Taylor Preston Limited v Ministry of Business, Innovation and Employment
[2013] NZHC 937
•1 May 2013
IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY
CRI-2013-485-000006 [2013] NZHC 937
IN THE MATTER OF an appeal under s 116 of the Summary
Proceedings Act 1957
BETWEEN TAYLOR PRESTON LIMITED Appellant
ANDTHE MINISTRY OF BUSINESS, INNOVATION AND EMPLOYMENT Respondent
Hearing: 9 April 2013
Counsel: T P Cleary for Appellant
I R Murray and A Leulu for Respondent
Judgment: 1 May 2013
In accordance with r 11.5 I direct the Registrar to endorse this judgment with the delivery time of 11.00 am on the 1st day of May 2013.
RESERVED JUDGMENT OF COLLINS J
Introduction
[1] The principal issue I have to decide is encapsulated in the following question:
Did the District Court make an error when it convicted Taylor Preston Ltd (Taylor Preston) of breaching s 6 of the Health and Safety in Employment Act 1992 (the Act)?
[2] This question leads to two sub-questions:
TAYLOR PRESTON LIMITED V THE MINISTRY OF BUSINESS, INNOVATION AND EMPLOYMENT HC WN CRI-2013-485-000006 [1 May 2013]
(1)Was Taylor Preston unfairly prejudiced by not being told that a particular element of the charge concerned an alleged lack of supervision of one of its employees?
(2)Was there sufficient evidence to enable the District Court Judge to conclude that Taylor Preston was liable because it failed to adequately supervise its employee?
Context
[3] These questions arise in the context of an appeal by Taylor Preston following its conviction for breaching s 6 of the Act by Judge Mill in the Wellington District Court. Judge Mill fined Taylor Preston $65,000 and ordered reparation of $12,080. This appeal is concerned with conviction and not the sentence imposed by Judge Mill.
Background
[4] Taylor Preston owns and operates a meat processing plant in Wellington. It employs approximately 600 permanent workers at its plant. One of those employees was Mr Ngaia-Daniel, who was employed as a meat processor. Mr Ngaia-Daniel worked in the lamb cutting room at a loin cutting station.
[5] Mr Ngaia-Daniel’s duties involved him working with a machine that is designed to remove membrane and silver skin (I will refer to both as “membrane”) from meat. The machine has an entry point into which meat is fed by a conveyor. Upon entering the machine the meat is squeezed by a band roller and then gripped by a tooth roller, which in turn pushes the meat towards a static blade which peels off the membrane from the meat. The meat then passes over a metal sheet before falling into an output conveyor. As the membrane on the meat is cut off it falls below the blade into a bin, which sits beneath the tooth roller and a scraper designed to clear waste from between the teeth on that roller.
[6] The machine is fitted with a hood, which guards its mechanisms and which also has a device that stops the machine when the hood is lifted.
[7] On 18 January 2011, Mr Ngaia-Daniel cleared debris from around the tooth roller. He did this by moving the bin that collects the membrane and knelt down on one knee and put his left arm through a gap that was a little bigger than a man’s fist beneath the exit conveyor. At that time the machine was working. Mr Ngaia- Daniel’s left hand became entangled with the tooth roller, thereby causing serious injury to his left hand. Two of Mr Ngaia-Daniel’s fingers were subsequently amputated.
[8] The actions of Mr Ngaia-Daniel were not approved by Taylor Preston and contrary to his training. Taylor Preston employed fitters and cleaners who were specially trained to clear out debris that became clogged in the meat processing machine. Mr Ngaia-Daniel knew that if he had been caught doing what he did on
18 January 2011 he would have faced disciplinary action. [9] Judge Mill recognised that Mr Ngaia-Daniel knew:
(1) that cleaning the machine in the way he attempted “was dangerous”;
and
(2)that there was “... a procedure for cleaning and clearing the machinery by other employees”; and
(3) that he and a fellow employee were never told to clean the machine.
Judge Mill said Mr Ngaia-Daniel:1
blames himself for what happened. ... however [he] cleaned at the beginning of the shift and two or three times during the shift. It would take about ten minutes on each occasion. [Mr Ngaia-Daniel] did it because he wanted the machine to work better and so using his own initiative he saw the gap under the machine from where he could get the [debris] out that came off and hung there from the “grill”.
1 Department of Labour v Taylor Preston Ltd DC Wellington CRN 11085501601, 29 October
2012 at [88].
[10] Mr Ngaia-Daniel had been working for Taylor Preston for a little over a year prior to his accident. He was described as being conscientious and assessed to have been “a fully trained and competent operator of the machine prior to the accident”. He had been fully warned and instructed not to put his hands into the machine whether it was operating or not.2
[11] Judge Mill found as a fact that Mr Ngaia-Daniel and another employee were in the habit of regularly clearing the machine in the way Mr Ngaia-Daniel attempted at the time of his accident.
[12] Judge Mill also found that the manufacturer of the machine had not warned Taylor Preston of the particular hazard that could occur through employees accessing the internal workings of the machine in the way Mr Ngaia-Daniel did. On the contrary, the manufacturer of the machine and Taylor Preston believed that the most sensible way to access the workings of the machine was to lift the cover guard, thereby causing the machine to switch off. It was through lifting the cover guard that access to the internal machinery could be gained safely and conveniently.
