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OSH Tracker

Department of Labour v Hassett t/a Hassett Builders (DC, 01/05/06)

OSH Tracker

Defendant:
Apex Construction
Building industry confusion about the need for fall protection at heights of less than three metres did not absolve a construction company and its contractor from liability for a 2.2 metre fall which left the contractor’s employee a tetraplegic, a District Court judge has ruled. 
Judge Barbara Morris convicted Apex Construction Ltd under s18(1)(a) of the HSE Act, and Glen Raynor Hassett, trading as Hassett Builders, under s6. Both parties were fined $2000 and ordered to pay $22,500 to the injured man ( North Shore DC, 1 May). 
The judge said the Department of Labour must take some responsibility for the widely held belief that a drop of less than three metres did not require a risk assessment, but the likelihood of injury in a fall from the unguarded deck where the accident occurred justified the relatively easy and inexpensive step of providing guard rails. 
In July 2004, Hassett, an experienced builder, was working on a house at Warkworth on behalf of Apex Construction. Scaffolding was installed on the high side of the house, but a partially built deck provided access to the other side. On the day of the accident Hassett’s employee was working off the deck, fixing building paper, when he tripped on a length of paper and fell onto the sand below, breaking his neck. 
The judge rejected defence claims that the risk of such a fall was not great, noting that as the deck and stairs provided the only access to that side of the house, there was an obvious and reasonable possibility that a worker might fall while concentrating on a task. 
She accepted, however, that residential builders believed injuries were unlikely in a fall of less than 3m, and cited Regulation 21 of the HSE Regulations, which requires fall protection for any surface above that height, as part of the reason. 
Industry:
Construction
Sub-Industry:
General Construction
Risk:
Fall from height
Harm:
Injury
Penalty Amount:
$24500.00
Reparation Amount:
$22500.00
Appeared in Safeguard issue 99
Defendant:
Glen Raynor Hassett
Building industry confusion about the need for fall protection at heights of less than three metres did not absolve a construction company and its contractor from liability for a 2.2 metre fall which left the contractor’s employee a tetraplegic, a District Court judge has ruled.   Judge Barbara Morris convicted Apex Construction Ltd under s18(1)(a) of the HSE Act, and Glen Raynor Hassett, trading as Hassett Builders, under s6. Both parties were fined $2000 and ordered to pay $22,500 to the injured man ( North Shore DC, 1 May). 
The judge said the Department of Labour must take some responsibility for the widely held belief that a drop of less than three metres did not require a risk assessment, but the likelihood of injury in a fall from the unguarded deck where the accident occurred justified the relatively easy and inexpensive step of providing guard rails. 
In July 2004, Hassett, an experienced builder, was working on a house at Warkworth on behalf of Apex Construction. Scaffolding was installed on the high side of the house, but a partially built deck provided access to the other side. On the day of the accident Hassett’s employee was working off the deck, fixing building paper, when he tripped on a length of paper and fell onto the sand below, breaking his neck. 
The judge rejected defence claims that the risk of such a fall was not great, noting that as the deck and stairs provided the only access to that side of the house, there was an obvious and reasonable possibility that a worker might fall while concentrating on a task. 
She accepted, however, that residential builders believed injuries were unlikely in a fall of less than 3m, and cited Regulation 21 of the HSE Regulations, which requires fall protection for any surface above that height, as part of the reason. 
Industry:
Construction
Sub-Industry:
General Construction
Risk:
Fall from height
Harm:
Injury
Penalty Amount:
$24500.00
Reparation Amount:
$22500.00
Appeared in Safeguard issue 99

Judgment Text

RESERVED JUDGMENT OF JUDGE B A MORRIS 
Judge B A Morris
Introduction 
[1]
On 30 July 2004 Mr Rhett Brown fell off a deck while building a residential home. Tragically that accident left him as a tetraplegic. 
[2]
The Department of Labour says both his employer, Mr Glen Hassett and the principle who engaged Mr Glen Hassett, Apex Construction Limited, should have taken further, reasonably practicable steps to ensure Mr Brown was safe, i.e. to ensure he was not unreasonably exposed to the risk of a fall from height. 
