Waimea Sawmillers Ltd v Worksafe New Zealand
[2016] NZHC 915
•6 May 2016
IN THE HIGH COURT OF NEW ZEALAND NELSON REGISTRY
CRI-2014-042-000983 [2016] NZHC 915
IN THE MATTER OF An appeal under s 232 of the Criminal
Procedure Act 2011
BETWEEN
WAIMEA SAWMILLERS LIMITED Appellant
AND
WORKSAFE NEW ZEALAND Respondent
Hearing: 27 April 2016 Counsel:
A B Darroch and C Lawes for Appellant
D R La Hood for RespondentJudgment:
6 May 2016
JUDGMENT OF COLLINS J
Summary of judgment
[1] On 1 September 2013 Mr Rolfe, an experienced and trusted employee of Waimea Sawmillers Ltd (Waimea), committed a cardinal error. Mr Rolfe lubricated a piece of machinery in Waimea’s sawmill while the machinery was running. Mr Rolfe’s hand got caught in the machinery and as a consequence his fingers were badly injured. Mr Rolfe candidly acknowledges that he, and not Waimea, was the author of his misfortune and that he breached the safety rules which Waimea had put in place to avoid accidents of the kind which befell Mr Rolfe.
[2] Waimea was prosecuted by Worksafe New Zealand (Worksafe) under s 6 of the Health and Safety in Employment Act 1992 (the Act)1 for failing to take all
practicable steps to ensure Mr Rolfe’s safety while he was at work. It was alleged
1 The Health and Safety in Employment Act 1992 was replaced by the Health and Safety at Work
Act 2015, which came into force on 4 April 2016.
WAIMEA SAWMILLERS LIMITED v WORKSAFE NEW ZEALAND [2016] NZHC 915 [6 May 2016]
Waimea omitted to put in place three safety measures including failing to ensure a guard covered the machinery in question.
[3] Waimea was convicted by Judge Morris in the District Court at Nelson on
30 October 2015. She fined Waimea $40,000. Waimea has appealed its conviction. There is no separate appeal from the sentence imposed by Judge Morris.
[4] There are two broad grounds to the appeal.
[5] First, it is submitted Judge Morris approached the charge too broadly and failed to focus on the circumstances and events that occurred on the day Mr Rolfe was injured when he was undertaking maintenance work on the machinery.
[6] Second, it is submitted Judge Morris erred when she found that Mr Rolfe’s conduct was reasonably foreseeable and that Waimea had failed to take all practicable steps to reduce the hazard to which Mr Rolfe was exposed.
[7] I am dismissing Waimea’s appeal because I am satisfied Judge Morris correctly applied the law governing the charge and that she reached the correct conclusion when she found Waimea had breached s 6 of the Act.
Background
[8] Waimea operates a sawmill in Nelson employing approximately 70 people. Mr Rolfe was employed as a technical supervisor.2 His duties included maintaining an “OptiCut 350 saw” (OptiCut saw). Mr Rolfe commenced working at Waimea in
2006 and was a member of Waimea’s Health and Safety Committee for two years prior to his accident. In this capacity he helped implement and promote safety procedures at Waimea, such as the development of Waimea’s “golden rules” outlined at [12(1)].
[9] The milling processes undertaken at Waimea include the detection and excision of defects in timber through a highly automated process. This process
involves a wood eye scanner machine and the OptiCut saw, manufactured by a
2 Mr Rolfe ceased working at Waimea in 2014.
company in Sweden called Grecon Dimter GmbH Co KG (Grecon). The wood eye scanner identifies knots and other defects in timber that is then moved along chains and belts (the conveyor system) to enable the defects to be cut out by the OptiCut saw. The conveyor system between the two machines includes a horizontal set of chains that moves the timber along the conveyor system between the two machines. There is also a short vertical chain and sprocket that forms part of the conveyor system. When the machinery was installed, the vertical chain and sprocket system was exposed. Waimea has installed a safety guard over this machinery since Mr Rolfe’s accident. Evidence was given in this case that it would have cost between $300 and $600 to install a safety guard over the vertical chain and sprocket.
