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OSH Tracker

Department of Labour v Fletcher Concrete and Infrastructure Ltd t/a Stresscrete (DC, 26/03/07)

OSH Tracker

Defendant:
Fletcher Concrete and Infrastructure
A company which instructed its employees to continue using a faulty gantry crane even though it knew there was a threat to worker safety has received the largest fine ever awarded under the HSE Act following the death of man when a load fell from the crane. 
Imposing a $225,000 fine on Fletcher Concrete and Infrastructure Ltd, trading as Stresscrete, Judge John Cadenhead admonished the company for placing productivity ahead of worker safety. He convicted it on two charges laid under s6 and s49 – a rare combination which requires the prosecution to prove that the defendant knew its actions or inactions were was reasonably likely to cause serious harm.  Charges under s49 carry a maximum penalty of $500,000 – double that available in other HSE Act cases. 
Stresscrete was also ordered to pay $20,000 in reparations to the crane operator who was injured in the accident ( Papakura DC, June 29). Voluntary payments of some $250,000 had been made to the family of the dead worker following a restorative justice conference. 
In a nine-day trial last November the court heard how, in early March 2005, the rope guide on an A-framed gantry crane at Stresscrete’s Papakura fabrication plant had been rendered inoperable after the wire rope frayed and formed a ‘bird’s nest’. 
The crane serviceman called in to replace the damaged rope informed the plant’s operations manager that the rope guide was “stuffed” and without it the crane had no limits. As well as stopping cable spilling from the drum, the rope guide activated a limit switch to prevent the bottom block colliding with the top one, an event which can damage the crane and cause possible loss of load. 
The serviceman regarded the limit switch failure as a serious safety issue and, when he learned that a replacement was not immediately available, considered not replacing the frayed rope to prevent the crane being used. He decided to go ahead with the work, however, because the company indicated it would continue to use the crane despite the damaged rope. 
The crane operator told his supervisor that without the limit switch he had difficulty controlling the crane, but was instructed to continue using it. He told the court that he used it every day at its usual capacity, as though there was nothing wrong. 
The fatality occurred when concrete panels were being shifted from the workshop to the yard. As a worker, Esera Visesio, was guiding a panel, the wire rope snapped, dropping the load. The 1700 kg lifting beam struck Visesio on the head, killing him instantly, and the panel pinned the crane operator against a production table, causing soft tissue injuries. 
The court heard conflicting evidence about the supervisor’s knowledge of cranes, and whether he had been told that the damaged crane had no limit switch. Judge Cadenhead, however, accepted the evidence from the crane operator and representatives of the crane service company, who claimed to have repeatedly told the supervisor of their concerns and believed he had enough professional expertise to understand the associated risks. The supervisor’s actions and statements showed a mindset that favoured production over safety, the judge said. 
In passing sentence, he noted that Stresscrete had “hotly defended” the charges. While accepting that remorse and apologies had been expressed during the restorative justice process, he paid tribute to the prosecution witnesses – particularly the crane operator and serviceman, who, he said, had shown courage when giving their evidence, in the face of extensive cross examination. 
Industry:
Construction
Sub-Industry:
Construction Trade Services
Risk:
Struck by falling object
Harm:
Death
Penalty Amount:
$245000.00
Reparation Amount:
$20000.00
Appeared in Safeguard issue 105

Judgment Text

RESERVED JUDGMENT OF JUDGE J CADENHEAD 
Judge J Cadenhead
The Hearing 
[1]
I heard this case at Papakura on the following days: 6,7,8,9,10,13,15,16 and 17 November 2006. I must acknowledge that I have received considerable help from both counsel. The delay in giving this decision is because I have only just received the final submissions of counsel for the defence. I received those submissions on 22 February 2007. The reason for this was that the Christmas break intervened and counsel for the Defendant needed further time to consider matters that had been raised in a reply by the Informant. I granted him sufficient time to do this. 
[2]
The Informant called the 23 witnesses, who either gave evidence or their brief of evidence was read by consent. Helpfully counsel agreed to volumes of exhibits being produced by consent and the reading of briefs, subject to evidential objections. 