Mr Hassett 
[3]
Specifically the Informant says Mr Hassett should have: 
Provided a guard rail around the deck. 
Ensured the planks on the deck were 75mm greater than the 600mm provided. 
Alternatively to the above, planked out the entire deck before allowing Mr Brown to use it for purposes of access or to work from. 
The Informant also says the staircase leading to the deck should have had a handrail. 
Apex 
[4]
In respect of Apex the Informant says that when it contracted with Mr Hassett to build the home, it should have: 
Ensured Mr Hassett had a safety plan to identify and deal with the hazards on site, before it allowed work to commence; 
The informant also says due to Apex's close working connection with this project and the fact a Director made frequent visits to the site, it should have ensured Mr Brown was provided with the fall protection indicated above. 
[5]
Section 6 of the Health and Safety in Employment Act 1992 (the Act) provides: 
“Every employer should take every practicable step to ensure the safety of employees while at work …  ”
There is also however, Regulation 21 which has come to be known in the residential construction industry as the “the 3 metre rule”. That provides- 
 
(2)
Every employer shall take all practicable steps to ensure, in relation to every place of work under the control of that employer, that, where any employee may fall more than 3 metres, - 
(a)
Means are provided to prevent the employee from falling; and 
(b)
Any means so provided are suitable for the purpose for which they are to be used. 
[6]
That is an odd Regulation in that the requirement is already there in general form in s 6 of the Act. Counsel have not argued however that this is the only obligation in respect of falls. It is accepted, sensibly, that the s 6 obligation remains, so that an employer in all cases, even when the fall would be less than 3 metres, must assess whether it is reasonable to provide fall protection. There might be a particular risk, such as the presence of sharp objects under a working platform, or the practicability of providing protection in light of the duration of the use of the platform may lead to an assessment that it is easy and sensible to provide fall protection notwithstanding the fact the risk of a fall is less than 3 metres. 
[7]
Certainly however on the evidence, that Regulation, and arguably industry and OSH publications, seem to have led the industry into a practice of not providing fall protection where the risk of a fall is less than 3 metres. Having read the regulations and seen the publications I can understand why that has come about. 
Factual Background 
Relationship of Parties 
[8]
Apex Construction is a relatively small company involved in the residential construction industry. In most cases it employs it's own staff to build houses but occasionally it contracts with other people to build the houses for them. This was one of those cases. The Directors of Apex knew Mr Hassett, a local builder in the same district of Warkworth. 
[9]
Mr Hassett, who employed only Mr Brown, was to provide the labour and basic builders tools and any other equipment required on site was provided by Apex. The company, through its Director Mr Woolford, had close contact with Mr Hassett as he came onto the site every couple of days. If Mr Hassett required any particular equipment he would inform Apex and the items would be delivered to the site. 
[10]
The house in question was a medium sized dwelling with two floors. It is not clear whether the bottom story was for living accommodation or whether it was simply a basement but certainly the lounge and living area was on the second story. The plans provided for decking out from the top floor and it was from this decking that Mr Brown fell, on 30 July 2004. 
[11]
The method of providing a working platform for the construction varied. There was scaffolding on one side which had both top and midguard rails. It seems that the risk of the fall from that area was greater than 3 metres. Around the comer from that scaffolding there was the deck itself and which had been built as far as the joists but had not yet been decked out with planks. Mr Hassett had nailed three planks to the joists which in totalled measured 600mm in width. 
[12]
This deck was to provide the access to the second floor, and was the only platform provided as of 30 July 2004, from which work on the front face of the building could be done. 
[13]
The method of getting onto the deck and thereafter into the house itself was via a set of stairs, provided by Apex, that Mr Hassett had attached to the top of the deck. The staircase was a permanent construction which was used by Apex on other sites. It was sturdy and wide with approximately 15 steps to the top to the height of approximately 2.2 metres. The staircase however, had no handrails provided on either side of them and the potential to falll to the ground existed on either side of the stairs. To the side of the decking and stairs there was mostly sand although immediately below the outer perimeter of the deck there was an area of gravel. 