[13] Judge Mill also found as a fact that the management of Taylor Preston had not been alerted to the routine practice adopted by Mr Ngaia-Daniel and another operator of the machine of cleaning the machine in the way that led to Mr Ngaia- Daniel’s accident. However, Judge Mill also found that:3
An operator regularly kneeling and working as [Mr Ngaia-Daniel] 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.
2 At [70].
3 At [89] and [92].
[14] Following the accident a safety guard was put in place to prevent other employees making the same mistake as Mr Ngaia-Daniel.
Legislation
[15] Taylor Preston was charged under s 50 of the Act for failing to comply with the requirements of s 6(1)(d) of the 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—
...
(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 ...
[16] 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.
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.
[17] Judge Mill concluded that Taylor Preston failed to take all practicable steps to ensure Mr Ngaia-Daniel was not exposed to harm arising out of the use of the machine.
[18] This conclusion was based on Judge Mill finding that Taylor Preston “ought reasonably to have known” of the dangerous practices of Mr Ngaia-Daniel and another employee of inserting their hands in the machine to clear out debris. His Honour said if Taylor Preston had known of those risks:4
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.
Grounds of appeal
[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 Mr Ngaia-Daniel as a particular of the charge. As a result, Taylor Preston did not adduce evidence about whether supervision would have in fact resulted in Mr Ngaia-Daniel’s unsafe practices being detected.
(2)It was not open on the evidence for Judge Mill to conclude that improving supervision of Mr Ngaia-Daniel would have resulted in Taylor Preston discovering Mr Ngaia-Daniel 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.
[20] The appeal I have to determine is brought as a general appeal pursuant to s 115 of the Summary Proceedings Act 1957. Accordingly, Taylor Preston has the onus of satisfying me that Judge Mill’s decision was wrong.5 I must, however, reach my own assessment of the merits of the case, and act on my own view even when my opinion of the merits is based upon an assessment of fact and entails a value judgement.6
First ground of appeal
[21] The gravamen of the first ground of appeal is that Taylor Preston was unfairly prejudiced in conducting its defence because the particulars of the charge did not specify that a lack of supervision of Mr Ngaia-Daniel caused him to be exposed to the hazards of the machine.
[22] The information laid against Taylor Preston specified that:
... on or about 18 January 2011 at ... Wellington, [it] did commit an offence against s 6 and s 50(1)(a) [of the Act] in that being an employer, failed to take all practicable steps to ensure the safety of its employee namely [Mr Ngaia-Daniel], while at work in that it failed to take all practicable steps to ensure that [Mr Ngaia-Daniel] was not exposed to hazards arising out of use of a membrane skinner in his place of work.
[23] When Taylor Preston sought particulars from the informant as to what practicable steps it was alleged it should have taken not to expose Mr Ngaia-Daniel to hazards arising from use of the machine, the informant said Taylor Preston should have:
(1) “ensure[d] that workers did not have access to the dangerous moving
parts of the machine. This could have occurred by adequately guarding the machine by installing:
5 Austin, Nichols & Co Inc v Stichting Lodestar [2007] NZSC 103, [2008] 2 NZLR 141 at [4] and
[13].
a guard preventing access beneath the discharge belt or outfeed conveyor;
a bar across the entry areas of the machine.”
(2)“to ensure that a lockout process was implemented in the lamb cutting room for all staff to ensure that machinery was secured against movement and effectively locked during the cleaning of the machine”.
[24] These particulars were provided by the informant pursuant to s 17 of the
Summary Proceedings Act 1957, which provides that:
Every information shall contain such particulars as will fairly inform the defendant of the substance of the offence with which he is charged.
[25] The purpose of s 17 of the Summary Proceedings Act 1957 was explained in the following way by McCarthy J in Police v Wyatt:7
What s 17 sets out to do, I believe, is to make two things clear: 1. That it is not obligatory to state an offence in the ipsissima verba of the section creating the offence; and 2. That sufficient particulars must be given reasonably to inform the person charged of the act or omission alleged and to identify the transaction. A requirement stated in the general terms of s 17 cannot be reduced to a mere list of particulars which is to be common in all charges. Obviously the degree of particularity needed to inform a person adequately of the substance of a charge must vary according to the nature of the offence. ... it is the substance, the essence or pith, of the charge which must be revealed by the particulars, not the details relied upon to establish the charge. ... in some cases only a few particulars will be necessary to convey the substance. In others, especially where the offence is a complex one, ... more will be required.
[26] Mr Cleary submitted that Judge Mill held that Taylor Preston should have taken the practicable step of applying greater supervision to Mr Ngaia-Daniel’s work practices. Mr Cleary points to the following passages of the Judge’s decision:8
[Taylor Preston] 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
7 Police v Wyatt [1966] NZLR 1118 (CA) at 1133.
8 Department of Labour v Taylor Preston Ltd at [93] and [95].
and the observing of such a blatant routine and also to the guarding of the machine to prevent access whilst it was in operation.
