Worksafe New Zealand Mahi Haumaru Aotearoa v Waste Management NZ Limited

[2021] NZHC 3444

IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY

I TE KŌTI MATUA O AOTEAROA

TE WHANGANUI-A-TARA ROHE

CRI-2021-485-58

[2021] NZHC 3444

BETWEEN

WORKSAFE NEW ZEALAND MAHI HAUMARU AOTEAROA

Applicant/Appellant

AND

WASTE MANAGEMENT NZ LIMITED

Respondent

Hearing:	27 October 2021
Counsel:	S A Bishop, T G Bain and S E Leonard for Applicant/Appellant P N White and E R Harrison for Respondent
Judgment:	14 December 2021

JUDGMENT OF SIMON FRANCE J

Introduction and Issue

[1]    Mr James Gideon died in August 2017 as a result of workplace negligence. He was employed by the respondent, Waste Management, at the company’s Seaview facility where liquid and hazardous waste is treated and disposed of. Due to a misunderstanding of the true nature of some liquid waste being treated that day,    Mr Gideon was exposed to fatal amounts of hydrogen sulphide gas.

[2]    WorkSafe New Zealand (WorkSafe) laid charges under two provisions of the Health and Safety at Work Act 2015 (the Act). Section 48 is labelled:

48. Offence of failing to comply with a duty that exposes an individual to risk of death or serious injury or serious illness.

WORKSAFE NZ v WASTE MANAGEMENT NZ LIMITED [2021] NZHC 3444 [14 December 2021]

Waste Management accepted its liability under this, an offence punishable for a company defendant by a fine not exceeding $1.5 million.1 The acknowledgement of guilt necessarily involved acceptance of a duty, and a breach of that duty. I am advised Waste Management accepted the charged particulars which involved ineffective systems, insufficient monitoring, insufficient protective equipment and insufficient training and supervision.

[3]    WorkSafe also charged Waste Management with an offence under s 47 of the Act which provides:

47       Offence of reckless conduct in respect of duty

(1)A person commits an offence against this section if the person—

(a)has a duty under subpart 2 or 3; and

(b)without reasonable excuse, engages in conduct that exposes any individual to whom that duty is owed to a risk of death or serious injury or serious illness; and

(c)is reckless as to the risk to an individual of death or serious injury or serious illness.

(2)For the purposes of subsection (1), if the person is an officer of a PCBU, the individual to whom the duty is owed is an individual to whom the PCBU owes the duty.

(3)A person who commits an offence against subsection (1 is liable on conviction,—

(a)for an individual who is not a PCBU or an officer of a PCBU, to a term of imprisonment not exceeding 5 years or a fine not exceeding $300,000, or both:

(b)for an individual who is a PCBU or an officer of a PCBU, to a term of imprisonment not exceeding 5 years or a fine not exceeding $600,000, or both:

(c)for any other person, to a fine not exceeding $3 million.

Waste Management denied this charge, in effect disputing the recklessness component (s 47(1)(c)) which is the key additional requirement to the elements of the s 48 charge it had acknowledged.

1      Health and Safety at Work Act 2015, s 48(2)(c).

[4]    The District Court held that WorkSafe had failed to prove Waste Management was reckless.2 WorkSafe seek leave to appeal, saying the District Court erred in its understanding and application of recklessness to the facts. The alleged errors are that the District Court:

(a)wrongly considered that recklessness required appreciation of the specific way the defendant’s conduct might give risk to the prohibited risk;

(b)wrongly rejected a WorkSafe argument that a person who has taken precautions against a risk can only negate that appreciation of the risk by believing the risk is eliminated; and

(c)wrongly conflated the subjective and objective limbs by not recognising a difference between appreciation of a risk of harm, and appreciation conduct might cause harm.

Waste Management submits the District Court made no error, and that WorkSafe’s approach would remove any meaningful distinction between the two offence provisions.

Facts

[5]    The facts now set out reflect the District Court’s findings and are limited to those matters I consider relevant to the appeal.

[6]    There was a project to decommission the Hayward’s power substation. This required work at the substation to remove mercury. Waste Management agreed to accept and dispose of the waste produced by this process. There were two deliveries from Haywards – the first in November 2016 and the second in January 2017. For reasons that do not matter, the first small delivery was of a substance called “mercury water”. It is in effect water with low levels of mercury such that they pose no risk to human health. This sort of waste can be easily dealt with.

