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Safeguard OSH Solutions - Thomson Reuters

Safeguard OSH Solutions - Thomson Reuters



OSH Tracker

Barnett v March Construction Ltd (DC, 10/05/05)

OSH Tracker

Defendant:
March Construction Ltd
No separate traffic plan requiredA five-minute manhole inspection, during which an employee was struck by a car, did not need a separate traffic management plan because it was in a designated road works zone.  Dismissing a s6 charge against civil engineers March Construction Ltd, Judge D J L Saunders found that preparation of a traffic management plan (TMP) was not a practicable step the company should have taken (Christchurch DC, May 10).  The February 2004 incident took place when an employee, J, was checking air valves during work on Christchurch’s wastewater infrastructure. He parked his orange utility between the manhole and kerb, with its hazard lights on. Company contracts manager, M, parked behind the manhole, which was in a 30 km/h road works zone, and stood nearby to alert motorists.     As J emerged from the manhole, a vehicle driven by an unlicenced driver approached at approximately 40 to 50 km/h, forcing M to leap out of the way and striking J, who was knocked unconscious.   Department of Labour claims that the work should have had a TMP were rejected as “grossly disproportionate” to the risk, although the judge said such measures might have been warranted had the work not been in a road works zone. 
Industry:
Construction
Sub-Industry:
General Construction
Risk:
Vehicle - road (eg truck, car, bus)
Struck by moving object
Harm:
Injury
Penalty Amount:
$0.00
Reparation Amount:
$0.00
Appeared in Safeguard issue 94

