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OSH Tracker

Department of Labour v Quality Demolition and Contracting Ltd (DC, 16/03/07)

OSH Tracker

Defendant:
Quality Demolition & Contracting
QUALITY DEMOLITION & CONTRACTING LTD was fined $9000 under s6 after a digger driver employed by the company was exposed to asbestos on a central Wellington demolition site. The company knew there was likely to be asbestos in the building but instructed the digger driver to begin demolition without telling him of its presence or taking any steps to protect him from exposure. The driver stopped work when he uncovered suspicious material inside a wall. Tests later proved that the substance was asbestos (Wellington DC, April 3). 
Industry:
Construction
Sub-Industry:
Construction Trade Services
Risk:
Hazardous substance exposure
Harm:
None
Penalty Amount:
$9000.00
Reparation Amount:
$0.00
Appeared in Safeguard issue 106

Judgment Text

ORAL JUDGMENT OF JUDGE M R RADFORD 
Judge M R Radford
[1]
The defendant faces two charges brought pursuant to the provisions of the Health and Safety and Employment Act 1992. Both charges arise out of the demolition of a building at 29 Vivian Street in Wellington. 
[2]
The building was at the material time in 2005 apparently owned by a company called Panther Holdings Ltd. That company wished to have it removed and a new development undertaken. An architect was engaged, Arkhouse Architects Ltd, to oversee the development. After tenders were called, a tender was accepted for the demolition of the building and construction of new work from United Civil Ltd and that company in turn contracted with the defendant Quality Demolition and Contracting Ltd for the demolition of the building. 
[3]
In circumstances that I will discuss shortly the defendant substantially demolished the building but in the course of that demolition discovered quantities of asbestos at which point the defendant ceased further work and the regulatory authorities were notified. 
[4]
The informant alleges that the defendant failed in its duties under the Health and Safety and Employment Act 1992, by failing to take all practicable steps to ensure the safety of its employee, Mr Barnett, while he was at work and they did this by failing to take all practical steps to ensure he was not exposed to the hazard of asbestos. There is some repetition in the wording of the information but no objection has been taken to that. 
[5]
The other respect in which the informant alleges the defendant was in breach is that it alleges the defendant, being a person who controlled the place of work, namely 29 Vivian Street in Wellington, failed to take all practicable steps to ensure that a hazard that arose in that place, namely asbestos, did not harm people in the vicinity of the place of work. For reasons, which I will describe later, I am not prepared to find that charge proved. 
[6]
There are a number of matters that have to be proved in a prosecution of this nature for the informant to succeed but it has been conceded, and quite properly by the defendant, that with the exception of one, all matters are accepted as being established. The matter which is at issue is whether or not all practicable steps were taken to ensure safety in terms of the legislation. Therefore, I will not discuss in this decision the issues of workplace, employer, employee, proof of the asbestos and that that was a hazard, because that is not required. I do accept that it is not for the defendant to prove that all practicable steps were taken but it is for the prosecution to prove that the defendant did not. Of course, in deciding that issue I have regard to the whole of the evidence including the evidence called on behalf of the defendant. 
[7]
The defendant is a company operating extensively in the region as a contractor and according to the evidence is involved in something in the order of 100 to 200 demolitions per year. I am told that of those, one out of three or one out of four involve situations where asbestos is present. That is not surprising because in the main the demolitions would involve older buildings where asbestos is likely to be found rather than newer ones where it is not. It follows however that this company, the defendant, is one whose employees have some considerable experience in the area of demolition. 
[8]
The defendant's involvement, it seemed to me, began when a Mr Miller, who was then contract manager of the defendant, was asked by a Mr Antunovic of United Civil Ltd to visit the site with the view to submitting a price for the demolition. Exactly how that invitation was issued is not germane. In any event, Mr Miller did visit the site, took up some measurements, and in consequence issued a quotation/tender, as it is described in Exhibit 1, to Mr Antunovic. That tender had a tag on it. The tender tag says this, “Provisional sum: testing and removal of asbestos contaminated material (client pays actual costs plus contractor's margin of 15%).” And then the detail of that tag is, I will not quote it in full for the purposes of this decision but it can be inserted and it is under the Number 2 of Page 2 of Exhibit 1, “I will however point out that the tag notes that there is the possibility of asbestos contaminated materials on this site (war insulation)” 
[9]
I am told that in general terms this tag was a usual tag put on quotes in circumstances such as this. The defendant says, through the witnesses, that it was not put on because the defendant had concrete concerns about asbestos, but simply to guard against the possibility that additional costs would be incurred should asbestos removal procedures be necessary. It was put by the defendant that this was a sensible position to take, given the age of the building, and the knowledge that asbestos was used at times when the building was erected and subsequently renovated. 
[10]
After the quotation that I have referred to is given, and it is dated 17 August, a further visit to the building was made by Mr Miller. I understand that he saw a hole in a wall, not in the lower walls but somewhere above them, perhaps a mezzanine floor, and he observed some material which gave him some pause for thought. He later described this material to Mr Shane Gray who was the company manager. Mr Gray has something in the order of 15 years experience in the industry. Mr Gray considered he was able to form a view that the material was not asbestos but was some form of insulation material, he thought insulfluff was the name that he gave to it, but in any event, not asbestos. 
