Skip to Content, Skip to Navigation
Advertisement

Safeguard OSH Solutions - Thomson Reuters

Safeguard OSH Solutions - Thomson Reuters



OSH Tracker

McGall v Dominion Bookbinders Ltd (DC, 31/03/10)

OSH Tracker

Defendant:
Dominion Bookbinders Ltd
A common gate to shared business premises is a place of work, a judge found in a case where some parties denied responsibility for a child’s death. 
Judge C.S. Blackie said in a reserved decision that he had had to determine whether or not a gate was a place of work after a company denied any culpability in the fatality. 
Dominion Bookbinders Ltd was charged under sections 15 and 25 of the HSE Act for the 2009 incident where the daughter of a cleaner was fatally injured after playing on a faulty gate. The cleaner had been on her way to clean another business located at the same address in Manukau. The businesses informally shared maintenance of the gate. 
Dominion was found guilty of the two charges, including failing to notify the DoL of the accident, after a hearing in which Judge Blackie found the gate was clearly a place of work (Manukau DC, 31 March). 
Judge Blackie said the gate was a fixed location in the wider business premises, which employees had to pass to get to their jobs. 
Counsel for Dominion had in part argued the company only had the right of use to the gate as per the terms of its lease, and was not legally obliged to maintain it, so was not in control of it. 
Judge Blackie said "narrow and technical arguments" were not consistent with the intent of the HSE Act, and noted that since its enactment in 1992 the definition of place of work had been expanded. 
He also found the company’s general manager must have known that the gate was liable to fail given previous problems with it, and that a single hinge was taking its weight. "The gate having failed twice before must have been seen as a hazard. It should have been the subject of regular inspections, particularly after it had been seen swinging in the wind or struck by vehicles." 
Murray Donald Clinton, the director of the cleaning company which had employed the woman, had pleaded not guilty to a s15 charge, claiming he had told the woman she was not allowed children at work. 
Judge Blackie found against him, noting a witness had seen Clinton on site in the company of the woman and her daughters. He said Clinton had failed to take any practical steps to enforce the prohibition. Evidence was also heard he was aware of the problems with the gate but did not advise the cleaner it was unstable. 
His company, Jiffy Cleaning Ltd, was found guilty of charges under sections 15 and 25 of the act. The commercial cleaning company was contracted by Amcor Packaging (NZ Ltd) trading as Ryco Dyes to clean its premises (Ryco had pleaded guilty over the same incident for a s15 offence.) One of the conditions of engagement was that children were not permitted on the premises. 
A DoL investigation revealed that the pin between the bottom clamp of gate and the post had been sawn off to allow the clamp to move. Most probably the bottom clamp slipped down the post either from the weight of the girls or the victim jumping off it, leaving the gate without support. 
Maintenance of the gate was shared by Dominion Bookbinders and Amcor on an informal basis. The arrangement was that whoever was responsible for any damage paid for the repairs. 
Four months before the fatality, an employee of Dominion Bookbinders was opening the gates when one snapped off the bottom hinge and fell on him. His manager replaced the broken hinge, but because the bottom pin had snapped and not been replaced there was no securing device preventing it from moving. Ryco was aware of this, the DoL said. 
In sentencing (Manukau DC, May 13) Jiffy Cleaning was fined $17,000 on charges including not notifying the DoL of a serious harm incident. The fine was reduced by two-thirds for financial reasons, and its director, Clinton, was fined $1000. 
Ryco was fined $20,000, reduced for its guilty plea, and ordered to pay reparations of $60,000. Dominion Bookbinders was fined $20,000, reduced due to financial circumstances. 
Industry:
Manufacturing
Sub-Industry:
Wood and Paper Product Manufacturing
Risk:
Struck by moving object
Harm:
Injury
Death
Penalty Amount:
$20000.00
Reparation Amount:
$0.00
Appeared in Safeguard issue 126
Defendant:
Murray Donald Clinton
A common gate to shared business premises is a place of work, a judge found in a case where some parties denied responsibility for a child’s death. 