[3]
I do not intend to traverse the evidence of all of these witnesses and the issues raised by counsel on both sides. Rather, I have concentrated on what I perceive were the essential issues of the case and have endeavoured to précis the relevant evidence and give brief credibility findings as they pertain to those issues. 
[4]
I preface my decision by indicating that I have endeavoured to give short reasons only for my conclusion, in accordance with the principles of R v Connell [1985] 2 NZLR 233, as in that case at pp 237 Cooke J said: 
“Further, what the Judge sitting alone delivers is intended to be a verdict. It need not be supported by elaborate reasons. To require the Judge to set out in writing all the matters that he had taken into account and deal with every factual argument would be to prolong and complicate the criminal process to a degree which Parliament cannot have contemplated. There are cases where a point or argument is of such importance that a Judge's failure to deal expressly with it in his reasons will lead this Court to hold that there has been a miscarriage of justice. A demonstrably faulty chain of reasoning may be put in the same category. But it is important that the decision to convict or acquit should be made without much delay. Careful consideration is an elementary need, but not long exposition. ”
[5]
I remind myself that the burden of proof is upon the prosecution, and that the standard of proof is proof beyond reasonable doubt. I also remind myself that knowledge in terms of a criminal trial is the actual knowledge of the accused and is not to be equated to some form of constructive or imputed knowledge based upon what is reasonable. 
Introduction 
[6]
The Defendant is charged pursuant to section 6 and section 49(2) of the Health and Safety in Employment Act 1992 (“the Act”) (CRNs ending 763 & 764), in that being an employer it had, knowing the failure to take any action was reasonably likely to cause serious harm to another person, failed to take all practicable steps to ensure the safety of its employees while at work. 
[7]
The Defendant also faces two alternative charges pursuant to section 6 and section 50(1)(a) of the Act (CRNs ending 765 & 766), in that, as an employer it did fail to take all practicable steps to ensure the safety of its employees while at work. The Defendant has pleaded guilty to information ending CRN 766. 
[8]
For an offence under section 49 to be successful, the Informant must show knowledge (or intent) of the Defendant. In contrast, section 50 does not require the prosecution to show intent (see section 53 of the Act). 
Background 
[9]
Fletcher Concrete and Infrastructure Limited own and operate a business that is trading as Stresscrete. The business premises are situated at 78 Hunua Road, Papakura, Auckland. The place of work occupies a large site consisting of an administration office, car parking, and concrete panel shop and yard areas. The yard areas are used for the storage of the finished products and raw materials used in the manufacturing process. This factory produces a variety of pre-cast and pre-stressed concrete panels and products for the construction industry. 
[10]
The Papakura site is the company's largest concrete manufacturing site. The company employs approximately 80 to 90 employees at their Papakura site. Mr Sa'u and Mr Visesio were both employees of the Defendant at the Papakura site. 
[11]
The company owned a Goliath “A” framed rail mounted gantry crane involved in the accident. It is believed that the crane was manufactured in 1978. It was known as Crane 12. This crane operates on two rails that are fastened to the ground. Crane 12 was used to transfer concrete panels and products from the panel shop to the yard. 
[12]
On 10 March 2005, Crane 12 was being used to move a pre-cast concrete panel from the panel shop to the outside despatch area. Crane 12 was being operated by the Defendant's employee, Finauga Sa'u (also known as Vinnie Sa'u). Mr Sa'u was being assisted by another employee of the Defendant, Esera Visesio. 
[13]
As the concrete panel was being lifted, the crane rope broke. Mr Visesio received fatal injuries when the crane's lifting beam struck his head. Mr Sa'u received soft tissue injuries resulting in severe bruising to his shoulders and back when he was crushed between the panel and a work bench. 
The Crane 
[14]
The crane is fitted with an electric wire hoist rope drum. The hoist is suspended from a trolley under the gantry beam; the drum is driven by an electric motor via a gearbox. As the drum rotates the rope will feed on or off the drum depending on the direction of rotation of the drum. The drum has a number of spiral grooves built into it to help locate and guide the cable. The rope is fed from the drum to a hook and through a pulley system. The system is fitted with a fail-safe disc brake that is applied by springs. The brake is in an activated state unless the raise or lower button is pressed releasing it. An electro magnetic system releases the springs on depressing the button, thus allowing the motors to rotate and engage the cable. 