[11]
On 23 August, that is a week after the date of the first quote, Exhibit 1, Mr Miller from defendant wrote to Mr Antunovic another letter which has been produced as Exhibit 3. Plainly by that time the parties had agreed that the defendant was to perform the demolition. Mr Miller said in his letter of 23 August that the company could not start demolition until a proper consent was available. It advised Mr Antunovic that once the approved consent was available could he contact Mr Gray, in that letter described as operations manager, to confirm start dates and importantly said in Point 3 of the letter, “We will have to get the fibrous wall insulation tested for asbestos contamination info.” 
[12]
Mr Miller deposed that this note related to the hole and its contents. What I find significant, however, is that the defendant's mind was turned to the possibility of asbestos being in the building. Significantly, no testing was in fact undertaken. I accept from the evidence of Mr Booth, and I think it was accepted by all concerned, that testing for asbestos is both cheap and speedy. 
[13]
On the day when the demolition of the structure was to take place, the defendant arranged for a digger to be taken to the site. This and other vehicles were parked on a carpark to the rear, I understand, of the building but other people owned the carpark. Obviously there was some considerable difference of opinion over the use of the carpark and the result was a disgraceful episode when the owners of the carpark apparently attacked Mr Gray. From Mr Gray then wishing to leave, the owners of the carpark attempted to prevent this. It would not be an easy matter to remove a digger so Mr Gray took the view that since the building had to come down anyway, the digger might as well be driven into the lean to at the rear of the building to get it off the carparking area. 
[14]
Almost immediately, Mr Gray formed the view that he did not want have anything more to do with this business. He just wanted to get his gear off. I understand that he formed that view because of the assault that he had been subjected to but there are other matters as well and he instanced lack of payment from Mr Antunovic's company. In any event, he wanted to get quit of the job and the operator, Mr Clayton Barnett, said that he then drove to the front of the building removing some material as the vehicle went, but formed the view that he could not really just leave the building in a partly demolished state so he decided to pull down the side walls and in the course of this pulling down, the asbestos was revealed. 
[15]
Mr Gray said that it was somewhat unfortunate that the matter proceeded in that way. That is that the pulling down of the walls was a rushed matter. He said that if the demolition had been able to proceed in a more measured fashion, that is piece by piece, not only would the defendant have been able to see whether or not there were further recoverable materials in the building, but when the asbestos was first discovered the job could have been stopped and the proper procedures put in place at that stage. 
[16]
The question before the Court is then has the prosecution proved that the defendant took all practicable steps as required by the legislation? The proper approach, the informant has argued, is contained in a number of authorities which have been helpfully supplied. I want to refer briefly to some of the points made. In the case of Central Cranes Ltd v Department of Labour [1997] ERNZ 520, the Court of Appeal said: 
“It is clear that the Act adopts a preventive approach to maintaining and promoting health and safety in the workplace. Its principal objective 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. ”
[17]
And further: 
“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 practices but leaves the details of acceptable practices to be worked out and implemented by regulations and codes of practice within the various industries. ”
[18]
And in the authority of the Department of Labour v De Spa & Co Ltd [1994] 1 ERNZ 339, the High Court said: 
“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. ”
[19]
As to what is practicable, I refer to theDepartment of Labour v Solid Timber Building Systems New Zealand Ltd, a decision of Baragwanath J in the High Court in Rotorua, AP 464-44-2003, His Honour had this to say: 
“I construe the definition of all practicable steps as essentially one of objective fact. Viewing the matter at a stage shortly before the injury through the eye of an employer conducting the respondent's operation and with the knowledge that such employer could reasonably have been expected to possess as to the nature of the prospective harm from the machine. ”
[20]
Of course that case was discussing a slightly different point but the principle is important. His Honour at Paragraph 46 went on to say: 
“But the test of all practicable steps is not what the particular employer knew (as the Judge seems to have considered) with or without recourse to experts, but the current state of knowledge. Whether it and its experts were aware of that or not. ”
[21]
And I draw attention to that passage because it has particular application in this case. The question of what all practicable steps are is clearly set out in the legislation and I will not quote the full text at this point but I will insert it into the typed decision. 
[22]
The circumstances that have to be had regard to here are in my view the following: the building was an old one erected or refurbished in an area when asbestos was commonly used for a number of purposes. The defendant is an experienced demolition operator and had previously demolished old halls and theatres akin to the property presently under consideration. The defendant knew from his evidence that in those other structures asbestos had been found although he said it was in specified areas and he detailed those, such as the projection rooms of old theatres and around pipes, roofs, fence and the like. 
[23]