[10] The wood eye scanner, the OptiCut saw and the conveyor system linking those two machines are in an area of the sawmill that was designed to be completely fenced off. At the relevant time, the area where this machinery is located was cordoned off on three sides by a high mesh fence. A panel of the fence was however, not in place at one end of the zone where the machinery is located. The machinery area was easily accessible through the gap in the fence. The fence was designed so that when a gate on the rear side of the high mesh fence was opened the machinery automatically switched off. The circuit-breaking mechanisms associated with that gate were however, not working at the relevant time. The front of the machinery area was cordoned off by a single length of chain with a sign warning people not to enter. Grecon had envisaged the chain would be supplemented by a curtain light system that would switch off the machinery whenever anyone entered into the machinery area by going over or under the chain. The curtain light system had however, never worked following the installation of the machinery at Waimea. The single chain has been replaced with a low mesh fence since Mr Rolfe’s accident.
[11] Operators of the wood eye scanner and OptiCut saw are able to ensure the equipment does not become dirty and dusty by operating a cleaning system using an air hose and wand. Operators clean the machinery by using the air hose and wand while standing outside of the low mesh fence that now cordons off the front of the machinery. The machinery, however, has to be regularly maintained. This was one of Mr Rolfe’s responsibilities. Waimea devised maintenance schedules that specified what maintenance work was to be carried out and how frequently. The vertical chain
and sprocket was not however, referred to in the maintenance schedules as it was designed to “run dry”, that is to say, not require regular lubrication. Consequently, Mr Rolfe had never cleaned or maintained that equipment prior to 1 November 2013.
[12] The safety procedures put in place by Waimea included:
(1)Waimea’s “golden rules” which specify that machinery has to be switched off and “isolated” when maintenance is being undertaken.3
The “golden rules” also specify that a maintenance worker should always be accompanied by a “buddy” to check safety procedures are complied with.
(2)A “hold card”4 procedure, which specifies that when work is being done on a machine, a “hold card” has to be put on the main switches to alert others that the machinery is being worked on. The “hold card” procedure also requires employees working on machinery to “shut down energy sources” and “isolate the machine’s main power”.
(3)Machinery safety rules which highlight the need for employees to “always use the BUDDY SYSTEM AND ISOLATE machinery before clearing, cleaning or undertaking maintenance work”.5
(4)Grecon’s operating manual which specifies that before undertaking maintenance work an employee is required to turn off the machinery and “lock the main switch against inadvertent restart”.6
[13] In addition to the safety rules promulgated by Waimea, Worksafe had issued
Machinery Safety Guidelines in 1995 (the 1995 guidelines).7 The 1995 guidelines were superseded by a new set of guidelines issued in 2014.
3 Worksafe New Zealand Ltd v Waimea Sawmillers Ltd [2015] NZDC 21082, Exhibit A.
4 Exhibit B.
5 Exhibit D.
6 Exhibit 3, tab 7 at 7.1.
7 Exhibit 3, tab 6A.
[14] The relevant portions of the 1995 guidelines that were in place on
1 November 2013 explained that employers should take all practicable steps to ensure that the hazardous motion of machinery was stopped before cleaning and maintenance work was carried out. The guidelines said “isolation, hold cards and lock out devices” should also be used.8 The 1995 guidelines described options for guards for machines and referred to the Australian Standard AS4024-Assessment of Risk (Australian Standard) relating to risk assessment when determining whether a guard should be fitted to machines.
[15] The Australian Standard explains how designers should assess the risk a hazard poses and warns of an obligation to consider:9
(c) Unintended behaviour of the operator or reasonably foreseeable misuse of the machine, for example –
…
(iii) behaviour resulting from lack of concentration or carelessness;
(iv) behaviour resulting from taking the “line of least resistance”
in carrying out a task.
The Australian Standard explains that an employer should factor in these risks and the use of a machine in a way not intended by the designer but which may result from readily predictable human behaviour.
