Taylor Preston Limited v Ministry of Business, Innovation and Employment

[2013] NZHC 1594

IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY

CRI-2013-485-000006 [2013] NZHC 1594

IN THE MATTER OF       an appeal under s 116 of the Summary

Proceedings Act 1957

BETWEEN  TAYLOR PRESTON LIMITED Applicant

ANDTHE MINISTRY OF BUSINESS, INNOVATION AND EMPLOYMENT Respondent

Hearing:                   14 June 2013

Counsel:                  T P Cleary for Applicant

I R Murray and J A Eng for Respondent

Judgment:                28 June 2013

RESERVED JUDGMENT OF COLLINS J [Application for leave to appeal]

Introduction

[1]      On 1 May 2013 I dismissed Taylor Preston Ltd’s (Taylor Preston) appeal

against its conviction for breaching s 6 of the Health and Safety in Employment Act

1992 (HSE Act).

[2]      Taylor Preston has applied for leave to appeal my decision.  Taylor Preston must therefore establish that its proposed appeal involves a question of law which, by reason of its general or public importance or for any other reason, ought to be

submitted to the Court of Appeal.1

1      Summary Proceedings Act 1957, s 144(2).

TAYLOR PRESTON LIMITED v THE MINISTRY OF BUSINESS, INNOVATION AND EMPLOYMENT [2013] NZHC 1594 [28 June 2013]

Charge and conviction

[3]      Taylor Preston were prosecuted for breaching the HSE Act after an employee suffered an injury when he placed his hand into a meat skinning machine in order to clean debris that had built up in the machine.

[4]      It was established before Judge Mill in the District Court that the employee’s actions were contrary to his training and that he knew that if he had been caught cleaning the machine in the way he attempted to do on the day of his accident, he would have faced disciplinary action.  It was also established in the District Court that the employee (and another employee) regularly cleaned the skinning machine in the way which was attempted at the time of the accident.

[5]      Judge Mill found that the management of Taylor Preston had not been alerted to its employees’ regular practices of cleaning the machine in the way that was attempted.  However, Judge Mill also found that:2

...  An operator regularly kneeling and working as [the employee] described under the machine would have been something a supervisor should have seen over several months and recognised as the hazard it was.

...

The   routine   was   one   that   should   have   been   easily   discovered   by [Taylor Preston] through its supervisors a long time before the accident and the discovery of it would have alerted [Taylor Preston] to the hazard which led  to  the  accident.     Accordingly  while  I  cannot  say  for  sure  that [Taylor Preston] through its management or supervisors knew of the hazard it ought reasonably to have known.

[6]      Taylor Preston was charged under s 50 of the HSE Act for failing to comply with the requirements of s 6(1)(d) of that Act which provides that:

6         Employers to ensure safety of employees

Every employer shall take all practicable steps to ensure the safety of employees while at work; and in particular shall take all practicable steps to—

...

2      Department of Labour v Taylor Preston Ltd DC Wellington CRN 11085501601, 29 October

2012 at [89]-[92].

(d)      Ensure that while at work employees are not exposed to hazards arising out of the ... use of things—

(i)       In their place of work ...

[7]      Section 2A(1) of the Act provides that:

...

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.

[8]      Importantly, s 2A(2) of the Act provides:

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.

[9]      Judge Mill concluded that Taylor Preston had failed to take all practical steps to ensure its employee was not exposed to harm arising out of the use of the skinning machine.

[10]     This conclusion was based on Judge Mills’ finding that Taylor Preston “ought reasonably to have known” of the dangerous practices of its employees of inserting their hands in the skinning machine to clear out debris.   Judge Mills said that if Taylor Preston had known of those risks:3

It  should  have  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.

3 At [93].

The appeal to the High Court

[11]     Taylor Preston identified six grounds of appeal in its notice of appeal.  Those grounds were however reduced to two points:

(1)that the Department of Labour did not identify an alleged failure to supervise Taylor Preston’s 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 its employee’s unsafe practices being detected.

(2)it was not open on  the evidence for Judge Mill to conclude that improving supervision of Taylor Preston’s employee would have resulted in Taylor Preston discovering its employee was carrying out his unauthorised cleaning of the machine.   There was therefore no causal link between the practical step and the employee’s exposure to the relevant hazards.

[12]     In relation to the first ground of appeal, in my judgment I concluded that although the Department of Labour did not particularise that Taylor Preston should have properly supervised its employee, this made no difference to the outcome of the prosecution as Taylor Preston was found to be liable on two independent bases.  I determined that if Taylor Preston had been convicted solely on the basis of its failure to supervise its employee I would have been minded to order a rehearing in the District Court to allow further evidence to be adduced on that point.   However, I concluded such a step was unnecessary because Taylor Preston’s conviction was able to stand on the ground that Taylor Preston had failed to install a suitable guard on the skinning machine.