Judgment Text

RESERVED DECISION OF JUDGE D J L SAUNDERS 
Judge D J L Saunders
[1]
On 2 February 2004 an employee of March Construction Limited was carrying out duties in the vicinity of McGregors Road/Hay Street intersection in Bromley, Christchurch. 
[2]
In the course of his duties that day the employee, Andrew Johnson, was asked to check if three air valves were turned on and functioning. One of the air valves, referred to as AV 3, was situated under the road surface near the McGregors Road and Hay Street intersection. Access to the air valve was via a manhole situated towards the midpoint of the road. 
[3]
After checking two other air valves Mr Johnson proceeded with Mr Andrew March to the area adjacent to AV 3 where it was expected a check would be carried out beneath the road surface. 
[4]
Before undertaking the check Mr Johnson positioned his orange utility truck near the manhole cover and activated his hazard lights. Mr March positioned his vehicle behind the manhole and to the left of the road near the kerb. The evidence was not clear if the hazard lights on Mr March's vehicle were operational at the time, although Mr March believed that was the case. 
[5]
The activity planned involved the lifting of the manhole cover and a brief inspection of the state of the air valve. While Mr Johnson was undertaking this inspection Mr March was to remain positioned above the manhole cover to alert any motorists to the fact that work was in fact being carried out in that area. 
[6]
It was common ground between the prosecution and defence that the work was being carried out within a designated road works area carrying a 30 kph speed restriction. 
[7]
While Mr Johnson was below the road surface checking the air valve a car being driven by an unlicensed motorist proceeded along Hay Street and failed to heed, what must have been obvious to any observant motorist, the presence of Mr Andrew March. 
[8]
It is clear that Mr March became aware of the existence of this errant motorist at a point when the vehicle was only a few metres from his position. Mr March was obliged to take immediate evasive action and his predicament was not immediately to his co-worker who at that time was commencing his exit from the manhole cover. 
[9]
The consequence of the actions of the motorist was potentially very serious with a real risk of a fatality. 
[10]
The observations of Barbera Hughes, another motorist stopped at the McGregors Road intersection, independently supported the evidence of Mr Andrew March. 
[11]
Mrs Hughes noted that Mr March was wearing a high visibility fluorescent reflectorised jacket and was positioned directly next to the manhole. The witness confirmed that Mr March had to jump back suddenly and the motorist proceeded to run over the manhole cover at which point she heard a loud thud. 
[12]
The motorist who was responsible for driving on Hay Street was not called as a witness and it was acknowledged that following a Police inquiry the driver was not prosecuted either for careless use or failing to stop, both offences which could have been sustained on the evidence given at the hearing before me. 
[13]
The reason for this lack of prosecution action appeared to be related to the driver having a mental disability and the fact that her licence had already been revoked. 
[14]
An investigation into this serious injury accident was carried out by both Police and a Health and Safety Inspector from the Department of Labour. 
[15]
After interviewing Mr Andrew March, as well as considering the statements of other witnesses, a charge under sections 6 and 50 (1) (a) of the Health and Safety in Employment Act 1992 was laid. 
[16]
The informant alleges that the defendant company as an employer, failed to take all practicable steps to ensure the safety of its employee, Andrew Ian Johnson while at work, in that it failed to take all practicable steps to ensure Andrew Johnson was not exposed to hazards arising out of working on a public road. 
[17]
Counsel for the informant drew the Courts attention to the relevant case law relating to the statutory scheme which came into force in April 1993. In particular, counsel relied upon the dicta of the full bench of the High Court in Department of Labour v de Spa & Co Ltd [1994] 1 ERNZ 339Has Cases Citing which are not known to be negative[Green]  p341: 
“It is obvious from this legislative scheme that Parliament has deliberately placed on employers a positive duty to seek out hazards in order to determine whether they are significant and if they are, to eliminate them, isolate them or minimise them, as the case may be. What is important is that the Act casts on employers these positive duties. ”
[18]
That case has been followed by Justice Ellis in Tranz Rail Limited v Department of Labour [1997] 1 ERNZ p316 where Ellis J. noted: 
“The obligations on an employer are uncompromising and onerous. An employer must be proactive and anticipate harm and take all practicable steps. ”
[19]
It was acknowledged that the Act does not require an employer to provide complete protection but rather to take all reasonably practicable steps to guard against potential hazards. See Buchanan's Foundry Limited v Department of Labour [1996] 1 ERNZ 333Has partially negative history or cases citing, but has not been reversed or overruled[Yellow] 
[20]
Finally it is acknowledged that the Court of Appeal in Central Cranes Limited v Department of Labour [1997] 3 NZLR 694Has Cases Citing which are not known to be negative[Green]  accepted that the question of what is practicable is a matter of fact and degree in each particular case. 
[21]
After drawing the Court's attention to section 2A of the Act, counsel submitted the issue in this case was whether the defendant took all practicable steps having regard to the current state of knowledge about the means to achieve the result and availability of those means. 
[22]
Relevant to the application of the test to be applied is the case of Buchanan's Foundry referred to above where Hansen J stated at p747: 
“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 in the measures necessary for averting the risk (whether in money, time or trouble) is placed in the other, and that, if it be shown that there is a gross disproportion between them - the risk being insignificant in relation to the sacrifice - the defendants discharge the onus on them. Moreover, this computation falls to be made by the owner at the point in time anterior to the accident. ”
[23]
Applying that test the informant argues that the defendant should have taken the following steps: 
a)
To implement a Traffic Management Plan for the work that was being carried out at the time of the accident. 
b)
To have ensured that the work carried out at AV 3 was in accordance with the Code of Practice. 
[24]
Mr James, counsel for the defendant, submitted that this case fell to be decided by application of a common sense test to the matters submitted by the informant. 
[25]
In particular, it was submitted that the work was of such brief and unexpected nature that it would not have been reasonably practicable to file a traffic management plan for the consideration and approval of the local authority. 
[26]
While the Code of Practice was a very detailed document it was not binding on this work. Mr James argued that the Traffic Management Plan submitted was to be looked at in the light that it had been approved for the substantial work being undertaken and traffic movement in the area was expected to comply with the limited speed restriction and knowledge that road works were on going within the zone. 
[27]
The inspection to be undertaken involved less than a five minute job which was outside the planned work but well within the designated work zone. 
[28]
To have required a separate traffic management plan to be submitted for such a brief interruption to any traffic flow was not a practicable step which needed to be undertaken. 
[29]
Secondly, the Code of Practice was a recommended guide not having the force of law of what is generally accepted by use of the word “Code”
[30]
Mr James submitted that the positioning of the vehicles, along with the presence of Mr March in a high visibility jacket alongside the work zone amounted on any objective test to all practicable steps required for this work. 
[31]
Relevant to the assessment of the risk was the brief nature of the work coupled by the fact that a limited number of vehicles lawfully being driven in that area negotiated the works without any incident. The presence of a driver who was unlawfully on the road and apparently not complying with the speed limit or observing the readily observable hazard was something the employer could not have foreseen. 
[32]
In this case I am satisfied that it would have been unreasonable, and indeed impracticable, to have expected the defendant to have filed a traffic management plan for this specific work. 
[33]
The work was being undertaken in a designated work zone where motorists had been appropriately warned of the fact of road works. To have expected a plan to be filed and approved by the local authority for this minor inspection of a sewer valve is grossly disproportionate to the risk that existed. 
[34]
I consider that the positioning of the March vehicle with hazard lights operating coupled with the presence of a visible employee in close proximity was a sufficient response to the anticipated risk. 
[35]
Furthermore, while I accept that the Code of Practice provides guidelines to the type of signage and restrictions appropriate to roadworks, it was not a mandatory requirement for this work. 
[36]
Had this work been carried out in a non designated area without any warnings then there may well have been some force in the informant's case that a failure to implement appropriate warning was a practicable step which could be taken. 
[37]
In short, I am satisfied that on the evidence presented, including that of Mr March, that the company has discharged the onus, on the balance of probabilities, to show that all reasonably practicable steps to minimise risk to an employee were taken in this case. 
[38]
Accordingly, for the reasons given I have reached the conclusion that the charge against March Construction Limited must be dismissed. 

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