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Safeguard OSH Solutions - Thomson Reuters

Safeguard OSH Solutions - Thomson Reuters



OSH Tracker

Department of Labour v Crasborn Developments Ltd (DC, 15/04/03)

OSH Tracker

Defendant:
Crasborn Developments
A horticultural company, prosecuted following a soil fumigation in which neighbouring residents were affected by toxic gas, had the charges against it dismissed after the judge ruled that it was entitled to rely on the specialised knowledge of its fumigation contractor. 
Industry:
Agriculture, Forestry and Fishing
Sub-Industry:
Agriculture
Risk:
Hazardous substance exposure
Harm:
Injury
Penalty Amount:
$0.00
Reparation Amount:
$0.00
Appeared in Safeguard issue 82

Judgment Text

RESERVED DECISION OF JUDGE A J ADEANE 
Judge A J Adeane
[1]
The defendant is in the business of orchard redevelopment — the replacement of old plantings with new. 
[2]
Procedures include fumigating the topsoil layer to eliminate undesirable entities before replanting. 
[3]
This is achieved by application of the chemical Chloropicrin — a gaseous substance often called “tear gas”
[4]
The gas is mechanically injected into the topsoil by a tractor-drawn five tyned device. The surface needs then to be sealed to slow the gas egress while the chemical takes effect. 
[5]
Sealing is achieved by various recognised methods — one being the compaction by roller application of topsoil having a suitable moisture content. 
[6]
The defendant (“Crasborn”) engaged an independent contractor Fume-It Limited (in the person of its managing director Anthony Schlaepfer) to fumigate its leasehold property at Kohopatiki Road, Clive. 
[7]
The process was undertaken on 1 October 2001. Mr Schlaepfer injected the gas. Meanwhile Mr John Morris, an employee of Crasborn, followed with a roller intended to achieve the necessary sealing effect. The application was, by and large, uneventful. 
[8]
By late evening there were indications that the chloropicrin had not been adequately sealed under ground. There was evidence of escape of the gas both on-site and off. Many near neighbours experienced symptoms consistent with exposure to airborne chloropicrin and it is conveniently admitted as fact that 38 suffered harm in that way. In addition John Morris, the roller operator, suffered sore watering eyes during the last half hour of work. 
[9]
In consequence of this the informant, a Health and Safety Inspector, has laid a total of 41 informations against the defendant under Health and Safety in Employment Act 1992, those being in three categories: 
“Section 6 — being an employer failed to take all practicable steps to ensure the safety of its employee John Morris while at work. 
Section 7 — being an employer failed to ensure that there were in place effective methods for identifying new hazards to employees at work. 
Section 16 — being a person who controlled a place of work failed to take all practicable steps to ensure that a hazard that arose in that place of work, namely chloropicrin, did not harm people in the vicinity of the place of work — namely the 39 affected neighbours. ”
[10]
Each of the numerous informations in the third category stands or falls on identical considerations. 
[11]
These events were investigated by a Health and Safety Inspector who subsequently laid the informations in question. 
[12]
It is known that Mr Schlaepfer and/or Fume-It Limited have also been the subject of appropriate charges with outcomes establishing culpability on their part. 
[13]
These further proceedings are predicated on the informant's view that defendant must share responsibility with Fume-It Limited (as employer of that independent contractor) for events affecting third parties off-site and as employer of Mr Morris for omissions and events affecting him on-site. 
[14]
It is common ground that Fume-It Limited was an independent contractor to defendant and that the materials, plant, equipment and methodology of fumigation was left entirely to Fume-It Limited through Mr Schlaepfer. Defendant approved the particular chemical recommended by Fume-It Limited. Defendant's only further contribution was to supply Mr Morris' labour in driving the tractor/roller. 
[15]
Given defendant's secondary participation informant has elected to specify particular omissions on the part of the defendant in relation to each charge. 
[16]
Counsel are agreed that the onus of showing the omission of practicable steps rests on the informant beyond reasonable doubt. 
[17]
In her evidence (paragraphs 39-46) the informant was permitted to express her opinion of alleged omissions by defendant. 
Under section 6 these were as follows: 
Failure to obtain materials safety data sheet (see exhibit 5) 
Failure to read the manufacturer's label on chloropicrin (see exhibit 6) 