I bear in mind that the evidence before me involved two other persons who might be said to have had long experience in the industry, or at least one of them did. One called by the prosecution, who was asked to quote on this particular building and who immediately identified asbestos on the walls where in fact it was in this case. And one called from a defendant, another expert who said that he'd not struck the asbestos in this sort of situation before because the asbestos was on a wall not in one of the itemised places that I have already mentioned. Also that he would not have necessarily checked for asbestos in those places. 
[24]
Having regard to those two experts, I prefer the evidence of the other witness called by the prosecution Mr Vince. He had long experience in the industry and from the way in which the case developed it is plain that it is experience in the industry which is one of the most important matters in judging these issues. Even though the expert called by the defence did have the relevant certificates, he had considerably less experience, approximately four years, at that time these events happened. I consider that the more relevant evidence is that of the prosecution witness. 
[25]
The next point relating to the circumstances is of course that the defendants were alert to the possibility of asbestos being in the building as I have already referred to in detail Exhibits 1 and 3. I comment that these notations may be in standard form but they clearly show that the defendant was alert to the possibility of asbestos being present. 
[26]
I refer next, as part of the circumstances, to the Codes of Practice that are published. First there is the approved Code of Practice for demolition and then there are guidelines for the management and removal of asbestos. Both of these publications are from the Department of Labour and I accept the evidence of Mr Burse that they are widely disseminated and available to all of those involved in this industry. 
[27]
The next matter that I consider under the circumstances is the decision made by the defendant to simply plow on with the demolition. It is hard to be critical of him for making that decision in the circumstances. He was faced with an unpalatable situation. He had been assaulted. He had to get the digger, he thought, off the site. However, he did have other considerations in his mind and he had his responsibilities to perform. It would have still been able, in my view, for him to have proceeded with the demolition in a measured fashion as he said he would prefer to do, rather than as he in fact did. 
[28]
For the defence a number of points have been raised. First, that the asbestos was not apparent and the defence draws attention to the fact that the defendant and others who gave evidence had not seen asbestos sprayed or ?? trailed onto the wall and painted over in the fashion that happened in this building. Nonetheless, in relation to that, I refer to the Codes of Practice which have already been mentioned. 
[29]
The defence says that the defendant had never encountered this before in this situation. I am prepared to accept that, of course, but I draw attention to the quotation of Baragwanath J that I have already referred to and the fact that the defendant was alert to the possibility of asbestos being present. 
[30]
The defendants say that other experienced operators would not have discovered the asbestos. I have to say here that one very experienced operator of a similar experience to Mr Gray, did in fact ascertain the presence of asbestos on inspection. It may be that the ability of Mr Gray to inspect due to there being poor lighting on the scene, affected his ability to detect the presence of this asbestos or at least affected his ability to become suspicious. That, however, is a risk that a contractor must take. To simply say that there was not good enough lighting does not absolve the contractor from making a proper inspection where that inspection is necessary as it plainly was in this case. 
[31]
Next the defendant says that the way the industry is structured means that the defendant was at a disadvantage. I should say that all of the submissions for the defence really came from the cross-examination of the witnesses and the leading of evidence by Mr Sainsbury so they are as I deduce. In other words, the defendant says that there is a learning curve and the defendant is now alert to the possibility of asbestos being on a building in the way that it was on this one. As to that, of course, it is my view that the legislation does not permit someone to come and say I am inexperienced and therefore the obligations on me do not have to be met with the same rigour. That cannot be a proper way to look at the matter. 
[32]
The defendant then said that there was no certification process available, no training process, that there was essentially only a learning on the job arrangement, except for the certification for specialists, which of course is not required for persons demolishing a building. I accept that it is not required. Anybody can demolish but I also accept that when it comes to dealing with friable asbestos then there are certification procedures. 
[33]
In all of the circumstances, then facing the defendant, it is my view that they did fail to take all practicable steps in the circumstances. This is in relation to the information ending 0785. It seems to me that the testing process was readily available and cheap to put in place. The speed with which testing can be done I accept was almost immediate but sometimes could take between 24 and 48 hours. 
[34]
Given the accepted hazard and the knowledge of the industry standards and the fact that asbestos was a possibility in this building, it seems to me the defendant failed to take all proper steps in the circumstances. On that information that I have described it will be convicted. 
[35]
In relation to the other information, however, a slightly different situation arises. Mr Sainsbury very properly accepted the situation regarding the danger of asbestos and the like. The result is that I do not have any evidence before me which relates to possibility of harm being caused to persons off the work site. I am prepared to accept, on the basis of the evidence as a whole, that there was harm to persons on the work site but there is no evidence that relate to people in the vicinity of the place of work. Accordingly, I am not satisfied that one of the essential elements in that charge have been proved and that will be dismissed. 

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