Judge C.S. Blackie said in a reserved decision that he had had to determine whether or not a gate was a place of work after a company denied any culpability in the fatality. 
Dominion Bookbinders Ltd was charged under sections 15 and 25 of the HSE Act for the 2009 incident where the daughter of a cleaner was fatally injured after playing on a faulty gate. The cleaner had been on her way to clean another business located at the same address in Manukau. The businesses informally shared maintenance of the gate. 
Dominion was found guilty of the two charges, including failing to notify the DoL of the accident, after a hearing in which Judge Blackie found the gate was clearly a place of work (Manukau DC, 31 March). 
Judge Blackie said the gate was a fixed location in the wider business premises, which employees had to pass to get to their jobs. 
Counsel for Dominion had in part argued the company only had the right of use to the gate as per the terms of its lease, and was not legally obliged to maintain it, so was not in control of it. 
Judge Blackie said "narrow and technical arguments" were not consistent with the intent of the HSE Act, and noted that since its enactment in 1992 the definition of place of work had been expanded. 
He also found the company’s general manager must have known that the gate was liable to fail given previous problems with it, and that a single hinge was taking its weight. "The gate having failed twice before must have been seen as a hazard. It should have been the subject of regular inspections, particularly after it had been seen swinging in the wind or struck by vehicles." 
Murray Donald Clinton, the director of the cleaning company which had employed the woman, had pleaded not guilty to a s15 charge, claiming he had told the woman she was not allowed children at work. 
Judge Blackie found against him, noting a witness had seen Clinton on site in the company of the woman and her daughters. He said Clinton had failed to take any practical steps to enforce the prohibition. Evidence was also heard he was aware of the problems with the gate but did not advise the cleaner it was unstable. 
His company, Jiffy Cleaning Ltd, was found guilty of charges under sections 15 and 25 of the act. The commercial cleaning company was contracted by Amcor Packaging (NZ Ltd) trading as Ryco Dyes to clean its premises (Ryco had pleaded guilty over the same incident for a s15 offence.) One of the conditions of engagement was that children were not permitted on the premises. 
A DoL investigation revealed that the pin between the bottom clamp of gate and the post had been sawn off to allow the clamp to move. Most probably the bottom clamp slipped down the post either from the weight of the girls or the victim jumping off it, leaving the gate without support. 
Maintenance of the gate was shared by Dominion Bookbinders and Amcor on an informal basis. The arrangement was that whoever was responsible for any damage paid for the repairs. 
Four months before the fatality, an employee of Dominion Bookbinders was opening the gates when one snapped off the bottom hinge and fell on him. His manager replaced the broken hinge, but because the bottom pin had snapped and not been replaced there was no securing device preventing it from moving. Ryco was aware of this, the DoL said. 
In sentencing (Manukau DC, May 13) Jiffy Cleaning was fined $17,000 on charges including not notifying the DoL of a serious harm incident. The fine was reduced by two-thirds for financial reasons, and its director, Clinton, was fined $1000. 
Ryco was fined $20,000, reduced for its guilty plea, and ordered to pay reparations of $60,000. Dominion Bookbinders was fined $20,000, reduced due to financial circumstances. 
Industry:
Property and Business Services
Sub-Industry:
Property Services
Risk:
Struck by moving object
Harm:
Death
Penalty Amount:
$1000.00
Reparation Amount:
$0.00
Appeared in Safeguard issue 126
Defendant:
Jiffy Cleaning
A common gate to shared business premises is a place of work, a judge found in a case where some parties denied responsibility for a child’s death. 
Judge C.S. Blackie said in a reserved decision that he had had to determine whether or not a gate was a place of work after a company denied any culpability in the fatality. 
Dominion Bookbinders Ltd was charged under sections 15 and 25 of the HSE Act for the 2009 incident where the daughter of a cleaner was fatally injured after playing on a faulty gate. The cleaner had been on her way to clean another business located at the same address in Manukau. The businesses informally shared maintenance of the gate. 