[16] The Australian Standard provides guidance on the sort of guard that might be appropriate if a machine or part of a machine is a potential hazard. Under the Australian Standard, the criteria for assessing the correct guard include the probability of the occurrence of a dangerous event, the likely severity of any injury and the nature and frequency of access of employees to the machinery in question.
[17] Reference was also made in this case to Accident Compensation Corporation guidelines for Health and Safety in the Timber Processing Industry (ACC
guidelines).10 The ACC guidelines identify steps that should be taken by an
8 Worksafe New Zealand Ltd v Waimea Sawmillers Ltd, above n 3, Exhibit 3, tab 6A at 3.9.
9 Exhibit 3, tab 5 AS 4024.1201 at 6.3.
10 Exhibit 3, tab 4.
employer to lock a machine out including turning it off at the power source and putting a lock on emergency energy sources. The guidelines stipulate that “hold cards” are not the best practice to achieve a “lock out” and that emergency interlocks should not be used to routinely stop machinery or as a sole “lock out” method.
[18] The ACC guidelines also explain how an employer should identify hazards and warns employers that:11
The best thing you can do to improve workplace safety is to get rid of (eliminate) hazards. If that’s not possible, you should think about how to isolate them, which may include using safeguards. If that’s not possible, you need to think about how you can change work practices and processes to lessen injury and harm.
[19] The ACC guidelines then pictorially identify chain and sprockets as potential hazards, and state that guards should be designed and installed so that maintenance can be carried out on machines without removing the guard.
Events of 1 November 2013
[20] On 1 November 2013 Waimea ran out of timber that could be processed through the wood eye scanner and the OptiCut saw. Mr Rolfe decided to carry out detailed maintenance work on the conveyor system and the OptiCut saw. He decided to carry out this maintenance work without the assistance of a “buddy” as required by Waimea’s “golden rules” and machinery safety rules.
[21] Mr Rolfe commenced the maintenance work by taking the following steps: (1) Switching off the power to the machinery at the main switch.
(2) Pushing in the emergency stop button on the control panel.
(3) Placing his “hold card” above the emergency stop to signal he was
working on the machinery.
11 Worksafe New Zealand Ltd v Waimea Sawmillers Ltd, above n 3, Exhibit 3, tab 4 at 4.4.
Mr Rolfe then went inside the safety fence and worked near the in-feed tray of the conveyor system, tightening bolts and carrying out other maintenance.
[22] After about an hour of carrying out this maintenance work, Mr Rolfe decided to grease the horizontal chains, which formed part of the conveyor system. He decided to do this by turning the machinery back on. It is accepted this was a deliberate decision by Mr Rolfe that violated Waimea’s safety protocols. This manoeuvre involved Mr Rolfe:
(1) Removing his “hold card”.
(2) Releasing the emergency stop button. (3) Turning the power back on.
(4) Pressing the start button.
(5) Crossing over the chain barrier to get closer to the conveyor system. [23] After completing maintenance work on the horizontal chains, Mr Rolfe
decided to grease the vertical chain and sprocket. This was not part of the planned maintenance work. It was easy to lubricate the vertical chain and sprocket without the machinery running. Mr Rolfe however, decided to carry out this work while the machinery was still running.
[24] Mr Rolfe placed a rag behind the vertical chain and began spraying lubricant at the moving chain. The chain caught the rag and dragged both the rag and Mr Rolfe’s hand into the point where the chain meets the sprocket, thereby causing serious injuries to Mr Rolfe’s fingers.
[25] Mr Rolfe acknowledged it was contrary to Waimea’s safety procedures to lubricate the vertical chain and sprocket while the machinery was running. He said he had never lubricated the vertical chain and sprocket before, let alone when it was moving.
[26] Mr Rolfe acknowledged in his evidence that he, and not Waimea was responsible for his injuries. He also accepted Waimea could not have anticipated that he would have decided to lubricate the vertical chain and sprocket while the machinery was still running and on the day in question he did not exercise “common sense”.12
The charge
[27] On 12 June 2014, Worksafe laid one charge against Waimea in the Nelson District Court alleging Waimea had breached ss 6 and 50(1)(a) of the Act.13 It was alleged Waimea had on or about 1 November 2013:
failed to take all practicable steps to ensure the safety of its employee [Mr Rolfe], while at work, in that it failed to take all practicable steps to ensure [Mr Rolfe] was not harmed by a running chain and sprocket on an OptiCut 350 machine in his place of work.