[13]     Taylor Preston’s second ground of appeal was that there was not sufficient evidence to enable Judge Mill to conclude that had there been greater supervision of its  employee,  then  his  unsafe  work  practices  would  have  been  detected  and addressed.

[14]     I concluded that the evidence before Judge Mill was more than sufficient to enable him to:

(1)determine that as a fact Taylor Preston did not have in place adequate supervision of its employee;  and

(2)infer that adequate supervision would have deterred the employee from undertaking his unsafe practices.

Proposed ground of appeal

[15]     Taylor Preston have posed the following question:

In an appeal under s 115 of the Summary Proceedings Act 1957 involving a question of law, is it open to the High Court in dismissing the appeal, to reformulate the basis for conviction as determined by the District Court?

[16]   In advancing this question Taylor Preston have submitted that I have misconstrued the basis upon which Judge Mill convicted Taylor Preston and that my misunderstanding of Judge Mill’s reasoning constitutes an error of law.

[17]     Taylor Preston say that Judge Mill actually decided that Taylor Preston’s failure to supervise its employee was inextricably linked to Taylor Preston’s failure to install a safety guard on the skinning machine.   It says it was implicit in the Judge’s  reasoning  that  only  a  greater  level  of  supervision  would  have  alerted Taylor Preston to the need to install a guard to ensure the safety of the operators of the machine.  Taylor Preston says that it was wrong of me to have “reformulated” Judge Mill’s decision so as to lead to my conclusion that Judge Mill convicted Taylor Preston on two independent bases, and that the conviction for failing to install a guard could still stand regardless of the validity or otherwise of the finding that there was inadequate supervision.

[18]     Mr Cleary, counsel for Taylor Preston, explained what he submitted was my error  by  reference  to  an  analogy.     He  said  that  Judge  Mill  concluded  that Taylor Preston’s failure to supervise its employee and its failure to install a guard on the skinning machine were like a “truck and trailer unit”.  By this Mr Cleary meant

that  there  were  two  interconnected  parts  to  Taylor  Preston’s  failure  to  take  all practical steps to ensure its employee was not exposed to harm in the workplace, namely  failure  to  supervise  its  employee  and  failure  to  install  a  guard  on  the machine.  Mr Cleary said that I had erred by reconstructing Judge Mill’s judgment in a way that resulted in the “truck being separated from the trailer” thereby leading to the erroneous conclusion that just one of those steps was sufficient to support the conclusion that Taylor Preston had failed to take all practical steps to ensure its employee was not exposed to hazards in the workplace.

Does the proposed appeal raise a question of law that should be submitted to the

Court of Appeal?

[19]     I accept that if an appellate court misconstrues the legal basis upon which a trial court has convicted an appellate, that in itself might constitute an error of law. However, in this case, Taylor Preston poses as  a question of  law whether it is possible for an appellate Judge to “reformulate” the basis upon which an appellant was convicted.

[20]     I do not think that Taylor Preston’s proposed appeal raises a question of law that should be submitted to the Court of Appeal because it is unrealistic to claim an appellate court cannot “reformulate” the basis upon which a conviction was entered, where the appellate court bases its conclusion on the evidence that was before the trial  Judge.    To  suggest  otherwise  involves  constraining  appellate  courts  to  a formulaic exercise that is quite foreign to the way in which appeals are actually dealt with.

[21]     I do  not  think  the proposed question  of law can  be reconciled  with  the Supreme Court’s judgment in Austin, Nichols & Co Inc v Stichting Lodestar,4  in which their Honours emphasised that when general rights of appeal are exercised the appellate court  must  make its  own assessment of the merits of the  case.   This approach can involve appellate Judges “reformulating” the basis upon which an

appellant is convicted if the conviction is to be upheld.

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

[22]     For these reasons I have reached the conclusion that the proposed ground of appeal does not meet the criteria set out in s 144 of the Summary Proceedings Act

1957.

[23]     During the course of his submissions, Mr Cleary raised the possibility of me recalling my judgment.   This point was not pursued with vigour when I informed Mr Cleary that I would take a lot of persuading that this was a case that satisfied the criteria for a recall of judgment.

Conclusion

[24]     I am dismissing the application for leave to appeal.  Taylor Preston may of course seek special leave from the Court of Appeal to appeal my judgment.

D B Collins J

Solicitors:

P H Mitchell, Wellington for Applicant
Crown Solicitor, Wellington for Respondent