[14]
As at the day of the accident the framing had been put up and the stage was reached where the building paper had to be affixed. The final phase of the construction was to be the cladding. 
Accident 
[15]
On the day of the accident Mr Brown was about to affix building paper onto the face of the building immediately in front of the deck. The system was he would go up the stairs, onto the planks and measure the area of the frame to be covered and he would then go back down the stairs, cut the building paper and carry it back up to affix it to the face of the building. He had measured the area; gone to pick up the paper; and carried it back up the steps but when he got to the top he realised he had forgotten his staple gun. He tucked the paper in a noggin and turned to go back down the stairs. Unfortunately, his feet became entangled in the paper and although he tried to regain his footing by placing them on one of the joists he was not able to do so and he fell off the deck onto the sand below and tragically broke his neck. 
Issues 
[16]
The issues that have to be resolved are these - 
(1)
What is the current state of knowledge about the likelihood of harm and the extent of harm from a fall of this height? 
(2)
Bearing that in mind and all the other factors, including those set out in s 2 of the Act, were there further reasonable practicable steps that Mr Hassett and/or Apex should have taken to reduce the risk of a fall from that height? 
Law 
[17]
Section 6 of the Act, which I have already mentioned, provides that every employer must take all practicable steps to ensure the safety of employees while at work and specifically to provide a safe working environment where they are not unreasonably exposed to hazards. 
[18]
Section 18 provides for similar duties in respect of principals when they contract with other individuals to carry out their work. That section states: 
(1)
Every principal shall take all practicable steps to ensure that- 
(a)
No employee of a contractor or subcontractor; 
is harmed while doing any work (other than residential work) that the contractor was engaged to do. 
[19]
The burden of proof in respect of each element of the offence is of course, on the Informant. There is no dispute with the fact that Mr Brown was employed by Mr Hassett, nor that Mr Hassett was a contractor to the principal Apex. There is also no issue with the fact that Mr Brown was exposed to a hazard. The only issue is whether those two defendants should have taken further steps to reduce the risk of a fall. 
[20]
Section 2A defines practicable steps thus: 
(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 tb.e 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 personn knows or ought reasonably to know about. 
[21]
“Safe” and “Safety” means the person is not exposed to any hazards and hazards are anything which cause the natural or potential source of harm. Harm means, relevantly, “illness, injury or both”
Case Law 
[22]
There has been substantial guidance from both the Court of Appeal and the High Court in interpreting this legislation. The Court of Appeal in Central Cranes Limited v Department of Labour (1997) ERNZ 520, at 527 stated: 
“It is clear that the Act adopts a preventive approach to maintaining and promoting health and safety in the workplace. Its principal object is to provide for the prevention of harm. To achieve this object employers are required to promote safety in the workplace and both employers and others associated with the workplace are subject to the duty to take all practicable steps to ensure such safety or ensure that employees and others in the workplace are not harmed …  
… The Act does not then adopt a prescriptive approach to the duties of those made responsible for safety in the workplace. It provides a comprehensive set of general principles but leaves the detail of acceptable practices to be worked out and implemented by regulations and codes of practice within the various industries. ”
[23]
The case law has also made it clear that employers have a duty to seek out hazards. As was said in Department of Labour v de Spa & Co Ltd [1994] 1 ERNZ 339Has Cases Citing which are not known to be negative[Green] , 341: 
“It is obvious from the 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 whether 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. ”
[24]
Those duties have been described in other cases as “uncompromising and onerous” but it is equally clear that the Act does not require an employee or principal to guarantee an environment where injuries cannot ever occur and nor should they be charged with hindsight not available to a reasonable person making the assessment at the time. What is required is a balancing act and an assessment involving the likelihood of an accident, of injury occurring, and comparing that with the cost and practicality of either eliminating or reducing that risk. That assessment for the court is a matter of fact and degree and will depend on a number of factors including the type of organisation involved. A large multinational company may be in a position to more easily and practicably provide protection than a small operator. 