[28] Worksafe alleged Waimea had breached s 6 of the Act in one of three ways: (1) Failing to install a guard on the vertical chain and sprocket.
(2)Failing to ensure the gate and high mesh fence around three sides of the machinery would lock the machinery off whenever a person entered through the gate into the machinery area.
(3)Failing to ensure the chain fence in front of the machinery area had a curtain light system that switched off the machinery whenever any
person passed over or through the chain fence.
12 Notes of Evidence at 47, lines 2-5.
13 Health and Safety in Employment Act 1992, s 50(1)(a):
(1) Every person commits an offence, and is liable on … conviction to a fine not exceeding
$250,000, who fails to comply with the requirements of—
(a) [Section 6]
...
The law
Objectives of the Health and Safety in Employment Act 1992
[29] The objectives of the Act are set out in s 5. For present purposes the relevant portions of s 5 state:
5 Object of Act
The object of this Act is to promote the prevention of harm to all persons at work and other persons in, or in the vicinity of, a place of work by—
(a) promoting excellence in health and safety management, in particular through promoting the systematic management of health and safety; and
(b) defining hazards and harm in a comprehensive way so that all hazards and harm are covered, including harm caused by work- related stress and hazardous behaviour caused by certain temporary conditions; and
...
(d) setting requirements that—
(i) relate to taking all practicable steps to ensure health and safety; and
(ii) are flexible to cover different circumstances; and
...
(g) providing a range of enforcement methods, including various notices and prosecution, so as to enable an appropriate response to a failure to comply with the Act depending on its nature and gravity; and
...
[30] The objectives underpinning the Act were explained by the Court of Appeal in Central Cranes Ltd v Department of Labour14 and a full bench of the High Court in Department of Labour v Hanham & Philip Contractors Ltd.15 In the latter case, the High Court referred to Central Cranes Ltd and said:16
(i) The principal object of the Act is to provide for the prevention of harm.
14 Central Cranes Ltd v Department of Labour [1997] 3 NZLR 694 (CA) at 701-703.
15 Department of Labour v Hanham & Philip Contractors Ltd HC Christchurch CRI-2008-409-2,
18 December 2008 at [22].
16 Central Cranes Ltd v Department of Labour, above n 14, at 701.
(ii) Employers are required to promote safety in the workplace and to take all practicable steps to ensure employees and others in the workplace are not harmed.
(iii) While the primary obligation to promote and ensure safety rests upon the employer, this does not exonerate or diminish the responsibility of other persons in other capacities … from discharging the statutory duty imposed upon them.
(iv) There is no valid distinction to be drawn between a positive duty to act and a negative duty to avoid harm.
(v) The question of what is a practicable step to ensure safety in the workplace is a matter of fact and degree in each case.
[31] The objectives of the Act should be viewed in the wider context of New Zealand’s no fault accident compensation regime (ACC) that provides cover for those who suffer personal injury by accident. In this case, Mr Rolfe enjoyed the benefits of ACC cover without having to prove fault on the part of Waimea or be penalised because of his own contributory negligence.
Duty of employers to ensure the safety of employees
[32] The relevant portions of s 6 of the Act state:
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—
(a) provide and maintain for employees a safe working environment;
and
(b) provide and maintain for employees while they are at work facilities for their safety and health; and
(c) ensure that plant used by any employee at work is so arranged, designed, made, and maintained that it is safe for the employee to use; and
(d) ensure that while at work employees are not exposed to hazards arising out of the … working, or use of things—
(i) in their place of work; or
…
Hazard
[33] “Hazard” is defined in s 2 of the Act to mean “… an actual or potential cause or source of harm …”.
All practicable steps
[34] “All practicable steps” is defined in s 2A of the Act:
2A All practicable steps
(1) In this Act, 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.
(2) 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.