[15]
A rope guide is fitted over the drum and operates like a nut fastening. This moves along the spiral grooving on the drum. The purpose of the guide is to prevent the cable from disconnecting from the drum grooving that could arise for a number of reasons. The cable guide also performs the function of operating the top and bottom limit switch when those areas are activated by the mechanism. 
[16]
The crane operates on two rails that are fastened to the ground and are positioned in the panel shed, and extend out into the yard. 
[17]
The crane has a safe working limit (SWL) of 12,500 kilograms, and is rigged by using a two block system. The top block having two sheaves and the bottom block three, the bottom block is connected to the lifting hook. This type of rigging allows the crane 6 falls or rows of wire rope giving the crane a mechanical reduction or advantage to the ratio of 6 to 1. 
[18]
The crane is operated by means of a pendant control unit that is attached by way of an electrical cable or fly lead to the main overhead unit. The pendant is suspended from the gantry and set at a comfortable height for the operator who can command the crane whilst usually in a standing or walking position. The pendant allows the operator to control the functions of the crane from any position and also allows the rise and fall of the load, cross travel and longitudinal travel of the crane and its load. Positioned at the bottom of the pendant is an emergency stop button. 
[19]
Attached to the lifting hook of Crane 12 is the lifting tackle, which consists of a lifting beam. This beam consists of adjustable hangers that can be positioned over the load to help ensure an evenly distributed load and square lift. The lifting beam is 9.100 metres in length and its total weight including the chains and lifting hook is 1680 kilograms. The lifting beam has a safe working limit of 14,000 kilograms and each of the chains and shackles has a safe working limit of 10,000 kilograms. 
[20]
At the end of each chain is a shortening clutch; this device enables the chain length to be adjusted, to suit each lift. On the end of the chains is a shackle that has a swift lifting clutch connected to it. This system enables the panels to be lifted up using the lifting eyelets or eyes (anchoring heads) that are pre-cast and set into the concrete panel. Each of the lifting eyes has a safe working limit of 2.5 tonnes (2,500 kilograms). 
[21]
The swift lifting clutch system operates by admitting the anchor head into the slot of the lifting clutch; and rotating the tab of the lifting clutch until it rests on the concrete surface. Once the tab has been rotated the anchor head is held in the slot and a safe lift can be undertaken. 
[22]
The panel being moved at the time of the accident had 4 lifting eyes built into it as part of the design specifications. The recorded weight of the panel was 5790 kilograms. 
[23]
When the rope guide strikes the switch block on the bar at the end of the cable drum it activates the limit switch, preventing the cable from further movement. The function of the limit switch is to control the cable and ensure that the bottom block is not raised to a point where it collides with the top block, an incident known as “double blocking”. Limit switches can also be referred to as micro switches, upper limit, final limit, safety limit, safety device, anti two block cut out and limit stop. 
[24]
Below the cable drum is what is known as the top block. This consists of two sheaves (wheels) through which the cable runs. The wire rope runs from the top block to the bottom block, the latter consisting of three sheaves around which the cable runs. The sheaves have covers which protect the wheel but which allow the cable to run on and off the wheel. 
The Accident on 10 March 2005 
[25]
On the day of the accident the two employees Sa'u and Visesio were working together to move a newly produced concrete panel out of the panel shop and into the yard. Mr Sa'u was operating Crane 12 using the pendant control while Mr Visesio had engaged the swift lift clutch system and was waiting to guide the panel. 
[26]
The panel was positioned in a near vertical position on an “A” frame stand inside the workshop. The panel was lifted and cleared of the “A” frame. Mr Visesio was preparing to guide the panel out of the workshop while Mr Sa'u was operating the control pendant. 
[27]
As the crane lifted the panel, the wire rope snapped, causing the load to fall. Mr Visesio was struck on the head by the lifting beam, killing him instantly, while Mr Sa'u sustained soft tissue injuries, when he was trapped between the fallen load and a production table. 
[28]
The witness Sa'u in his brief of evidence said that his role as a concrete worker at Stresscrete involved repairing concrete, remedial work, moving things from the factory to the yard and loading trucks. He would also help the others that worked there to set up columns, panels and beams. He was also involved in teaching people how to do various tasks at Hunua Road. 