... I find it proved that [Taylor Preston] failed to provide sufficient supervision of the operators of the machine thereby allowing a dangerous practice to emerge and to continue unchecked for a considerable time before the accident. In the circumstances [Taylor Preston] ought to have known of the exposure to the hazard from this practice prior to the accident and should have taken the practical step of preventing the practice and guarding the hazard prior to that date to ensure [Mr Ngaia’Daniel’s] safety.
[27] Mr Cleary submitted that Judge Mill appears to have reasoned that the practical step of putting in place a safety guard was contingent on Taylor Preston properly supervising Mr Ngaia-Daniel and that through such supervision Taylor Preston would have learnt about his unsafe practices and appreciated the need for a safety guard. Logically, therefore, Mr Cleary submits that Judge Mill would have concluded that had Taylor Preston appropriately supervised Mr Ngaia-Daniel then it would have carried out all required practical steps. However, because Taylor Preston were not alerted to the lack of appropriate supervision issue, it was prejudiced in its defence when it did not call evidence to address that matter.
[28] The lacuna in Mr Cleary’s approach is that it is based on the proposition that putting in place a safety guard was dependent on a greater level of supervision of Mr Ngaia-Daniel, thereby alerting Taylor Preston to his unsafe practices. However, in my view, while some features of Judge Mill’s reasoning followed the linear approach suggested by Mr Cleary, it is also clear that Judge Mill held that there were two independent practicable steps which Taylor Preston should have taken, namely:
(1)Greater supervision of Mr Ngaia-Daniel. This by itself would have impacted upon his unsafe practices.
(2)Inserting a safety guard. This was based on what Taylor Preston ought reasonably to have known about Mr Ngaia-Daniel’s unsafe practices.
[29] It was sufficient for a conviction for Taylor Preston to have failed to have taken one reasonably practicable step to ensure that Mr Ngaia-Daniel was not exposed to hazard from the machine. In this case the informant fully explained in
the information and in the particulars delivered pursuant to s 17 of the Summary Proceedings Act 1957 that part of the “substance, the essence or pith”9 of the charge was that Taylor Preston should have installed a safety guard that would have prevented Mr Ngaia-Daniel accessing the internal parts of the machine in the way he routinely did.
[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.
[31] Thus, I am bound to conclude that Taylor Preston were not unfairly prejudiced in its defence because Taylor Preston knew the essential features of the charge that it was ultimately convicted of.
[32] In this case, the second of the practicable steps referred to in [28](2) above was fairly found not to have been taken. Therefore, the first ground of appeal must be dismissed.
Second ground of appeal
[33] Mr Cleary submitted that, in relation to the second ground of appeal, there was not sufficient evidence to enable Judge Mill to conclude that had there been greater supervision of Mr Ngaia-Daniel, then his unsafe work practices would have been detected and addressed.
[34] Mr Cleary submitted that the fault in Judge Mill’s reasoning was that even if
Mr Ngaia-Daniel had been supervised all of the time, the hazard would not have been detected because it is inherently unlikely Mr Ngaia-Daniel would have carried
9 Police v Wyatt [1966] NZLR 1118 (CA).
out his unauthorised cleaning activities whilst being supervised. That is because he knew it was dangerous and he would be disciplined if caught.
[35] Judge Mill was right to conclude that Mr Ngaia-Daniel carried out the dangerous practice of cleaning the machine with his hand whilst it was operating on a regular basis. The evidence that supported this was:
(1) Mr Ngaia-Daniel had carried out the dangerous process for a year;
(2)Mr Ngaia-Daniel carried out the dangerous process two or three times during each shift; and
(3)The process itself would take about ten minutes on each occasion it was carried out.
[36] Mr Cleary’s submission draws on the need for a causal link between the practicable step and one of the objectives outlined at s 6(a)-(e) of the Act, in this case the employee’s exposure to the hazard. If the step identified would not have made any difference to Mr Ngaia-Daniel’s exposure to the hazard presented by the machine, then it cannot qualify as being “practicable”.
[37] However, I am satisfied that the practicable step of greater supervision would have caused a reduction in Mr Ngaia-Daniel’s exposure to the relevant hazard.
[38] The evidence before Judge Mill was more than sufficient to enable him to:
(1)conclude as a fact Taylor Preston did not have in place adequate supervision of Mr Ngaia-Daniel; and
(2)infer that adequate supervision would have deterred Mr Ngaia-Daniel from undertaking his unsafe practices.
[39] This last point was not a question of evidence. It was an issue that was able to be adequately addressed in submissions as was apparent from the informant’s submissions in the District Court when it said:
Taking into account the above facts, it is clear that the defendant should have identified the hazard associated with the trapping point and that it would not have been unreasonable to do so.
[40] For these reasons, the second ground of appeal cannot be upheld.
Conclusion
[41] The District Court Judge did not make an error when he convicted
Taylor Preston of breaching s 6 of the Act.
[42] Preston Taylor’s appeal against conviction is dismissed.
D B Collins J
Solicitors:
P H Mitchell, Wellington for Appellant
Crown Solicitor, Wellington for Respondent
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