Practicable Steps 
[25]
When s 2A refers to “current state of knowledge” I consider that must mean the current state of knowledge in the particular industry concerned and here that would be the residential building industry. 
[26]
What must be assessed, in a situation such as this then, is first what may happen to a person if they fall from this height and onto this surface. Is it likely to be death or at the other end, a very minor injury? Having determined that, what then is the likelihood of those injuries occurring. It is the current state of knowledge about the likelihood that is important. All this section is really saying is that people can only anticipate, and therefore seek to prevent, risks they know about or should reasonably know about. It is not enough if a scientist has been working away in the backroom and has discovered that significant injuries can occur at a relatively low height previously thought to be safe. That information must be generally known to the industry before the whole industry will be “deemed” to know of it. 
[27]
It seems to me however, there may be a distinction between industry practice and industry knowledge. I have heard much evidence, which I shall deal with later, about what work platforms the industry provides for workers particularly when they are working in a situation where the risk of a fall is less than 3 metres. 
[28]
I accept I can use that evidence to indicate the level of knowledge of risk of harm. If the risk is there, however, and obvious for all to see, the fact that the practice is not to deal with that risk is no answer to the charge. 
Section 2A(2) - Time when steps are to be taken 
[29]
Mr Bradford for Apex argued very competently that the issue in respect of s 2A(2) is what further steps should have been, taken on the day of the accident, and the pertinent question is what was known to Apex about the work being done on the day in question. He says that on the day there is no evidence Apex knew Mr Brown would be using the deck for affixing building paper. They were not on site and Mr Brown said up until that day he had simply used the deck for access only, and did not intend to use it for any reason other than the building paper. 
[30]
I consider the enquiry is wider than what steps ought to have been taken on that day. First there is no requirement in s 18 that harm is actually caused to the person so the accident is simply the impetus for the prosecution. The enquiry is what steps ought to have been taken to reduce the risk of a fall rather than to avoid this particular accident. 
[31]
I note the informant does charge that this offence occurred on or about the 15 July 2004 but the enquiry is what steps should have been taken, regardless of when, to ensure he was safe on this platform on or about the 15 July 2004. 
[32]
As for the effect of s 2A that, in my view, is a curious addition as in my respectful view it adds little to what was already provided for in s 6. A step is only reasonably practicable in respect of a risk, if the person with the obligation to eliminate or reduce that risk knew, or ought to have known of the circumstances that created it. If the reasonable person would not have known of those circumstances and therefore the risk, then the reasonable person would not have to take any steps to change those circumstances. It is already implicit in the operation of s 6 that a reasonable person will only take steps to avoid those risks that they know about or ought reasonably to have known about. 
[33]
In any event I do not consider this provision should be read in the narrow way argued. The principal may not know exactly what an employee of a contractor is doing on any one day but it is sufficient that they know about the general processes and steps that must, at some point, be taken to complete the task. Here, though in this case Apex may not have known, that on 15 July 2004 Mr Brown would be using the platform to put up building paper, it is enough that they know, or ought to have known, of the general type of work that the platform was to be used for. It was sitting there and set up as a working platform for that face of the building and that would have had to include putting up building paper. Mr Hassett confirmed that. 
Strict Liability 
[34]
There have also been submissions that this is a Strict Liability offence and submissions have been made about the Common Law defence of “total of absence of fault”
[35]
In my view that defence would add nothing to this provision and it would be pointless to read it in. The defence is read into Statute's silent on the issue of mens rea. In the case of a regulatory offence it is thought to be too harsh to have no defence at all, and too soft to have full mens rea. As a middle ground the common law provided that for those types of offences there would be a defence of “total absence of fault. 
[36]
Here the Statue is not silent on that issue. All “reasonably practicable steps” must be so close to “total absence of fault” that to provide such a defence, but with the burden on the defendant, in, my view would be meaningless. 
[37]
Accordingly I deal with the issues in this case in, the context of the Informants obligation to prove beyond reasonable doubt that each defendant failed to take all reasonably practicable steps. If that is proved then consideration of whether the Defendant has proved a total absence of fault would not alter the position. 