2      WorkSafe New Zealand v Waste Management Ltd [2021] NZDC 12388.

[7]    The second delivery, on 30 January, consisted of six containers, each 1,000 litres, of a product which contained sodium sulphide solution and a mercury sulphide precipitate. Its nature is very different to mercury water and it needs very different treatment. Tragically, as it turned out, this material was wrongly classified as mercury water. The bins were placed in a holding area suitable for mercury water, and were never tested.

[8]    The key factual finding in the judgment is that the relevant employees believed they were dealing with a different type of product from that which the waste actually was.

[9]    There was considerable evidence about the actions and knowledge of the on- site chemist but the District Court accepted the chemist also believed the product was mercury water.3

[10]   Some months later, a Waste Management yard supervisor, Mr Ryan Abrahams, decided the day’s work would involve processing the six containers which he, like everyone  else, believed  to be six containers  of  mercury  water.  He did so with   Mr Gideon who was a long-time work companion and friend. The aim was to bring the pH level of the mercury water to 9 so that the mercury would fall out of the solution. This was done by adding zinc ammonium chloride.

[11]   Unfortunately the actual substance, being not mercury water, in fact already had a high pH level and the addition of an acidic substance caused a reaction that released hydrogen sulphide gas. It was this which caused Mr Gideon’s death.

[12]   The processing events of the day were understandably a focus of the evidence, and provided the most likely context for a successful claim of recklessness. This is because the pits where the work was being done are fitted with an alarm that registers unsafe levels of hydrogen sulphide gas. If the gas reaches a level 10 parts per million of the atmosphere, the alarm sounds. The alarm cannot be reset until the level is below 10 ppm. On this day the alarm went off several times.

3 At [115].

[13]   The workers wear protective gear but when the alarm sounds they leave the building and wait until the level drops and it can be reset. This is what happened, but what seems to have been insufficiently focused on was that the alarm should not have been going off so regularly if the waste was mercury water.

[14]   At one point Mr Abrahams rang the chemist (who was not on-site that day) for advice. There seems to have been miscommunication, or, at least by trial, flawed memories. The chemist said he told Mr Abrahams to add lime and “leave it” meaning to stay away from it until he was back on site and could assess what was happening. Mr Abrahams thought this meant “wait a while”, which he did, before continuing.

Law

[15]   It is common ground that the statutory requirement of recklessness, as used in s 48, introduces the concept of conscious risk-taking. It has traditionally been described as recognising that your actions may bring about a consequence and carrying on anyway. In Cameron v R the Supreme Court described it as:4

(a)recognising there was a real possibility that his or her actions would bring about the proscribed result; and

(b)carrying on with those actions in circumstances where, having regard to the risk, it was unreasonable to do so.

[16]   WorkSafe’s submissions in support of leave to appeal require initial further consideration of subjective recklessness and what it involves. The essence of subjective recklessness is in the first limb of the Cameron test. Subjective recklessness is about knowingly doing things that you realise are likely to cause a prohibited outcome. It is the knowledge that your conduct may cause the harm, for example, kill someone, that provides the necessary level of criminal fault. Traditionally, the second limb inquiry of whether the deliberate risk taking was reasonable does very little work.5 The current offence illustrates why.

4      Cameron v R [2017] NZSC 89, [2018] 1 NZLR 161 at [73]. I am limiting the description here to reckless as to consequences which is what this provision is about. In other offences it can be recklessness as to the existence of circumstances.

5      This is noted by William Young J in R v Cameron above n 4, at [74].

[17]   If the first limb is proved, it will have been shown that a worker realised that what he or she was doing carried the real possibility that he or she would kill or seriously injure a fellow worker. It is very difficult to then contemplate any answer to the second question other than it was unreasonable to take that risk. When would it not be? Imagination may produce an example, inevitably framed in the context of emergency, but everyday reality is that it is not reasonable in a workplace context to carry on with a task that knowingly carries the real possibility of death or serious injury.

[18]   Every version or definition of subjective recklessness has included the recklessness limb. The amount of work this limb is required to do depends very much on the connected issue of what level of risk must be foreseen. If, for example, foresight of any risk however remote satisfies the first limb, then the potential reach of the offence is greatly increased. It is then the case that the reasonableness assessment becomes more important, and will be influenced by factors such as the social utility of the conduct and the nature of the risk.

