Skip to Content, Skip to Navigation
Advertisement

Safeguard OSH Solutions - Thomson Reuters

Safeguard OSH Solutions - Thomson Reuters



Health, Safety, and ACC

9.5 Strict liability, recklessness and attribution

9.5
Strict liability, recklessness and attribution
The following cases provide guidance from court decisions on offences. Guidance on future case law decisions arising from the HSW Act may come from Australian court decisions concerning similar provisions under the Australian Model Law.
9.5.1
Strict liability offences
Tier 2 and 3 offences under the HSW Act (see [7.1]) are offences of strict liability (see Civil Aviation Department v McKenzie [1983] 1 NZLR 78 (CA) for a full discussion of mens rea offences, offences of strict liability and offences of absolute liability.) This means that while the prosecution does not have to prove any mens rea or intention to make out the offence, the defendant nonetheless can raise, on the balance of probabilities, the limited defence that he or she has taken all reasonable steps to avoid carrying out the offence (i.e. an absence of fault), with that concept of reasonableness being determined objectively (see for example, McLaren Transport Ltd v Ministry of Transport [1986] 2 NZLR 81).
Note that the majority of the offences under the HSE Act were treated by the courts as being strict liability offences. Defendants could circumvent liability by raising a defence of an absence of fault. So, for example, in Buchanans Foundry Ltd v Department of Labour [1996] 3 NZLR 112, Buchanans had operated a furnace which, after an explosion, sent a spray of molten metal and solid scrap into the air, seriously injuring two workers. Buchanans was prosecuted for failing to take all reasonably practicable steps to ensure the safety of its employees, in particular by failing to ensure that those employees were wearing adequate protective clothing. At first instance, the District Court Judge made a number of findings in favour of Buchanans, including that it had taken all reasonably practicable steps to protect the heads of workers from known hazards, that it had identified known hazards and implemented an education and safety programme, and that workers had been required to wear protective clothing. The Judge found, however, that Buchanans had failed to take all reasonably practicable steps to ensure the safety of workers while working in the ordinary course of business, by failing to provide a particular form of protective clothing which would have given a greater measure of protection from the materials in the overalls igniting. On successful appeal to the High Court, Buchanans relied on expert evidence that the particular protective clothing favoured by the first instance Judge had some other disadvantages, including the risk of steam burns.
Hansen J in the High Court confirmed that the offence created by s 50 of the HSE Act was one of strict liability, which had available to it a defence of absence of fault, the onus of proving which lay, on the balance of probabilities, with Buchanans (at [115]). Hansen J also confirmed (as discussed in chapter 8 and applying Edwards v National Coal Board [1949] 1 KB 704) that the HSE Act required an employer to take all reasonably practicable steps to guard against potential hazards, rather than to provide a certain, complete protection against all potential hazards. In determining whether or not Buchanans had taken all practicable steps, the matter must not be judged with the benefit of hindsight but, rather, on the basis of what had been known at the relevant time. Finally, his Honour found that clothing which would have guarded against all identifiable hazards had not been available so that a compromise solution was needed. In the circumstances, the Judge found that Buchanans had taken all reasonably practicable steps to avoid harm and had therefore established, to the requisite standard, the defence of absence of fault (at [119]).
As against the Buchanans Foundry approach, in Linework Ltd v Department of Labour 2 NZLR 639 (CA), the Court of Appeal, inter alia, confirmed that liability under s 6 of the HSE Act was “strict liability” in that proof of intention was not needed to be established by the prosecution, but that the burden of proof regarding the taking of all practicable steps remained with the prosecution (at [39]). This would suggest that once that element was established, there was no scope for a defence of all reasonable steps being taken.
However, the District Court still allowed an absence of fault defence in cases following Linework, for example, see Department of Labour v Sicon Ltd [2005] DCR 490; Department of Labour v Cardrona Ski Resort Ltd (District Court, Queenstown Registry, CRN 2008-059-500085, 25 May 2009, Judge BP Callaghan) and, on appeal where Panckhurst J endorsed the Linework approach, in Cardrona Ski Resort Ltd v Department of Labour (High Court, Invercargill Registry, CRI-2009-425-000016, 11 September 2009, Panckhurst J). Most recently, in the high profile decision in Department of Labour v Pike River Coal Ltd [2013] DCR 523, in which Pike River Coal Ltd itself faced a number of charges under the HSE Act (not actively defended), Judge Farish noted:
The informant accepts that at all times it has the onus of proving all the elements of the event, including the failures to take all practicable steps. Once that onus has been discharged, there is no scope for a defendant to argue that there is any defence of due diligence or total absence of fault.” (at [30] citing Department of Labour v Gibson O’Connor Ltd (District Court, Auckland Registry, CRN 90040509901-5, 16 February 2001, Judge Morris).
Judge Farish’s statement above reflects what, in this writer’s view, is the logical approach given the elements the prosecution must establish. It remains to be seen, however, what approach the courts will take to the strict liability provisions in the HSW Act.
9.5.2
Recklessness and liability
The Tier 1 offence under the HSW Act incorporates the notion of “recklessness” into a consideration of liability. In the New Zealand criminal context, this means that there must be a conscious taking of the risk involved, in terms of knowledge of the risk but proceeding regardless (R v Harney [1987] 2 NZLR 576 (CA)). In reality, Tier 1 offences will be reserved for the most serious offences, just as offences under s 49 of the HSE Act (which required proof of “knowledge”) were reserved for the most serious of cases (H Armstrong and R Brier “Enforcing the Act” [2003] NZLJ 259).
Crucially, an officer of a PCBU may be convicted of an offence against s 44 whether or not the PCBU has been convicted of an offence relating to the duty or obligation.
Volunteers do not commit an offence for a failure to comply with a health and safety duty except as a duty as a worker or a duty as “another person” at a workplace.
Certain other office-holders are precluded from being found liable for a breach of the duties owed by officers (namely members of a community board, members of the governing body of a local authority, members of a local board and trustees of a school board.
Actions taken by one person to prevent harm to another person do not result in criminal liability.
9.5.3
Attribution
Where civil or criminal proceedings are brought under the HSW Act concerning conduct of a person other than an individual, and it is necessary to show the state of mind of that person, it will be sufficient to show that an officer, employee, or agent of the person, acting within the scope of his or her actual or apparent authority, had that state of mind (i.e. the concept of attribution).
State of mind” in relation to a person, includes the knowledge, intention, opinion, belief, or purpose of the person and the person’s reasons for that intention, opinion, belief, or purpose.
Further, conduct engaged in on behalf of an individual (person A), by an employee or agent of person A acting within the scope of his or her actual or apparent authority, or any other person at the direction of, or with the consent or agreement (express or implied) of person A, or an employee or agent of person A given within the scope of his or her actual or apparent authority, must be treated as having been engaged in also by person A for the purposes of the HSW Act.
Conduct engaged in on behalf of a person (other than an individual) by an officer, employee or agent of the person acting within the scope of actual or apparent authority, or any other person at the direction or with the consent or agreement (express or implied) of an officer, employee or agent acting within the scope of actual or apparent authority, must be treated as having been engaged in by the person for the purposes of the HSW Act.
For a discussion of attribution under the HSE Act, see the Court of Appeal decision in Linework Ltd v Department of Labour [2001] 2 NZLR 639 (CA), where the Court of Appeal held that where an Act of Parliament imposed duties on a corporation in respect of safety at work, the relevant acts and omissions of the person in effective charge of the work site were attributable to the corporation. In that case, the foreman was the embodiment of the company and the fact that he was personally liable to prosecution did not exculpate the company from its own breach of duty.
Similarly, in Department of Labour v Industrial Machinery Holdings Ltd (District Court, Blenheim Registry, CRI-2002-085-802386, 24 November 2004, Judge Walker), the Judge emphasised (at [6]) that:
[a] company operates through its human officers. There is no ability in fact to make decisions on its own so it is the failure of Mr Mann which in fact renders the company liable at all. Those who are agents or officers of companies need to know that they cannot shelter behind the corporate veil.”
See also Department of Labour v Icepak Coolstores Ltd (District Court, Hamilton Registry, CRI-2009-019-11343, 15 December 2009).

From Health, Safety, and ACC

Table of Contents