Dominion was found guilty of the two charges, including failing to notify the DoL of the accident, after a hearing in which Judge Blackie found the gate was clearly a place of work (Manukau DC, 31 March). 
Judge Blackie said the gate was a fixed location in the wider business premises, which employees had to pass to get to their jobs. 
Counsel for Dominion had in part argued the company only had the right of use to the gate as per the terms of its lease, and was not legally obliged to maintain it, so was not in control of it. 
Judge Blackie said "narrow and technical arguments" were not consistent with the intent of the HSE Act, and noted that since its enactment in 1992 the definition of place of work had been expanded. 
He also found the company’s general manager must have known that the gate was liable to fail given previous problems with it, and that a single hinge was taking its weight. "The gate having failed twice before must have been seen as a hazard. It should have been the subject of regular inspections, particularly after it had been seen swinging in the wind or struck by vehicles." 
Murray Donald Clinton, the director of the cleaning company which had employed the woman, had pleaded not guilty to a s15 charge, claiming he had told the woman she was not allowed children at work. 
Judge Blackie found against him, noting a witness had seen Clinton on site in the company of the woman and her daughters. He said Clinton had failed to take any practical steps to enforce the prohibition. Evidence was also heard he was aware of the problems with the gate but did not advise the cleaner it was unstable. 
His company, Jiffy Cleaning Ltd, was found guilty of charges under sections 15 and 25 of the act. The commercial cleaning company was contracted by Amcor Packaging (NZ Ltd) trading as Ryco Dyes to clean its premises (Ryco had pleaded guilty over the same incident for a s15 offence.) One of the conditions of engagement was that children were not permitted on the premises. 
A DoL investigation revealed that the pin between the bottom clamp of gate and the post had been sawn off to allow the clamp to move. Most probably the bottom clamp slipped down the post either from the weight of the girls or the victim jumping off it, leaving the gate without support. 
Maintenance of the gate was shared by Dominion Bookbinders and Amcor on an informal basis. The arrangement was that whoever was responsible for any damage paid for the repairs. 
Four months before the fatality, an employee of Dominion Bookbinders was opening the gates when one snapped off the bottom hinge and fell on him. His manager replaced the broken hinge, but because the bottom pin had snapped and not been replaced there was no securing device preventing it from moving. Ryco was aware of this, the DoL said. 
In sentencing (Manukau DC, May 13) Jiffy Cleaning was fined $17,000 on charges including not notifying the DoL of a serious harm incident. The fine was reduced by two-thirds for financial reasons, and its director, Clinton, was fined $1000. 
Ryco was fined $20,000, reduced for its guilty plea, and ordered to pay reparations of $60,000. Dominion Bookbinders was fined $20,000, reduced due to financial circumstances. 
Industry:
Property and Business Services
Sub-Industry:
Property Services
Risk:
Struck by moving object
Harm:
Death
Penalty Amount:
$17000.00
Reparation Amount:
$0.00
Appeared in Safeguard issue 126
Defendant:
Amco Packaging t/a Ryco Dies
A common gate to shared business premises is a place of work, a judge found in a case where some parties denied responsibility for a child’s death. 
Judge C.S. Blackie said in a reserved decision that he had had to determine whether or not a gate was a place of work after a company denied any culpability in the fatality. 
Dominion Bookbinders Ltd was charged under sections 15 and 25 of the HSE Act for the 2009 incident where the daughter of a cleaner was fatally injured after playing on a faulty gate. The cleaner had been on her way to clean another business located at the same address in Manukau. The businesses informally shared maintenance of the gate. 
Dominion was found guilty of the two charges, including failing to notify the DoL of the accident, after a hearing in which Judge Blackie found the gate was clearly a place of work (Manukau DC, 31 March). 
Judge Blackie said the gate was a fixed location in the wider business premises, which employees had to pass to get to their jobs. 
Counsel for Dominion had in part argued the company only had the right of use to the gate as per the terms of its lease, and was not legally obliged to maintain it, so was not in control of it. 