[29]
At Hunua Road, his bosses were Steve Bilski and Stefan Young. 
[30]
At Hunua Road, there were four cranes; there were two cranes for the yard and two cranes for the factory. Crane 12 was an overhead gantry crane. It was a yard crane. The other two factory cranes could not be moved. Crane 12 was operated by means of a pendant style hanging control box that was suspended from the top of the gantry crane and controlled by the operator who would walk along with the gantry as it moved whatever was being carried. 
[31]
Earlier in time the cranes were controlled by a remote control, however, Stresscrete had got rid of these controls seven months prior to the incident. The company told the workers that the remote controls were too expensive, due to the cost associated with replacing the batteries all the time. However, Mr Young said that the remote controls had been removed because the workers were misusing them. The pendant controls were for raising and lowering the load, moving the load sideways and for moving the crane forward or back. The control also had an emergency stop button. 
[32]
On 10 March 2005, Mr Sa'u was working with Crane 12. He was working with Esera Visesio and Tupou Tupou. They were lifting concrete panels with Crane 12 from the work shop to the yard. These panels varied in weight. The panels were connected to a lifting beam and the lifting beam was then hooked on to the crane. 
[33]
To move a panel, he would raise it up using the crane, and he would then make sure the swift lifts were lined up by chain to the swift lifter. These chains had to be at the right angle to make sure that the panel would be lifted properly. There were two sets of chains that are connected to the lifting beam. If everything was fine, he would then lift the panel to move it out of the factory. Generally, he would not lift the panel off the ground too high, at least 200 mm, but generally at least 300 mm. 
[34]
On the day of the incident, Esera Visesio was helping him to shift the panels from the work shop to the yard. To do this, he would control the crane and Esera would help him to watch the front of the panel to make sure it was clear. Esera was holding the panel and standing in front of it. This is so the panel would not be damaged as it left the workshop. Esera would also help him to chain the panels. He always required two people to move any item out of the factory. There was not much room for error and at the time of the incident, they had already lifted nine panels and it was their last panel before “smoko”. This was just before nine in the morning. 
[35]
At the time of the incident, he had initially lifted the panel about 400 mm off the ground. Once it was lifted, he started to move the panel, first he moved it by cross travel so he could get it in the right place and then he moved it by long travel to make it move out of the factory. As it was moving out of the factory, he noticed it was up travelling at the same time. Next thing he heard was a bang, and he was looking up at where the crane should be. He saw a little piece of the cable but the crane was not there as it was on top of them. 
[36]
He was right by the panel, approximately one metre away from it before the incident occurred. Esera was standing off to the side of the panel, so he could help to guide it out of the factory. 
[37]
Mr Sa'u believed the accident happened with this crane because there is an important part which is known as the carrier. This is the part that guides the rope across the drum. The carrier also makes the crane automatically stop if it travels too high or too far down. He was aware of the problem at the time of the incident. 
The substantial allegations of the Informant and the issues 
[38]
The Informant submits that at the relevant times, the serviceman of Bakers, Mr Taylor, had advised the Operations Manager of the Defendant Company, Mr Stefan Young and other employees of the Defendant Company that the rope guide had been removed and needed to be replaced. A rope guide was to be obtained and provided in due course. 
[39]
Without a rope guide, this particular crane had no limits. It is alleged that is inherently and fundamentally unsafe to operate a crane without limits. It is the Informant's position that the Defendant Company knew the implications of operating a crane without limits and that it had been advised by Messrs Sa'u, Longden and Taylor that the rope guide had been removed and the crane was operating without limits. A crane without limits would mean that the motor that winds the rope on the top block will continue to wind with no place for it to go on the drum. If the crane continues to wind, it can result in a double-block and this can cause significant damage to not only the crane but persons in the vicinity as well. 
[40]
It is the Informant's position that the Defendant was aware of this and was also aware that when a crane is operated like this, something will have to break in the crane, which amongst other things, could be the rope or cable on the crane. It is also the Informant's position that the Defendant knew that if the rope broke, the load could drop and in a restricted working area, the load could drop on to persons working below it. 
[41]
The allegation is that after the removal of the rope guide, the crane continued to be operated without limits. It is the Informant's position that this was at the instruction of management of the Defendant Company, in particular the Operations Manager, Mr Stefan Young. 