[19]   As the level of risk a defendant must be aware of increases, so the likelihood of it being reasonable to take that risk decreases.6 As noted, Cameron adopted a standard of real possibility, and given that the context is always that the real possibility relates to creating a prohibited outcome, it will seldom be reasonable to do so.

Decision

[20]   The approach of WorkSafe is to seek to find the necessary awareness not in the events of the day but in broad notions of being aware waste management and disposal

6      The broadest reach would probably be achieved by adoption of the Glanville Williams definition of “conscious creation of an unjustified risk”. That would capture foresight of any risk and require the “justification” analysis to provide the brake on over-reach: see Glanville Williams The General Part (2nd ed, Stevens and Sons, London, 1961) at 53–58. Ashworth’s Principles of Criminal Law describes the Williams approach as reflecting the common-law definition of recklessness which it says was satisfied by awareness of “any degree of risk”: Jeremy Horder (ed) Ashworth’s Principles of Criminal law (9 ed, Oxford University Press, Oxford, 2019) at 196. At the other extreme was the Draft US Code which (s 302) required that in order to be subjectively reckless, running the particular risk had to be a gross deviation from the standard expected of a reasonable person. In between was the Model Code (s 2.02) which spoke of foresight of a “substantial” risk. It is unlikely that there is a quantifiable difference between “substantial” and the Cameron test of “real possibility”.

is dangerous if not done properly. Then all the work would be done by the reasonableness limb using an analysis that reflects what is to be expected under s 48. This approach was reflected in the pleaded particulars.

[21]   Consistent with the approach required to offences such as s 48, WorkSafe provided particulars for the s 47 offence. The District Court understood each of the three particulars to be advanced as a standalone basis for liability and it reached individual decisions on each. The particulars were:

Particulars

The conduct engaged in by Waste Management NZ Limited was:

·      knowing the risks involved with hazardous waste, holding mercury waste containing sulphides at the [Seaview Facility] for a period exceeding six months, without undertaking a risk assessment to determine the nature of the hazardous waste held, assessing the risks to health and safety of workers, and then implementing the appropriate controls; and

·      directing and/or permitting workers to process the mercury waste containing sulphides using other chemically reactive substances, without having undertaken a risk assessment to assess the risks to health and safety of workers, and then implementing the appropriate controls; and

·      directing and/or permitting workers to continue processing the mercury waste containing sulphides with other chemically reactive substances including reagents and hazardous waste in the pit, knowing that there was a real possibility that such conduct was exposing workers to potential harm as a result of unsafe levels of hydrogen sulphide gas.

[22]   Particular one  is  instructive.  There is  no reference  to the day on which   Mr Gideon died, or the events leading up to his death, or who had the relevant knowledge. Rather, it focuses on earlier errors which are admitted for the s 48 charge and claims s 47 is also proved. This can only be by a reasoning process that says everyone knows that handling hazardous waste is dangerous, and that not handling it correctly will create serious risks. This product was not handled correctly in the way identified in particular one, therefore serious harm to employees was created, and Waste Management is reckless because it knows mishandling will cause serious harm.

[23]   In my view, this is not a correct approach to s 47. It would, as the respondent suggests, remove any distinction between the two offences whenever the s 48 breaches carry the risk of serious harm. The recklessness would come not from someone having

the requisite knowledge at the time, but from awareness that your business, or a particular activity such as processing waste, can cause serious harm.

[24]   Of the particulars provided, only the third, which looks at the events that actually caused harm to Mr Gideon, carries the potential to establish the charge. The other two particulars refer to background facts that may be relevant to determining whether anyone had the necessary knowledge but are too remote from the events causing Mr Gideon’s death to make out the charge. I also consider that if the provision of particulars is thought necessary for this very different offence, the key particular is identifying the person said to have foreseen the risk.

[25]   Contrary  to  the  applicant’s  submission,  I  consider  the  approach  of  Judge Hastings to the charges was correct.7 Some passages from the judgment illustrate the point.

