Singh v Worksafe New Zealand

[2015] NZHC 2168

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CRI-2015-404-000207 [2015] NZHC 2168

BETWEEN

RANJIT SINGH

Appellant

AND

WORKSAFE NEW ZEALAND Respondent

Hearing:	7 September 2015
Appearances:	R M Mansfield for Appellant E T Fletcher for Respondent
Judgment:	8 September 2015

JUDGMENT OF COURTNEY J

This judgment was delivered by Justice Courtney on 8 September 2015 at 4.00 pm

pursuant to r 11.5 of the High Court Rules

Registrar / Deputy Registrar

Date……………………….

SINGH v WORKSAFE NEW ZEALAND [2015] NZHC 2168 [8 September 2015]

Introduction

[1]       Ranjit Singh is the director of a company that was involved in construction work on an Onehunga site in March 2014.  Asbestos was detected on the site and on

14  March  2014  Worksafe  New  Zealand  issued  a  prohibition  notice  requiring Mr Singh to stop all work on the site.  On 22 March 2014 Mr Singh went to the site with a contractor and removed a ramp.

[2]      Following  a  defended  hearing  before  Judge  Taumaunu  in  the  Auckland District Court Mr Singh was convicted on one charge of failing to ensure that no action was taken in contravention of the prohibition notice.1   Judge Taumaunu fined Mr Singh $25,000 and imposed court costs of $135.00.  Mr Singh appeals both his conviction and sentence.

[3]      The appeal against conviction was advanced on the grounds that the Judge erred in finding that:

(a)       Mr Singh had not sought permission to remove the ramp; and

(b)the removal of the ramp constituted work for the purposes of the prohibition notice.

[4]      For the reasons I give shortly, I am satisfied that the Judge did err in his assessment of the evidence to such an extent that a miscarriage of justice has occurred.2  As a result, it is unnecessary to consider the appeal against sentence.

Events leading to the charge

[5]      The evidence of what had happened came from a memorandum of agreed facts,  a written  statement  by the Worksafe inspector, Thomas  Beamer,  and  oral

evidence from Mr Beamer and Mr Singh.  It showed the following.

1      Health and Safety in Employment Act 1992, ss 43 and 50(1)(b).

2      Criminal Procedure Act 2011, s 232(2) and (4).

[6]      The  site  was  being  developed  by  Mr  Singh  (through  a  company  he controlled) and his son.   There had been a cottage on the site which Mr Singh intended to remove.   The contractor engaged to remove the cottage demolished it instead of removing it.  Dust and debris from the demolition work found its way onto neighbouring  properties.    A neighbour  raised  concerns  about  the  possibility  of asbestos being present on the site.  Initial testing for asbestos was positive.

[7]      The prohibition notice was issued on 14 March 2014 and the prohibition was intended to remain in place until further testing was carried out.   In his statement Mr Beamer said that he attached one copy of the prohibition notice to the site fence and handed the other to Mr Singh.  He then said:

Mr Singh asked me if he could remove the excavator and truck from site as they were required for work at another location.   I agreed to this request on the condition that the excavator and truck were washed down with water and all site debris removed from them before they left the site.  I explained the prohibition notice to Mr Singh and informed him that there was to be no further work of any kind after the excavator and truck were removed until the site was tested and declared free of asbestos.

[8]      Mr Singh arranged for the truck and excavator to be removed.  There was no evidence  as  to  when  they were removed  from  the site though  the tenor of the evidence suggests that it was either on or within a day or so of the prohibition notice being issued on 14 March.

[9]      On 17 March 2014 Mr Singh called Mr Beamer to ask if he could attend the site with a surveyor to undertake measurements.   He was told that he could not; Mr Beamer explained again that no work of any kind was to be carried out at the site because of the possibility of it being contaminated.

[10]     On 22 March Mr Singh went to the site with a contractor and removed a ramp.   The memorandum of agreed facts refers to a wooden ramp.   In argument Mr Mansfield,  for  Mr  Singh,  advised  that  it  was  actually an  alloy ramp.    This information was not contained in any affidavit and there was  no application to adduce evidence on the point but there was no objection to it.

[11]     Mr Beamer did not refer to the ramp in his statement or his oral evidence and was not cross-examined about it.  However, Mr Singh was cross-examined about the ramp.   He said that it was the contractor’s ramp and that it was used to load and unload the earthworks machinery, in particular the digger.  Mr Fletcher, for Worksafe New Zealand, accepted that the ramp was equipment associated with the truck and excavator.

The decision in the District Court

[12]     The Judge identified the central issue as being the interpretation of “work” for the purposes of the prohibition notice and recorded the defendant’s position as being that the actions of the contractor in removing the ramp did not amount to work in that context.