Failure to ensure protective equipment provided to and worn by Mr Morris. 
Under section 7: 
Failure to identify application of ohloropicrin as a hazard — demonstrating system not effective. 
Under section 16: 
Failure “to see whether Fume-It Limited was registered to apply a chemical such as chloropicrin”
Failure to notify nearby residents that application intended. 
No-case submission 
[18]
At the conclusion of the informant's case defendant submitted that no case to answer was established under section 6 or section 7. 
[19]
During her investigation the informant had located both a label (exhibit 3) and a data sheet (exhibit 5) relating to chloropiorin. Neither came from defendant and issues concerning admissibility and proof of contents arise. So too, do matters both of relevance and weight. 
[20]
The data sheet is produced by the manufacturer, presumably for the advice of the next level of handlers. Much of the content is technical in nature and well beyond a level of understanding which might be expected of an end consumer. 
[21]
The label, similarly is ominous in tone but when read seems principally directed to advising “the operator”
[22]
All of this is much in keeping with the proposition that defendant had hired a specialised independent contractor to undertake a potentially hazardous operation. 
[23]
The evidence for the informant (Mr Schlaepfer) goes on to establish that he has been a soil fumigation contractor for 15 years undertaking apple re-plant fumigation in Hawke's Bay for the last 8 to 10 years. The label (exhibit 3) is just one version of two of its kind, the other being less stringent in its terms. Protective equipment is not required when using this product in open conditions and on this day he wore cotton overalls and no mask. He suffered no ill effects. 
[24]
Mr Schlaepfer confirms being asked by defendant's site representative (Mr Sole) whether protective equipment was needed for Mr Morris. 
[25]
He assured Mr Sole that matters would “be fine”, that the chloropicrin was sealed in the ground and was not an issue, that he did not intend to wear a mask himself and that if Mr Morris was nervous he should stay one row behind. 
[26]
Typically of the legislation, the wording of the charge under s 7 is convoluted. It does not allege failure to identify a hazard. It alleges failure to ensure effective methods for identifying new hazards. 
[27]
I find as a fact that defendant was a lay consumer of this product and had prudently engaged a specialist independent contractor to apply it. 
[28]
The evidence of Mr Schlaepfer clearly gives rise to an inference that defendant (via Mr Sole) had an appreciation of the hazards of the procedure consonant with defendant's lay role in it. Likewise, that defendant actively consulted with its specialist independent contractor concerning wellbeing of work place employees involved in that procedure. 
[29]
Defendant was given various pertinent assurances reinforced by the personal example of Mr Schlaepfer. 
[30]
In my view it is not practicably encumbent on defendant to obtain manufacturer's safety data intended for trade use — or to give effect to it. Nor is it practicably encumbent upon defendant to obtain product label in possession of the specialist sub-contractor — or to act on those. 
[31]
Evidence given for informant establishes that defendant made effective enquiries concerning new hazards and responded appropriately and reasonably to advice given. 
[32]
In light of the preceding factual findings I concluded that defendant had no case to answer in respect of CRs 7023 and 7024 which were dismissed during the course of hearing. 
[33]
Those are my reasons for so ordering. 
[34]
[ … ] relation to each of the third parties who was admittedly harmed. That is 
“ … did fail to take all practicable steps to ensure that a hazard that arose in that place of work, namely chloropicrin, did not harm people in the vicinity …  ”
[35]
My findings in respect of the relative positions and knowledge of defendant and Fume-It Limited apply equally in respect of these charges. 
[36]
The issue becomes to what extent should defendant share responsibility for the consequences of actions undertaken by Fume-It Limited. 
[37]
The answer depends on practicable steps which defendant could and should have taken to ensure that the hazard did not result in harm. 
[38]
Again, a semantic issue arises. “Hazard” means 
“a substance … that is an actual or potential cause … of harm. ”
[39]
Even safely and soundly contained chloropicrin would appear to come within that definition, by virtue of potential. 
[40]
In practical terms, the effective hazard in the present case was the escape of the chloropicrin. All of the evidence in the case, particularly the expert evidence of Mr Euan Wallace, tends to support that view. 
