cannot be a stand alone basis for liability in relation to this accident.

[39]     On this charge the appeal is allowed and the conviction quashed.

Issue two – the convictions under s 16(1)(a) and (b) of the Act, with the place of work being the Fulcrum Rapid

[40]     I begin by noting alternative charges based on the raft being the place of work were dismissed and are not before me.

[41]     In Department of Labour v Diveco Limited[3] Diveco were employed to collect sediment samples from the seabed.   The defendant company provided diving and support  personnel  to  take  the  samples,  and  to  determine  the  depth  of  the  soft sediment.   The method used was “bounce diving” which apparently lessens the amount  of  time  a  diver  spends  at  the  surface.    The  diver  in  question,  as  a consequence of this technique, suffered from decompression illness.  He recovered but the period of illness was the basis for the charge.

[3] Department of Labour v Diveco Limited (2004) 2 NZELR 72 (CA.

[42]     The Court of Appeal judgment focussed on the issue of whether Diveco was a person controlling the place of work as required by s 16(1)(a).   The Court held (at [28]) that:

the definition requires something more than mere occupation for a short period of time of a particular area, in circumstances where the occupier does not assert, and has no right, to exclude others from the area.

[43]     The District Court distinguished Diveco on the basis of the regularity with which  River Valley  uses  the  river,  and  the  fact  of  exclusive  use.    The  Court observed:

[49]     These elements involving the length of time in the place, a defined area, current and long held intimate and detailed knowledge, asserted stewardship, and generally, absence of others, are sufficient to distinguish the circumstances of this case from Diveco.  I find this part of the river and the Fulcrum Rapid to be a place of work, being under the control of River Valley, and Mr Megaw.

[44]     In giving these reasons the Court is plainly giving emphasis to the Court of Appeal’s reference to “mere occupation for a short period of time”.  It is a legitimate contrast but one could debate whether River Valley’s occupation is any longer.  It is repeated more often but the period it occupies the Fulcrum Rapid is obviously very brief.

[45]     In Diveco the Court referred to not straining the language of s 16 to make the section fit an inapt situation.  That danger exists here.  The key concept in the section is control; the fact that control is defined to include an occupier does not mean, as Diveco shows, that occupation per se is enough.   The length and nature of that occupation must be relevant, and it is very difficult to conceptualise that River Valley controls the Fulcrum Rapid.  It does not and cannot control flow or conditions nor can it control who uses or goes through the rapid.

[46]     Certainly River Valley uses the river, and does things consistent with control such as removing debris.  But overall I am far from satisfied it can be said it controls the rapid.  It cannot give directions in relation to it, nor exercise any authority over it. Nature is the sole determinant of the rapid’s conditions and the public is entitled to use it with or without River Valley’s say so.

[47]     Given these features, I accept the appellant’s submission that its use of the river is not enough to meet the statutory requirement of control.  I therefore question these convictions as well.

Conclusion

[48]     The appeal is allowed in relation to all three convictions, which are quashed.

Simon France J

Solicitors:

A Darroch, Duncan Cotterill, PO Box 827, Nelson, email: a[email protected]

B D Vanderkolk. Ben Vanderkolk & Associates, PO Box 31, Palmerston North Central, 4440, email:  [email protected]