[26]First:

[83]  Sections 160 and 161 provide that  the  conduct and state  of mind of the person who satisfies the elements of the s 47 offence can be attributed to the defendant. On the basis of the Court of Appeal’s judgment in Commerce Commission v Progressive Enterprises Ltd, I ruled at the pre-trial hearing to dismiss this charge under s 147 of the Criminal Procedure Act 2011 that the conduct and states of mind of more than one person could not be aggregated.8 Thus, for example, Mr Pessina’s decision to let the IBCs stay on site for future testing cannot be aggregated with Mr Abrahams’ decision to begin treating the contents of the IBCs, in order to attribute recklessness to the defendant. The conduct and knowledge of each individual considered separately must be capable of supporting a finding of recklessness attributable to the company. Attribution of the mens rea and actions of individual employees however appeared to no longer be an issue following the evidence. There are a number of significant actors whose conduct and states of mind need to be assessed to ascertain whether they have committed the offence of recklessness alleged. They include Paul Ward, branch manager of the Seaview facility; Ryan Abrahams, the production supervisor; and Frank Pessina, the chemist.

[27]   The Judge’s pre-trial rejection of aggregation reflects a clear understanding of the nature of subjective recklessness. Further, the Judge notes that there were a

7      The District Court Judge likewise observed of particular three that “[t]his is the particular that gets closest to recklessness”: WorkSafe New Zealand, above n 2 at [127].

8      WorkSafe v Waste Management Ltd [2020] NZDC 24553.

number of employees who might be candidates for possessing the required guilty awareness, and the judgment analyses the evidence concerning these individuals.

[28]   The judgment then considered the particulars and reached, again correctly in my view, the assessment that the prosecution would fail to prove its case if it could not show that any of these employees realised the waste was not mercury water. There is no issue of law in this, nor any elevation of fact to an element of the offence. Rather, it is identification of the key fact of which a person would need to be aware in order for it to be reasonable for a Court to infer, beyond reasonable doubt, that the person foresaw their action might cause death or serious harm.

[29]   Next, the following passage is submitted by the applicant to reflect an error of law:

[90] The prosecution submitted that the defendant “need not appreciate exactly how a worker might be at risk of death or serious injury or serious illness, as long as they were aware of exposure to a risk of equivalent magnitude.”9 This submission is helpful in explaining the seriousness of the risk the defendant must have a subjective appreciation of, but it does not help to explain the specific nature of the risk the defendant must have an appreciation of. In Cameron, to have “a guilty state of mind”,10 the Supreme Court said it was not necessary that the defendant knew the precise analogue they possessed as long as they knew it was some kind of controlled drug. By analogy, in this case, to have a guilty state of mind, the prosecution would not need to show the defendant knew the precise chemical reaction that exposed workers to a risk of death or serious injury (mixing acid into a mercury solution containing sulphides creating hydrogen sulphide gas) as long as it could prove they knew it was not just mercury waste, but mercury waste containing sulphides.

[30]   Again I consider the Judge’s analysis to be a correct response to the prosecution’s proposition. More importantly, however, it must be remembered these are case-specific inquiries undertaken against an unchanging background – which is, the individual must be proven to have appreciated their conduct carried a risk of causing death or serious harm. That is the consequence that must have been appreciated. It is important not to confuse what must be proved with the evidence relied on to provide the proof. The obviousness of the route by which the harm will occur is a relevant fact in determining whether the individual appreciated the risk of

9 Prosecution closing submissions at para [106].

10     R v Cameron, above n 4 at [97(b)].

the prohibited harm occurring. It is in that way part of the reasoning process but what must be proved does not change.

[31]   I next address the applicant’s submission that the District Court erred in not accepting WorkSafe New Zealand’s submission that mitigation of a risk can only negate recklessness if the person believes the risk is eliminated. I first observe that in the area of mens rea/guilty mind, care is needed to ensure propositions like this do not obscure the true task. It would better reflect that task if the proposition were worded:

A defendant who has mitigated a foreseen risk but who does not believe he or she has eliminated the risk necessarily must therefore still appreciate the continuing existence of some level of risk when continuing on with the activity.

[32]   As a matter of logical inference that would be so but it does not necessarily mean the prosecution will have discharged its onus. First and most important, the level of risk understood to remain by a defendant must be that there remains “a real possibility” of the prohibited harm (here, death/serious harm). The suggested proposition ignores this.

