Taylor Preston Limited v Ministry of Business, Innovation and Employment
[2013] NZCA 537
•4 November 2013 at 2.30 pm
| IN THE COURT OF APPEAL OF NEW ZEALAND |
| CA458/2013 [2013] NZCA 537 |
| BETWEEN | TAYLOR PRESTON LIMITED |
| AND | THE MINISTRY OF BUSINESS, INNOVATION AND EMPLOYMENT |
| Hearing: | 25 September 2013 |
Court: | Ellen France, Priestley and MacKenzie JJ |
Counsel: | K B Johnston and T P Cleary for Applicant |
Judgment: | 4 November 2013 at 2.30 pm |
JUDGMENT OF THE COURT
The application for leave to appeal is dismissed.
____________________________________________________________________
REASONS OF THE COURT
(Given by MacKenzie J)
Taylor Preston Ltd (Taylor Preston) was convicted following a summary trial before Judge Mill in the District Court at Wellington on a charge under s 6(d) of the Health and Safety in Employment Act 1992 of failing to take all practicable steps to ensure the safety of an employee.[1] An appeal to the High Court was unsuccessful.[2] That Court refused leave to appeal.[3] Taylor Preston seeks special leave to appeal from this Court.[4]
[1]Department of Labour v Taylor Preston Ltd DC Wellington CRN 11085501601, 29 October 2012.
[2]Taylor Preston Ltd v The Ministry of Business, Innovation and Employment [2013] NZHC 937.
[3]Taylor Preston Ltd v The Ministry of Business, Innovation and Employment [2013] NZHC 1594.
[4]Summary Proceedings Act 1957, s 144(3).
The charge arose from an incident at Taylor Preston’s Wellington meat processing plant in which an employee was injured when he attempted to clear a machine designed to remove membrane from lamb meat. The employee’s hand became entangled with the machine and two of his fingers were subsequently amputated.
Taylor Preston employed fitters and cleaners who were trained to clear out debris that became clogged in the meat processing machine. The actions of the employee were not approved by Taylor Preston and were contrary to his training. The employee knew that if he had been caught doing what he did on the day of the incident, he would have faced disciplinary action. He and another employee habitually cleaned the machine in that way, despite their instructions. The management of Taylor Preston had not been alerted to this unauthorised practice.
The information alleged a failure to take all practicable steps, but did not particularise the step or steps which should have been taken. Following correspondence between counsel, particulars of the practicable steps alleged by the informant were given. These included the step of fitting a guard across the opening into which the employee put his hand. They did not include the step of providing greater supervision to ensure that the employees did not adopt the hazardous and unauthorised practice.
The trial Judge found that it was not proved that Taylor Preston knew of the practice, but that it should have been aware of it.[5] His Honour held on the evidence that the practice should have been easily discovered by Taylor Preston through its supervisors a long time before the accident.[6]
[5]Department of Labour v Taylor Preston Ltd, above n 1, at [89].
[6]At [92].
The Judge then said:
[93] It should have then taken practical steps to achieve a result to ensure the operator’s safety while at work. That would have included the training of supervisors in practices that would have led to proper oversight and the observing of such a blatant routine and also to the guarding of the machine to prevent access whilst it was in operation.
The grounds of appeal in the High Court were described by Collins J in these terms:[7]
[19] Mr Cleary, counsel for Taylor Preston, set out six grounds of appeal in the notice of appeal. Those grounds were, however, carefully distilled by Mr Cleary into the following two points:
(1)The informant did not identify an alleged failure to supervise [the employee] as a particular of the charge. As a result, Taylor Preston did not adduce evidence about whether supervision would have in fact resulted in [the employee’s] unsafe practices being detected.
(2)It was not open on the evidence for Judge Mill to conclude that improving supervision of [the employee] would have resulted in Taylor Preston discovering [the employee] was carrying out his unauthorised cleaning of the machine. There was therefore no causal link between the practicable step and the employee’s exposure to the relevant hazard.
[7]Taylor Preston Ltd v The Ministry of Business, Innovation and Employment, above n 2.
On the first ground, Collins J held that the trial Judge had identified two independent practicable steps which Taylor Preston ought to have taken: greater supervision and installing a safety guard.[8] Although the first step had not been particularised, the second step had, and this was a sufficient basis for the conviction.
[8]At [28].