[35] The concept of what is “reasonably practicable” was explained by Asquith LJ in Edwards v National Coal Board17, and quoted with approval by Hansen J in Buchanans Foundry Ltd v Department of Labour, in the following way:18
Reasonably practicable is a narrower term than physically possible and seems to me to imply that a computation must be made by the owner, in which the quantum of risk is placed on one scale, and the sacrifice involved and the measures necessary for adverting the risk, whether in money, time or trouble, is placed in the other; and that if it can be shown that there is a gross disproportion between them, the risk being insignificant in relation to the – sacrifice the defendant’s discharge the onus on them.
17 Edwards v National Coal Board [1949] 1 KB 704 at 712.
18 Buchanans Foundry Ltd v Department of Labour [1996] 3 NZLR 112 (HC).
It is important to bear in mind, however, that it is for the prosecution to prove the allegations under s 6 of the Act beyond reasonable doubt.
[36] The Act does not require an employer to ensure complete protection of an employee. Rather, the Act imposes an obligation on an employer to take all reasonably practicable steps to guard against potential hazards. Whether a practicable step has been taken cannot be determined with the benefit of hindsight or on what was known after the event. The relevant point in determining what is
practicable is a point in time immediately prior to the incident.19
“Knowledge”
[37] “Knowledge” in the definition of “all practicable steps” refers to an objective assessment of what a reasonable employer would know about the matters referred to in s 2A(1)(b), (c) and (d) of the Act, not the employer’s subjective knowledge.20
Causation
[38] It is not necessary for the prosecution to demonstrate a causal connection between an injury to an employee and failure by an employer to take all practicable steps to ensure the safety of an employee while at work. An investigation is only likely to be initiated however after an injury has occurred.21
[39] The absence of the need for Worksafe to prove a causal connection between Waimea’s breach of its statutory duty and the injury suffered by Mr Rolfe reflects a key policy objective of the Act. That objective requires employers and others with responsibilities under the Act to take practicable steps to ensure employees are not exposed to hazards in the workplace. This obligation may be breached regardless of whether or not injury is caused by a failure to prevent an employee from being
exposed to a workplace hazard.
19 Buchanans Foundry Ltd v Department of Labour, above n 18, at 342.
20 Department of Labour v Solid Timber Building Systems New Zealand Ltd HC Rotorua
AP464/44/2003, 7 November 2003 at [35].
21 Martin Simmons Air Conditioning Services Ltd v Department of Labour HC Auckland CRI-
2007-404-249, 30 April 2008.
Conduct by employees
[40] Section 6 of the Act requires an employer to expect irrational or unthinking conduct from employees in some circumstances. Thus, an employer may in some circumstances, be convicted under s 6 of the Act for failing to anticipate and counter irrational and even disobedient conduct by employees.22 It is particularly relevant in this case that while an employee may contribute to his or her own misfortune this does not necessarily absolve an employer from liability under s 6 of the Act.
Maintenance regulations
[41] Regulation 17(1) of the Health and Safety in Employment Regulations 1995 (the Regulations) specifically deals with the maintenance of machinery. Regulation 17 states:
17 Cleaning, maintenance, or repair of machinery
(1) Subject to subclause (2) of this regulation, every employer [shall take all practicable steps to] ensure, in relation to every place of work] under the control of that employer, that, where the cleaning, maintenance, or repair of any machinery while the whole or a part of the machinery is moving may cause harm to any employee, the machinery is not cleaned, maintained, or repaired—
(a) Until every part of the machinery, including any extension or attachment, has been secured against movement, including inadvertent movement; and
(b) Until every control device has been secured in the inoperative position by the use of locks or lock-out procedures or other equally effective means.
…
District Court judgment
Scope of the charge
[42] In the District Court, Waimea argued the prosecution case was confined to the events of 1 November 2013 and in particular that the injury to Mr Rolfe occurred during a period of maintenance and not during normal operations. Waimea said the
Court was therefore required to take into account the following circumstances that existed on 1 November 2013:
(1) The machinery in question was not “operating”.
(2) The machine operators were not present.