Causation 
[38]
While this case involved an accident in the context of ss 6 and 18 and the offence provision of s 50, the Informant does not have to prove that any breach caused the injury to Mr Brown. Further in terms of assessing the likelihood of injury it is not this particular severe injury that is to be considered, rather it is the likelihood of harm resulting and harm includes sprains or broken bones. Clearly however, the lower the level of harm reasonably predicted the less that will be demanded by way of prevention. 
Has as the Prosecution Proved Mr Hassett Failed to Take all Reasonably Practicable Steps to Avoid Harm Being Caused to Mr Brown as a Result of a Fall from Height? - s 2a Factors 
Section 2(a) Factor's 
[39]
I shall deal with Mr Hassett's case first before turning to the charge against Apex and will deal with both Defendants in the context of the factors as set out in s 2A. 
S 2A(a) - Nature and severity of harm that may be suffered if Mr Brown were to fall from the deck 
[40]
Before considering the type of harm that may eventuate, it is necessary to make factual findings as to where he could potentially fall from and the height of that fall. 
Fall through joists on the deck 
[41]
There was debate about whether Mr Brown could slip between the joists on the deck which were 350 millimetres wide. If he was to fall through those gaps in the joists then Mr Proffitt, the OSH Inspector, estimated, though he made no attempt to measure, the distance from the deck to the ground as being 3 metres. The ground underneath the deck was lower than immediately beside the deck as a bank had been cut out underneath it. 
[42]
The Informant submits that Mr Brown could have fallen through that gap. It points to Mr Proffitt's opinion in that regard and also points to support from a Defence expert, Mr Buse, a Health and Safety Consultant, who said it was possible to slip through that gap but he added that one would virtually have to dive straight down through it. Given the gap was 350 millimetres I would have thought that the person would also have to be not only accurate in the dive but also fairly slim. 
[43]
I also take into account the OSH Construction Bulletin No. 10 in 1999, though recently OSH has withdrawn its support for this publication. That bulletin tells the industry that if a worker is working at height on a roof, then a fall protection method should be employed. OSH states that the hazards that present a risk of a fall is any roof penetration larger than 500 millimetres by 500 millimetres. OSH also states that it is sufficient for protection if there is roof framing of at least 500 millimetres beneath the roof. 
[44]
I consider given: the size of the gap; the fact we are dealing with adults, not children; and the OSH assessment of the risk in the Bulletin; that the possibility of a full grown man falling down a gap of 35 centimetres is so remote that it can be discounted in the risk assessment. Accordingly, I do not accept the Informant's submission that it would have been reasonably possible for Mr Brown to fall 3 metres, nor that it would be possible to fall onto items underneath the deck such as a power box. 
Potential height of fall and place of landing 
[45]
There has also been much debate about the actual height of the fall between the deck and the place where Mr Brown landed. The accuracy of that measurement by Mr Proffitt of 2.2 metres came under criticism. However, Mr Hassett was vague about how that measurement occurred. I accept Mr Proffitt's evidence that the height of the fall was 2.2 metres or thereabouts and the height from the top of the ladder was also 2.2 metres. As to the potential place of landing most of the area surrounding the deck was sand. There was some gravel closest to the outside perimeter of the deck and it was also possible, as Mr Buse for the Defence accepted, for a person to have hit the retaining wall. 
Injuries 
[46]
Clearly injuries that may be suffered, as opposed to what people would regard as likely, includes tetraplegia. That is what happened. There can be no dispute with the fact there is a potential for an injury that grave. To a large extent this issue and indeed others within this section are, in my view, issues that could benefit from assessment from medical practitioners. I have heard no evidence of that type and am left largely with an assessment based on ordinary human experience and common sense. Mr Proffitt attempted to assist by referring to other cases where there had been significant injuries involving falls of less than 3 metres. However, I did not find that of great assistance given that the individual circumstances would need to be considered before an accurate comparison could be made. Without that, I consider such evidence could mislead. 