On the second ground, Collins J held that the evidence before the trial Judge was more than sufficient to enable the trial Judge to conclude as a fact that Taylor Preston did not have in place adequate supervision of the employee, and to infer that adequate supervision would have deterred the employee from his unsafe practices.[9]
[9]At [38].
Under s 144(3) of the Summary Proceedings Act 1957, special leave to appeal to this Court may be granted only if:[10]
(a)the application identifies one or more questions of law;
(b)the question is one that ought to be submitted to the Court by reason of general or public importance or for some other reason; and
(c)the Court is of the opinion that the question(s) ought to be submitted.
[10]R v Slater [1997] 1 NZLR 211 (CA) at 214–215; R v Connelly [2007] NZCA 412 at [3].
These criteria are to be strictly applied.[11]
[11]R v Slater, above n 10, at 215; Mackenzie v Legal Services Commissioner [2013] NZCA 326 at [14].
The questions of law proposed for this Court are formulated in the application for leave as follows:
1.Was there a breach of natural justice when Judge Mill convicted the defendant based on inadequate supervision, having regard to the fact that inadequate supervision had not been alleged by the informant and was not the subject of evidence? and/or
2.Did the High Court err in the appeal under s 115 of the Summary Proceedings Act 1957 misconstruing the basis on which the District Court entered a conviction and not reaching its own conclusion as to whether there were proper evidential and legal bases for the conviction?
In question 1, the essence of the submission that there was a breach of natural justice is that Taylor Preston was not alerted to the possibility that its supervision arrangements were in question in the proceeding.
Two elements of the offence were particularly in issue at trial. These were whether Taylor Preston:
(a)knew or ought reasonably to have known about the circumstances involved in the incident; and
(b)had taken all practicable steps to ensure that employees were not exposed to the hazard which led to the incident.
The adequacy or otherwise of Taylor Preston’s supervision of its employees was relevant to both elements of the offence. It was relevant to whether Taylor Preston ought reasonably to have known of the hazardous and unauthorised practice which its employees were adopting. It was also potentially relevant as a practicable step to avoid exposure to the hazard, in that greater supervision might have prevented the employees from carrying on that hazardous and unauthorised practice.
The first element, whether Taylor Preston ought reasonably to have known of the unauthorised practice, required an assessment of the circumstances. The extent of supervision was clearly a relevant circumstance, to be assessed in the light of the evidence. While it appears that the informant relied primarily on actual knowledge, the “ought to have known” limb of the test was also in issue. That was not a matter on which particulars were, or could have been, required. It was for Taylor Preston to decide what evidence might be relevant to that limb. No issue of natural justice arises in respect of the first element of the offence.
On the second element, whether Taylor Preston had taken all practicable steps, Collins J said:
[30] Although the informant did not particularise the first practicable step explained in [28](1) above, this made no difference to the outcome, as Taylor Preston were found to be liable on two independent bases. If it was convicted solely on the greater supervision ground, I would have been minded to order a rehearing in the District Court to allow further evidence to be adduced on that point. However, such a step is unnecessary when the conviction is able to stand solely on Taylor Preston’s omission to install a guard.
Collins J’s inclination to remit the case for further hearing if inadequate supervision had been the sole basis for liability suggests that his Honour accepted that any practicable step which resulted in conviction should have been particularised. The decision that the conviction is able to stand solely on Taylor Preston’s omission to install a guard means that the answer to the first question of law proposed would not affect the outcome in this case. Installation of a guard was identified as a practicable step. The failure to identify supervision as a practicable step did not, on Collins J’s findings, affect the outcome. The essential issue on appeal would be whether Collins J was correct to find that there were two independent bases for liability. The first proposed question does not address that issue.
The first part of the second proposed question of law (that is, whether the High Court misconstrued the District Court decision) is in essence a challenge to the finding of Collins J to which we have just referred. Collins J, has, in our view, correctly interpreted Judge Mill’s decision set out above at [6]. But, to the extent that it might be arguable that he has misconstrued the basis of the conviction, that issue is confined to the facts of this case. It is not a question of law of general or public importance.
The second part of the proposed question is whether the High Court erred in not reaching its own conclusion on the merits. Collins J held that the practicable step of installing a guard “was fairly found not to have been taken”.[12] Any challenge to the sufficiency of that finding is also confined to the facts of this case and does not raise a question of law of general or public importance.
[12]At [32].
For these reasons, the application for leave to appeal is dismissed.
Solicitors:
Crown Law Office, Wellington for Respondent
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