Judge Blackie said "narrow and technical arguments" were not consistent with the intent of the HSE Act, and noted that since its enactment in 1992 the definition of place of work had been expanded. 
He also found the company’s general manager must have known that the gate was liable to fail given previous problems with it, and that a single hinge was taking its weight. "The gate having failed twice before must have been seen as a hazard. It should have been the subject of regular inspections, particularly after it had been seen swinging in the wind or struck by vehicles." 
Murray Donald Clinton, the director of the cleaning company which had employed the woman, had pleaded not guilty to a s15 charge, claiming he had told the woman she was not allowed children at work. 
Judge Blackie found against him, noting a witness had seen Clinton on site in the company of the woman and her daughters. He said Clinton had failed to take any practical steps to enforce the prohibition. Evidence was also heard he was aware of the problems with the gate but did not advise the cleaner it was unstable. 
His company, Jiffy Cleaning Ltd, was found guilty of charges under sections 15 and 25 of the act. The commercial cleaning company was contracted by Amcor Packaging (NZ Ltd) trading as Ryco Dyes to clean its premises (Ryco had pleaded guilty over the same incident for a s15 offence.) One of the conditions of engagement was that children were not permitted on the premises. 
A DoL investigation revealed that the pin between the bottom clamp of gate and the post had been sawn off to allow the clamp to move. Most probably the bottom clamp slipped down the post either from the weight of the girls or the victim jumping off it, leaving the gate without support. 
Maintenance of the gate was shared by Dominion Bookbinders and Amcor on an informal basis. The arrangement was that whoever was responsible for any damage paid for the repairs. 
Four months before the fatality, an employee of Dominion Bookbinders was opening the gates when one snapped off the bottom hinge and fell on him. His manager replaced the broken hinge, but because the bottom pin had snapped and not been replaced there was no securing device preventing it from moving. Ryco was aware of this, the DoL said. 
In sentencing (Manukau DC, May 13) Jiffy Cleaning was fined $17,000 on charges including not notifying the DoL of a serious harm incident. The fine was reduced by two-thirds for financial reasons, and its director, Clinton, was fined $1000. 
Ryco was fined $20,000, reduced for its guilty plea, and ordered to pay reparations of $60,000. Dominion Bookbinders was fined $20,000, reduced due to financial circumstances. 
Industry:
Manufacturing
Sub-Industry:
Wood and Paper Product Manufacturing
Risk:
Struck by moving object
Harm:
Death
Penalty Amount:
$20000.00
Reparation Amount:
$60000.00
Appeared in Safeguard issue 126

Judgment Text

RESERVED DECISION OF JUDGE C S BLACKIE 
Judge C S Blackie
Introduction 
[1]
This case arises out of a tragedy. On 1 February 2009, Ms Lilian Peita was employed as a part-time cleaner by the second defendant, Jiffy Cleaning Ltd. She was required to attend at the premises of a number of South Auckland businesses to carry out cleaning duties. 
[2]
The 1 February 2009 was a Sunday. On that day, Ms Peita was to clean the premises of Amcor Packaging (New Zealand) Ltd, trading as Ryco Dyes, a client of her employer, the second defendant. Ryco Dyes' premises was situated at 139 Kerr's Road, Manukau. Ryco was one of three tenants occupying buildings at that address. 
[3]
On arrival at 139 Kerr's Road, Ms Peita drove up to the gate, which gives access to a common driveway, utilised by all three tenants. It was locked. With her, in the car, Ms Peita had her two daughters, Ricky Lee, aged 9, and Shealine, aged 7. Ms Peita gave Ricky Lee the key to the padlock. Ricky Lee got out and Shealine followed. Ms Peita drove through the gates into the premises and parked outside the office of Ryco. 
[4]
It is not quite clear what actually happened. As Ms Peita drove through the gate, she became unsighted as far as the children's activities were concerned. There is a possibility that one or other of the children might have swung or jumped on the gate but as there were no witnesses, it is not possible to determine exactly what the children did as their mother passed through in the car. What is clear is that the gate came off its hinges and was found on the ground, beside Shealine. It is not clear whether the gate struck her or if she sustained her injuries from jumping or falling. In any event, the injuries were serious. Shealine was transported immediately to hospital. She died 13 February 2009. 