[42]
The Informant alleges that operating the crane without limits means that the only safety precaution in place is operator judgment. This is difficult for the operator who is on the ground, and does not have a good view of the blocks and other parts of the crane, which are above him. 
[43]
The issues that must be determined are: 
(1)
Did Mr Stefan Young know that the crane was being operated without a limit switch? 
(2)
Did the knowledge of Mr Stefan Young fulfil the statutory criteria concerning knowledge prescribed by section 49 of the Act? 
(3)
If Mr Young had such knowledge, then it can that knowledge be attributed to the Defendant Company? 
(4)
If Mr Young did not have the prescribed knowledge, then did the company take all practicable reasonable steps to prevent the accident? 
Why Did the Crane Fail? 
[44]
Independent analysis of the wire rope (cable) concluded that the wire rope itself was not defective. 
[45]
Two independent engineers, Messrs Sykes and Firth, were commissioned to assess how and why the rope failed. These engineers arrived at different conclusions on why the rope failed and they gave evidence to the Court as to their theories. However, while the engineers differed on the cause of the wire rope breakage, they both agreed that the competent operation of the limit switch would have prevented the double layering of the rope on the drum cable (if this occurred) and excessive pressure on the side of the upper sheave (if this occurred) ensuring that the rope did not fail. 
[46]
It seems common ground that there is no dispute that Crane 12 should not have been used without limits. Mr Sykes gave evidence in his role as a crane inspector making it clear that if a crane had no limits he would instruct the controller of the crane to shut the crane down. (Transcript Sykes para 294 - 296) He said that a crane that was operated without a rope guide and limit switch was in breach of the code. He said that in that condition the crane should not be used or put back into service. Mr Sykes said that he agreed with Mr Firth that if the rope guide had been installed the accident could not have happened. The reason for this was that the rope guide was attached to the limit switch. However, it was the operation of the limit switch that was crucial, not necessarily a rope guide. If a rope guide had been attached to the limit switch that would have stopped the over winding problem. 
[47]
Mr Firth said that a commoner denominator between his opinion and that of Mr Sykes was that the bottom block and the top block got too close together (para 136 -145). However, Mr Sykes thought that there was too much rope on the top drum. By this theory the revolutions on the drum cause the rope to be cut. Mr Firth said that his theory was that the rope should have gone down the middle of the sheave and it would not stop right at the edge because it put a lot of damage to the rope. In the view of Mr Firth the substantial cause of the accident was double blocking. However, Mr Sykes did not share that view as he thought that the accident was caused by the fitting of too much rope. However, on either theory both experts agreed that if a proper limit switch had been working the accident would not have happened. 
[48]
Evidence of Mr Sykes. (Exhibit 17 Sykes Report last page.) 
[49]
Evidence of Mr Shaw. (Exhibit 50 Shaw Report page 11 para 1 - 3.) 
Legal Principles 
[50]
The Health and Safety Act 1992 came into force on 1 April 1993 and reformed the law relating to the health and safety of employers and other people at work. In relation to the proper approach to the Act, the Court of Appeal in Central Cranes Ltd v Department of Labour [1997] ERNZ 520 said at page 527: 
“It is clear that the Act adopts a preventative 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 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 guidelines but leaves detail of acceptable practices to be worked out and implemented by regulations and codes of practice within the various industries. ”
[51]
The Act was subject to substantial amendment by the Health and Safety in Employment Amendment Act in 2002. As this incident occurred post May 2003, the law as amended applies. Section 6 of the Act however remains unchanged. 
[52]
In Department of Labour v de Spa and Co Ltd [1994] 1 ERNZ 339, 341 to 342 the High Court stated: 
“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. ”
[53]
At any one time more than one person can have a duty under the Act. Section 2 of the Act states: 
“(2)
For the avoidance of doubt, it is hereby declared that — 
(a)
A person may at the one time be 2 or more of any of the following: a contractor, an employer, a person who controls a place of work, a principal, a self-employed person, and a subcontractor; and this Act may impose duties on or in respect of the person accordingly; and 
(b)
This Act may at the one time impose the same duty on 2 or more persons, whether in the same capacity or different capacities; and 
(c)
A duty imposed by this Act on any person is not diminished or affected by the fact that it is also imposed on 1 or more other persons, whether in the same capacity or in different capacities. ”
[54]
This means that if there is more than one party who has an obligation under the Act then the fact that another party has a responsibility does not in any way diminish or affect the responsibility of another. 