(3)There were particular maintenance tasks Mr Rolfe was required to undertake but maintaining the vertical chain and sprocket was not one of his tasks.
(4)Waimea could not reasonably anticipate Mr Rolfe would lubricate the vertical chain and sprocket. It was not something he had ever done before
(5)Prior to 1 November 2013, Mr Rolfe had never breached Waimea’s safety policies so Waimea could not have anticipated a breach at the time.
[43] Waimea submitted that when those circumstances were taken into account, Waimea could not be held liable because the accident to Mr Rolfe was unexpected and unforeseen by Waimea.
[44] Judge Morris rejected Waimea’s submission that the charge was limited to the events of 1 November 2013. Judge Morris explained:23
An accident is often the event that initiates an investigation and potential prosecution. [Section 6 of the Act], however, does not require a causal link to be proved. It may be on occasions that an initiating accident occurred in a way that could not be anticipated, but the focus in a charge, and in this charge, is whether the machine in question here, a running chain and sprocket, was a potential hazard to Mr Rolfe while he was in his place of work. This prosecution could have been laid without any accident at all ...
[45] Judge Morris proceeded to explain the obligation under s 6 of the Act:24
The s 6 obligation is a broad one and the narrowing of the date [to
1 November 2013] does not narrow the requirement or the duty. The fact the machine was not in operation on [1 November 2013] does not mean in relation to a machine that is operated the employer does not have to take that into account in assessing hazards and proportionate responses to that potential hazard.
[46] Judge Morris explained that the hazard in this case concerned the chain and sprocket. She said:25
… It is not necessary, even in the way this [charge] is framed, for the chain and sprocket to be actually running on the day. If it presents as a potential hazard, then that is enough.
[47] There was no dispute that a moving chain and sprocket could cause harm if it came into contact with a person. Once this was acknowledged, Judge Morris identified the two issues she needed to determine when deciding if the prosecution had proven Waimea had breached s 6 of the Act. Judge Morris framed the two issues in the following way:26
(1) Would the reasonable company have predicted that Mr Rolfe might, in all the circumstances, come into contact with the moving chain and sprocket, despite company rules to the contrary, when he went about his job in this factory. If not then that is the end of the matter and I would find the company not guilty, as it would not be a foreseeable hazard to Mr Rolfe and this prosecution would fail. If yes, then the second issue is:
(2) Are one or more of the three steps relied upon by the prosecution reasonably practicable steps that the employer should have taken to reduce the risk of harm to him from the hazard?
[48] In answering the first question Judge Morris decided that in the circumstances of this case, an unguarded chain and sprocket was a potential hazard to Mr Rolfe. She concluded that there was a reasonably foreseeable risk Mr Rolfe would come into contact with the chain and sprocket in varying circumstances, particularly where there was a gap in the high mesh fence to step through and a relatively low chain to step over, with only a sign in front of the machinery, to warn
him from doing so. In reaching this conclusion, Judge Morris said that she was
24 Worksafe New Zealand Ltd v Waimea Sawmillers Ltd, above n 3, at [38].
25 At [40].
26 At [85].
satisfied she should answer the first question against Waimea even though the hazard only arose when there was a deliberate decision by Mr Rolfe to ignore company policy. Judge Morris believed it was reasonably foreseeable that someone such as Mr Rolfe may on occasion take the risk of maintaining the vertical chain and sprocket while the machinery was running. Judge Morris said that although the risk of Mr Rolfe behaving in the way he did on 1 November 2013 was low it was nevertheless a reasonably foreseeable risk.
[49] In answering the second issue posed, Judge Morris concluded that placing a guard over the vertical chain and sprocket was a relatively obvious and easy precaution for Waimea to have taken. Fitting a guard that allowed maintenance to occur, without being removed, was held to be a reasonably practicable step.
[50] Having concluded that Waimea breached its duty under s 6 of the Act by not having a guard in place over the chain and sprocket, it was not necessary for her to consider the other deficiencies relied upon by Worksafe in its prosecution. Nevertheless, Judge Morris concluded that Waimea did not have to construct a secure perimeter fence or put in place a curtain light system that would have ensured that the machinery shut off if somebody entered into the machinery area in addition to placing a guard over the vertical chain and sprocket.