[33]   Second, and related, acts of mitigation are relevant but pull both ways in the reasoning process. Acts of mitigation inherently involve foresight of a risk since that is what is being mitigated against. Care will be needed though to understand what the perceived risk was before too much weight is attached simply to the fact of mitigation. Second, mitigation equally means it is possible or even likely that the mitigator believes the level of perceived risk has lessened. That is, after all, the purpose of mitigation. The more serious the risk being addressed – for example, the risk of death of a worker – the more one might think a mitigator has acted so as to believe the risk has been reduced to negligible. For these reasons I consider that what underlies the applicant’s second proposed error of law is incorrect. At its heart it seeks to impose a rule on what is a question of fact.

[34]   Finally, concerning Mr Abrahams, the Judge concluded he was negligent but not reckless and observed:11

11 At [123].

… there was no reason for Mr Abrahams to think that beginning treatment of what he thought was simply mercury water would expose his fellow workers to the risk of death or serious injury by treating the waste in the manner he usually treated heavy metals. For these reasons, I cannot be sure the prosecution has proved the defendant acted recklessly in the way alleged in the second particular.

These are findings of fact not susceptible to appeal by the prosecution.

[35]   Further, however, they highlight a somewhat puzzling aspect of this prosecution. Earlier in the judgment, the Judge had commented:

[79] The standard tripartite direction sits awkwardly in this case. The defence called one witness, but the bulk of the prosecution’s evidence was from witnesses who were employees of the defendant through whom the law attributes conduct and state of mind to the defendant. To succeed therefore, the prosecution must show that one of its own witnesses was reckless. No prosecution witness was declared hostile for appearing to exhibit a lack of veracity or an intention to be unhelpful, nor was any prosecution witness given a direction about the privilege against self-incrimination. As will be seen, the prosecution has nevertheless invited me [to] find that aspects of the evidence of its own witnesses lack credibility and should not be believed. This appears to make the third part of the tripartite most relevant to my consideration of the verdict. I would also observe that this sort of inquiry is much better suited to an inquisitorial process than an adversarial one.

The Judge was clearly troubled by this aspect of the prosecution. He was right to be so. To explain, recalling that Mr Abrahams is a prosecution witness, this was his evidence that the prosecution led from him:

It is important for everyone to know that at no time on 22 August 2017 did I realise that we were doing anything to put Jim at risk. I also did not understand that we were putting anybody else, or myself at risk. I would never have done anything to put Jim at risk of harm. I was very close to him. He had come to my wedding and I was friends with his family.

[36]   It is very difficult to understand how the prosecution intended to discharge its burden of proving recklessness beyond reasonable doubt when it led this evidence from the person said to have been reckless. The prosecution task is made more difficult by the objective context which discloses no incentive for Mr Abrahams to consciously run a risk of causing any harm to his friend and workmate. For these reasons I do not consider the prosecution could ever have succeeded, a matter relevant to whether leave to appeal is granted.

[37]   I have addressed this last because it illustrates my conclusion that there is no question of law involved in the proposed appeal. Or certainly none on a topic that requires analysis. The Supreme Court has identified the elements of subjective recklessness, and no error has been identified in Judge Hastings’ articulation of those principles. Worksafe New Zealand’s proposed appeal, in its essence, would be to challenge findings of fact. Further, the current findings of fact that need to be overturned reflect the prosecution’s own evidence.

Should leave be given?

[38]   The parties helpfully provided me with the relevant authorities.12 WorkSafe New Zealand’s proposition is that the way s 47 works requires elaboration and so leave is merited. Waste Management submits that the District Court was correct in what is an orthodox approach and that the applicant is seeking to challenge factual findings.

[39]   This leave judgment has addressed the broader points raised by WorkSafe New Zealand. However, given my conclusions that the Judge applied orthodox law, and that the appeal essentially challenges what I regard as inevitable findings of fact, it is appropriate to decline leave.

Conclusion

[40]The application for leave to appeal is declined.

Simon France J

Solicitors:

Crown Solicitor, Wellington for Applicant/Appellant Wynn Williams, Auckland for Respondent

12 Brown v R [2015] NZCA 325, (2015) 30 FRNZ 471; Auckland City Council v Wotherspoon [1990] 1 NZLR 76 (HC); NZ Apple and Pear Marketing Board v Fruiterers and Growers (1989) 5 CRNZ 104 (HC).