Section 49 
[55]
Section 49(2) of the Health and Safety Act 1992 provides as follows: 
“(2)
Where — 
(a)
a person who, knowing that failure to take any action is reasonably likely to cause serious harm to any person, fails to take the action; and 
(b)
the person is required by this Act to take the action, - the person commits an offence against this Act ”
[56]
Serious harm is defined in the First Schedule of the Act as: 
“Section 2(4) SCHEDULE 1 - SERIOUS HARM 
1.
Any of the following conditions that amounts to or results in permanent loss of bodily function, or temporary severe loss of bodily function: respiratory disease, noise-induced hearing loss, neurological disease, cancer, dermatological disease, communicable disease, musculoskeletal disease, illness caused by exposure to infected material, decompression sickness, poisoning, vision impairment, chemical or hot-metal burn of eye, penetrating wound of eye, bone fracture, laceration, crushing. 
2.
Amputation of body part. 
3.
Burns requiring referral to a specialist … medical practitioner or specialist outpatient clinic. 
4.
Loss of consciousness from lack of oxygen. 
5.
Loss of consciousness, or acute illness requiring treatment by a … medical practitioner, from absorption, inhalation, or ingestion, of any substance. 
6.
Any harm that causes the person harmed to be hospitalised for a period of 48 hours or more commencing within 7 days of the harm's occurrence. ”
[57]
(a)
This offence created by section 49 of the Act requires proof of mens rea: knowing that failure to take any action is reasonably likely to cause serious harm to any person. 
(b)
Further there is a requirement that the person fails to take the action; and 
(c)
The person is required by this Act to take the action. 
[58]
The requisite statutory mens rea is knowledge that failure to take any action was reasonably likely to cause serious harm to any person. The knowledge is that knowing that the consequences of failing to take any action were reasonably likely to cause serious harm. It is not necessary to predicate the actual harm caused, it is knowledge that the failure to take action was reasonably likely to cause serious harm within the meaning of “serious harm” as defined by the statute. 
[59]
The degree of probability that the word “likely” contemplates has been considered by the Court of Appeal in Port Nelson Ltd v Commerce Commission [1996] 3 NZLR 554 at 562-563 where the Court stated: 
“Bearing in mind the purpose of the provision the appropriate level is that above mere possibility but not so high as more likely than not and is best expressed as a real and substantial risk that the stated consequences will happen. ”
[60]
In my view, what has to be shown is actual knowledge of a real and substantial risk that the consequences of failing to act as prescribed by the statute would result in serious harm to a person. I accept the submissions of the Defendant that something less than actual knowledge of the Defendant will not suffice. It is not open to construe the section as “knowing or ought to know”
The Requirement to Take Action 
[61]
Section 6 of the Act provides the following duty to take action: 
“Employers to ensure safety of employees 
Every employer shall take all practicable steps to ensure the safety of employees while at work; and in particular shall take all practicable steps to— 
(a)
Provide and maintain for employees a safe working environment; and 
(b)
Provide and maintain for employees while they are at work facilities for their safety and health; and 
(c)
Ensure that plant used by any employee at work is so arranged, designed, made, and maintained that it is safe for the employee to use; and 
(d)
Ensure that while at work employees are not exposed to hazards arising out of the arrangement, disposal, manipulation, organisation, processing, storage, transport, working, or use of things 
(i)
In their place of work; or 
(ii)
Near their place of work and under the employer's control; and 
(e)
Develop procedures for dealing with emergencies that may arise while employees are at work. ”
The term “All practicable steps” is defined in section 2A of the Act as: 
“(1)
… 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 the 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; 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 person knows or ought reasonably to know about. ”
[62]
As to what “practicable” means Baragwanath J in Department of Labour v Solid Timber Building Systems Limited (unreported, High Court, Rotorua, 7 November 2003, Baragwanath J) quoted a House of Lords decision, Marshall v Gotham K Ltd [1954] AC 360 Lord Reid said at 373: 

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