[47]
I take the actual injury as a high water mark but I am not prepared to infer, or indeed speculate, that death could result, although of course one is aware of “freakish” accidents when such can result. Clearly, by applying a good measure of common sense, injuries such as broken bones, significant strains and severe bruising could occur as a result of a fall from that height, even on this forgiving surface. 
Section 2A(b) - What is the current state of knowledge in the industry about the likelihood of harm as discussed, if a worker is not provided with fall protection? 
[48]
There are two aspects to this question - 
(1)
What is the likelihood of a worker falling at all? 
(2)
If he/she does fall what is the likelihood of injury resulting? 
[49]
So far, as the first issue is concerned it requires an assessment of all the factors in this particular case: factors such as what tasks were being performed; what was the nature of the working platform; what was the training provided to the worker. 
[50]
So far as the second issue is concerned, again it could also involve a medical assessment, at least insofar as that body of medical knowledge is known, to the industry. Mr Proffitt attempted to assist the Court with a comparison with other cases. As indicated, I deal with that evidence with caution. 
[51]
The Defence has also led a significant body of evidence about: 
Publications concerning requirements for fall protection. 
The actual practice in the residential industry in relation to fall protection where the risk is both greater than and less than 3 metres. 
[52]
That aspect of the evidence does not assist me with issue (1) as the likelihood of a worker falling is the same regardless of the height. The later aspect of the Defence evidence goes to the second issue and I will deal with it under that heading. 
(1)
The likelihood of a worker falling at all? 
[53]
The Defence says it was not great. The steps were wide, stable, and attached to the top of the deck. The platform created was not just one plank but three planks secured to the joists and measuring in total 600 millimetres. The task that Mr Brown had been involved in at the time was the simple and brief task of affixing wallpaper to this face. The only other use for this platform was for access to the inside of the building and given the concentration levels would be greater this was, say the Defence, safe. Taking those matters into account it is, however, clear that this staircase and the decking, whatever the configuration, was to be used frequently. It was the only method of access to the building. In respect of the task at hand on the day, Mr Brown was required to carry tools up and the building paper itself. 
[54]
When one is conducting tasks, even relatively simple tasks such as this which was estimated to take approximately 15 minutes on this phase, it is certainly predictable that a person could step back to a point beyond 600 millimetres. The staircase did not have a handrail on either side at all, so that if someone simply tripped on the step, which is certainly not unheard of, then there is nothing to steady themselves on. Similarly, stepping up onto the deck, if someone was to trip on that last step there was nothing to steady themselves with. 
[55]
Again I am left with a common sense assessment of the likelihood of someone falling and because of that I am not in a position to be scientifically accurate about that assessment. Nevertheless, I consider that there is an obvious and reasonable possibility that a worker might trip and lose balance while going up the stairs whether carrying things or not. Insofar as the deck itself is concerned the risk must be less where there is a flat unobstructed surface of this width with adjoining joists. I consider when the platform is being used solely for access that risk is of a low level. However, when someone is concentrating on work tasks that risk is increased to the point that again there is a reasonably foreseeable possibility that someone could fall. 
Impact of employee's conduct 
[56]
To be added to the equation is the fact that Mr Hassett said he trained Mr Brown to put all tools and materials on the ground level of wherever he was working so that items could not fall from height and become a hazard. Based on that training he said that would translate, in this situation, to the safest practice being to put the paper through the building frame and down onto the internal floor of the house, so that it was completely out of the way. 
[57]
Employers will not be held responsible for employees who depart so gravely from the system of work, that their departure could not be reasonably anticipated by them. When assessing how to guard against risk, the employer is not expected to guard against blatant defiance coupled with idiocy. A reasonable employer, however, must anticipate that an employee may depart from the safe system of work set up. I do not consider that Mr Brown's practice in this regard is so dangerous in itself and such a significant departure from the designed system that it would, in itself, protect either Defendant from blame. He did do the safe thing and remove the paper from the working platform that he was on at the time and while there may have been an even better approach it was not a wholly unpredictable and dangerous step to take. I do not regard Mr Brown's circumstances as the author of his own misfortune, although there may have been an alternative and safer approach to take. I have taken into account however the training provided to Mr Brown by Mr Hassett. 

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