Grounds of appeal
[51] Two grounds of appeal against conviction have been advanced by Waimea.
[52] First, Waimea contends the District Court went beyond the terms of the charge when it decided the vertical chain and sprocket posed a hazard or potential hazard to workers in its vicinity while it was operating. Waimea contends that Judge Morris erred by effectively focusing on the hazard posed by the chain and sprocket on days other than 1 November 2013 and workers other than Mr Rolfe.
[53] The second ground of appeal focuses upon Judge Morris’ finding that Mr Rolfe’s conduct was reasonably foreseeable to an objective employer in Waimea’s position. Waimea contends Judge Morris’ conclusion that Waimea was guilty did not reflect the distinct, deliberate and serious nature of Mr Rolfe’s actions.
Waimea submits Judge Morris’ decision on this point was influenced by her erroneous approach to widening the ambit of the charge. As part of the second ground of appeal Waimea submits that it could not be liable because it complied with the maintenance of machinery provisions in reg 17 of the Regulations.
Principles governing the hearing of the appeal
[54] Waimea’s appeal is brought as a general appeal pursuant to s 232(2)(b) and (c) of the Criminal Procedure Act 2011. Waimea must therefore show there has been a miscarriage of justice, either on the basis that the District Court assessed the evidence wrongly, or because of some other reason not related to the Judge’s assessment of the evidence. I must however, come to my own assessment of the
merits of the case.27
[55] A miscarriage of justice is defined in s 232(4) of the Criminal Procedure Act as meaning:
… any error, irregularity, or occurrence in or in relation to or affecting the trial that—
(a) has created a real risk that the outcome of the trial was affected; or
(b) has resulted in an unfair trial or a trial that was a nullity.
Analysis
First ground of appeal
[56] Mr Darroch, senior counsel for Waimea, explained that there were three components to the charge, namely:
(1) The hazard was the running of the vertical chain and sprocket. (2) Mr Rolfe was the employee who was affected.
(3) The events in question occurred on 1 November 2013.
27 Austin, Nichols & Co Inc v Stichting Lodestar [2007] NZSC 103, [2008] 2 NZLR 41.
[57] Mr Darroch submitted that when viewed from this perspective, the focus of the District Court’s inquiry should have been on the fact Mr Rolfe was carrying out maintenance work on the vertical chain and sprocket and that it was not foreseeable he would carry out that maintenance work while the machinery was running.
[58] This aspect of Waimea’s appeal steams from a misunderstanding about one of the basic purposes of s 6 of the Act. Section 6 of the Act imposes a duty on Waimea to prevent its employees from being exposed to hazards arising out of the use of machinery in their place of work. There is no requirement for Worksafe to prove that harm has befallen an individual employee in order to make out a charge under s 6 of
the Act.28 When distilled to its most basic elements, the charge under s 6 of the Act
was that Waimea exposed Mr Rolfe (and potentially other employees) to a hazard arising out of its failure to place a guard on the vertical chain and sprocket.29
[59] The fact the charge referred to 1 November 2013 was serendipitous. The charge could just have easily referred to the duration of the period the vertical chain and sprocket was operated by Waimea without a guard.
[60] Similarly, the fact the charge referred to Mr Rolfe was not in itself significant. He happened to have been the person who was injured by the vertical chain and sprocket on 1 November 2013 but the fact he was injured was not relevant to the charge. Mr Rolfe was one of several employees of Waimea who were at various times exposed to the unguarded vertical chain and sprocket.
[61] Judge Morris properly dismissed Mr Darroch’s submissions concerning the scope of the charge. She was correct when she analysed the scope of the charge in similar terms to the approach I have taken in [58] to [60]. She also sufficiently addressed the complaint that Waimea was inadequately informed of the charge it had
to answer. The first ground of appeal therefore fails.
28 Refer to [38] and [39].
29 It is not necessary to refer to the other omissions alleged by Worksafe relating to the circuit- breaking gate and curtain light systems.