[13]     The Judge referred to the permission that Mr Beamer had given to remove the truck and excavator and the subsequent refusal to allow surveyors on the site.  He concluded that Mr Singh had not sought approval to remove the ramp because he anticipated being refused permission:3

In his evidence the defendant, Mr Singh, conceded under skilful cross- examination that removal of the truck from the work site was part of the work on the site.  This was after permission had been given by Mr Beamer. Although  this  concession  by  the  defendant  is  not  determinative  of  the ultimate question that the Court has to answer, it is highly relevant because it shows that the defendant sought permission from Mr Beamer after the prohibition notice was given to him but before he removed the truck and the excavator  from  the  work  site.    Strict  conditions  were  attached  to  the approval that was given by Mr Beamer that both vehicles had to be cleaned properly before removed.  No such approval was sought by the defendant for the removal of the ramp on 22 March.

In my assessment this is because the defendant, Mr Singh, had been refused permission by Mr Beamer on 17 March, only five days before the date that is the focus of the charge.  He had been refused permission by Mr Beamer to attend the site with surveyors and, given that refusal five days earlier, in my assessment Mr Singh anticipated he would not receive permission from Mr Beamer to remove the ramp on 22 March.  So he went ahead anyway and hoped he would simply get away with it without Mr Beamer finding out about it.

(emphasis added)

[14]     The Judge then turned to consider the meaning of the words “to stop all work”  in  the  prohibition  notice.    He  drew  on  a  definition  from  Black’s  Law Dictionary of “physical and mental exertion to attain an end, especially as controlled by and for the benefit of an employer; labour”.   The Judge concluded that the removal of the ramp required physical exertion.   He noted that the purpose of the ramp was to load and unload earthwork machinery and concluded that the removal

of the ramp constituted work so that it contravened the prohibition notice:4

The purpose of the prohibition notice was to prevent all activity on the work site to reduce the risk of harm caused by airborne asbestos particles.  The word  “work”  as it was contained in the  prohibition  notice given  to the defendant encompassed all physical exertion done in order to achieve a result on the work site and, in my assessment, was not limited to the purpose of earning a living.  Given the nature of the risk that was posed on that work site, all physical exertion done on the site in order to achieve a result would have been captured by the word “work” in the prohibition notice.

The appeal

[15]     In the District Court the focus of Mr Singh’s defence was the argument that, properly interpreted “work” in the prohibition notice did not encompass the removal of the ramp.  The same argument was advanced in the written submissions filed in advance of the  appeal.    However,  in  oral  argument  Mr Mansfield  advanced  an additional ground. There was no objection.

[16]     Mr Mansfield argued that the ramp was effectively part of the truck and excavator because the excavator could not be used until it had been removed from the truck and that required the use of the ramp.   So Mr Beamer’s permission to remove the truck and excavator extended to the ramp.  Further, Mr Beamer had not put any timeframe on the removal of the truck and excavator so that Mr Singh was acting within the scope of the permission by going to the site for that purpose on

22 March 2014.

[17]     Mr Fletcher accepted that the ramp was to be viewed as a piece of equipment associated with the truck and excavator and also acknowledged that the permission Mr Beamer gave on 14 March to remove the truck and excavator could have been

understood as including the ramp.  However, he made two main points in response to Mr  Mansfield’s  argument.    First,  he  said  that  the  possibility of  the  permission extending to the ramp had never been put to Mr Beamer in cross-examination and should therefore not be able to be raised now.  This is not an effective counter to the argument because there was no challenge to Mr Beamer’s evidence that would have required cross-examination.   Whether the permission Mr Beamer had granted extended to the ramp and whether it was limited to a particular timeframe could not be answered by Mr Beamer; they were questions for the Judge.

[18]     Mr Fletcher’s second response was that it was clear from the circumstances surrounding the issuing of the notice and the subsequent testing that the permission to remove the truck and excavator was limited to 14 March.  In particular, after that date testing results confirmed the presence of asbestos and Mr Beamer had specifically refused Mr Singh permission to go onto the site with surveyors.

[19]     I do not find this a persuasive response.  As Mr Mansfield pointed out, the presence of asbestos was already known when the notice was issued.   Later tests gave  greater  information  but  the  essential  facts  had  not  changed.    Nor  could Mr Beamer’s refusal to allow the surveyors on the site have any relevance.   On Mr Beamer’s  own  account  there  was  no  timeframe  placed  on  the  permission. Mr Beamer may have intended that the truck and excavator be removed immediately but he did not say so.   Refusing permission to take surveyors onto the site was insufficient to convey that the permission previously granted had been withdrawn. Nor was the reiteration of the effect of the notice at that time; something more would have been required to convey that the position regarding removal of the truck and excavator had changed.

[20]     The permission that Mr Beamer had given to remove the truck and excavator was a variation of the notice.5     On the evidence that variation extended to the removal of the ramp.   There was no time limit imposed.   There was insufficient evidence on  which  to  conclude that  the permission  had  been  withdrawn before

22 March 2014.   It was therefore not shown that the act on which the charge was

based was prohibited by the notice.

5      Health and Safety in Employment Act 1992, s 45.

[21]     Although this issue was live on the evidence, it is unfortunate that counsel did not raise it explicitly.  There can be no criticism of the Judge for not identifying it.

[22]     It is unnecessary to address the argument over whether “work” in the notice encompassed the act of removing the ramp; that could not affect the outcome that follows from my conclusion on the first ground of appeal.

Result

[23]     The appeal is allowed. The conviction is quashed.

P Courtney J