[41]
So while chloropicrin was, by dint of its potential, a defined hazard throughout, it became an actual hazard at the point it escaped from the confines intended by its specialist applicator. 
[42]
The definition of “hazard” is drawn with an eye to a multitude of possible contingencies. The words in brackets appear related to “substance” etc. but are presumably intended to relate to “hazard”
[43]
Seen in that light, the charge against the defendant appears to allege that it failed to take all practicable steps in the face of “a hazard that arose in the place of work”. The adequacy and practicability of steps taken would accordingly stand to be judged at the time the hazard arose i.e. when the chloropicrin escaped. 
[44]
That, in turn, might entail quite different considerations from those arising at the time the substance was brought, contained, into the work place by a specialist independent contractor. 
[45]
In particular, it bears upon the two alleged omissions by the defendant which the informant relies on in support of the s 16; allegation specifically, the failure to check the “registration” status of Fume-It Limited and the failure to notify neighbours in advance of the intended use of chloropicrin. 
[46]
The evidence of Mr Schlaepfer and Mr Wallace establishes that there are no legal constraints on the use of chloropicrin. 
[47]
Mr Wallace is co-writer of the NZ Standards Council publication “Code of Practice for the Management of Agri-Chemicals”. That publication is advisory in general, as are the steps which it recommends for persons finding themselves in the position of the defendant in this case. 
[48]
Persons using chloropicrin in New Zealand are subject to neither a compulsory system of registration nor a mandatory code of practice. There is no system of registration or certification for persons undertaking the class of work contracted for between Crasborn and Schlaepfer. 
[49]
The evidence is that Mr Schlaepfer is one of just three contractors engaged in that work throughout New Zealand. 
[50]
On the evidence I have heard I am not satisfied that further enquiries were encumbent upon defendant into the credentials of Fume-It Limited. Nor that such enquiries, had they been made, would have lead to any different outcome. 
[51]
So far as warning neighbours is concerned (the Standards Code recommends it) the timing of the hazard becomes an issue. It would not be practical to issue a warning at the time the escape became known. An earlier warning that the application was intended might have lead neighbours to an earlier appreciation of the cause of their discomfiture — but that is conjectural and would not have materially altered the risk or the outcome. 
[52]
The expert evidence of Mr Wallace is that defendant could not be expected to oversee and regulate a specialist independent contractor in circumstances such as these. 
[53]
I accept that that is a decision for the Court rather than for witnesses to advise but Mr Wallace's evidence is seen to embrace both prudent trade practice and also the present state of knowledge in the industry. I see no reason to form a view different from the one he has expressed. In particular, I am not satisfied beyond reasonable doubt that either of the two specific measures advanced by the informant constitute practical steps which defendant might have taken at the material time and in the circumstances then applying. 
Complete absence of fault 
[54]
Finally, defendant raises a defence of complete absence of fault. 
[55]
In accordance with the Act it is incumbent upon defendant to establish that defence on the balance of probabilities. 
[56]
The following facts arise from the evidence of Mr Wallace. 
“Chloropicrin is heavier than air. 
The movement of escaping chloropicrin in this case was governed by unique local topographical features. 
Added to this were unforeseen climatic conditions of high atmospheric moisture. 
Finally, the intended ground sealing effect was diminished by lack of soil moisture. ”
[57]
The combination of these four factors lead to the chloropicrin escaping in the manner and with the consequences which it did. Absent any one of those factors it is the evidence of Mr Wallace that this hazard would not have arisen. 
[58]
It needs to be remembered that this strange combination of circumstances visited itself upon an activity which was primarily the responsibility of Fume-It Limited. 
[59]
In those circumstances, I am satisfied on the balance of probabilities that defendant was entirely without fault in what occurred. 
[60]
For those reasons the remaining informations are dismissed also. 
[61]
On the question of costs and expenses it is open to the parties to file a memorandum within 28 days. 

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