Second ground of appeal
[62] There are three aspects to the second ground of appeal:
(1)It is alleged Judge Morris erred when she held it was reasonably foreseeable Mr Rolfe would come into contact with the moving vertical chain and sprocket when carrying out his work duties.
(2)It is wrong of Judge Morris to conclude Waimea could have taken practicable steps to reduce the hazard to which Mr Rolfe was exposed.
(3)Waimea had in any event complied with reg 17 of the Regulations and was therefore not liable.
Foreseeability
[63] I have considerable sympathy for Waimea’s predicament. Waimea was clearly a conscientious company that had put in place a series of work safety rules which, if complied with, would have ensured Mr Rolfe was not injured. As I have emphasised however, the fact Mr Rolfe was injured is not relevant and the fact that he contributed to his injuries did not in itself negate the obligation on Waimea to take all practicable steps to ensure Mr Rolfe and other employees were not exposed to hazards in the workplace.
[64] In assessing the risk of harm posed by the vertical chain and sprocket remaining exposed, Waimea needed to be mindful of the fact that even trusted and experienced employees, such as Mr Rolfe, could foreseeably take shortcuts and behave contrary to common sense when working on the machinery in question. The
1995 guidelines, the Australian Standard and the ACC guidelines refer to the obligation of an employer to assess the risk of a hazard against the background of the possibility of an employee acting contrary to common sense. It is for this reason the industry guidelines recommend the placing of guards over chains and sprockets.
[65] In my assessment, Judge Morris correctly analysed the evidence and law when she concluded the exposed vertical chain and sprocket constituted a hazard to Mr Rolfe and other employees who could easily come into contact with that machinery while it was running.
Practicable steps
[66] There is no doubt placing a guard over the vertical chain and sprocket was an easily achievable and cost-effective method of reducing the hazard posed by the machinery in question. Judge Morris also concluded on the evidence that a guard that allows maintenance to occur without removal was a reasonably practicable step. At the trial, Mr Lowe, a Worksafe engineer who specialises in machine guards, opined that Waimea could have easily guarded the nip point of the chain and sprocket and that a guard would cost somewhere between $300 to $600 to install. Had a guard, which did not need to be removed during maintenance, covered the vertical chain and sprocket then Waimea would have discharged its responsibilities and would have avoided conviction. The ability to obtain and put into effect a guard of this type at low cost made this a reasonably practicable step.
Regulation 17
[67] Mr Darroch submitted that if Waimea had complied with reg 17, then it could not be liable under s 6 of the Act.
[68] There is a legal hurdle to this proposition. Regulation 3 provides that:
A person on whom a duty is imposed by these regulations in relation to a particular set of circumstances shall … comply with that duty, notwithstanding that the Act may impose the same, a similar, or an additional duty on that person in relation to that set of circumstances.
Regulation 3 makes it clear that the regulations do not impose a lower standard than the Act, but are additional to requirements imposed by the Act.
[69] There is, in addition, a factual hurdle to this aspect of Waimea’s appeal. Judge Morris found that the “hold card” procedure relied upon by Waimea did not amount to a “lock out procedure” under reg 17(1)(b) of the Regulations.
Judge Morris was correct. The 1995 guidelines distinguish between “isolation” of machinery, “hold cards” and “lock out devices”. “Lock out devices” are “mechanical-locking mechanisms used to physically lock out power circuits/control circuit switches (machinery controls)”.30 Waimea did not in fact use a “lock out” system within the meaning of reg 17. This aspect of Waimea’s appeal must therefore fail.
Conclusions
[70] Judge Morris did not err in her application of the law or in her assessment of the evidence.
[71] The grounds of appeal advanced by Waimea are dismissed.
[72] All orders made by Judge Morris in the District Court remain in force.
D B Collins J
Solicitors:
Darroch Forrest, Lawyers, Wellington for Appellant
Crown Solicitor, Wellington for Respondent
30 Worksafe New Zealand Ltd v Waimea Sawmillers Ltd, above n 3, Exhibit 3, tab 6A at 3.9.
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