[5]
The gate is mounted on two hinges attached to a steel pole. It is a substantial structure, with a galvanised steel framework, covered with a heavy wire mesh. The top hinge is inverted downwards, so as to prevent easy removal. The bottom hinge carries all the weight. Each hinge is attached to the steel pole by a collar that is clamped by tightening a single bolt. As an extra precaution, a hole has been drilled in the bottom collar, through which an additional hole can be drilled through the steel pole and a stud bolt fitted to prevent the collar slipping downwards. If the bottom collar were to fail, ie to slip down the pole, the gate would then detach from both hinges and collapse to the ground. So it did on 1 February. 
The Charges 
[6]
Arising out of the collapse and the death of Shealine, the Department of Labour have brought a number of charges pursuant to the Health and Safety in Employment Act 1992 
[7]
First and second defendants, Dominion Bookbinders Ltd (Dominion) and Jiffy Cleaning Ltd (Jiffy), each face charges under s 15 and ss 25(3) and 50(1)(b) of the Act: 
“15.
Duties of Employers to People Who are Not Employees 
Every employer shall take all practicable steps to ensure that no action or inaction of any employee while at work harms any other person. 
25.
Recording and Notification of Accidents and Serious Harm 
(3)
If there occurs any serious harm or accident to which this sub-section applies, the employer, self-employed person, or principal concerned must — 
a)
As soon as possible after the occurrence becomes known to the employer, self-employed person, or principal, notify the secretary of the occurrence; and 
b)
Within seven days after the occurrence, or, if the occurrence is not known to the employer, self-employed person, or principal within that period, as soon as possible after it becomes known, give the secretary written notice, in the manner prescribed, of the circumstances of the occurrence. ”
[8]
Section 25(3)(a) is an offence by virtue of s 50(1)(b). Neither section requires the prosecution to prove intent, in accordance with s 53 of the Act. 
[9]
Dominion is charged that, as an employer, it failed to take all practicable steps to ensure that no action by an employee, namely Lance Hartshorne, while at work, harms any other person, namely Shealine Ross. Dominion is also charged with failing to notify the incidence of serious harm suffered by Shealine in the place of work controlled by it as soon as possible after it had occurred and Dominion had knowledge of it. The informant alleges that Dominion learned of the accident on 3 February 2009, two days afterwards, and took no steps to notify the occurrence. 
[10]
The second defendant Jiffy's failure relates to not advising Ms Pieta that her children were prohibited from the work premises and failing to enforce this rule. Furthermore, Jiffy failed to maintain a list of hazards and controls in its workplace and induct Ms Pieta accordingly. 
[11]
The third defendant, Murray Clinton, is a named director of Jiffy. He is charged under s 56 of the Act: 
“56. Offences by Bodies Corporate (or Crown Organisations) 
1)
Where a body corporate fails to comply with a provision of this Act, any of its officers, directors, or agents who directed, authorised, assented to, acquiesced in, or participated in, the failure is a party to and guilty of the failure and is liable on conviction to the punishment provided for the offence, whether or not the body corporate has been prosecuted or convicted. ”
[12]
The informant alleges that if Jiffy failed to comply with s 15 of the Act, Mr Clinton being a director of Jiffy participated in that failure and is also guilty of that failure. 
[13]
Maintenance of the gate had been shared by Ryco and Dominion on an informal basis. The understanding was that whoever was responsible for the damage paid for the repairs. There were two previous incidents which indicated that both Ryco and Dominion knew about problems with the gate. It is clear from the evidence I have heard that, from time to time, the gates would swing in the wind, as they were not properly secured when open. There were occasions when a swinging gate would be struck by a passing vehicle, particularly heavy trucks. The swinging and any sudden impact was likely, therefore, to cause wear to, and ultimate failure of, the hinges. 
Outline of the Charges Against the Defendants 
As Against the First Defendant 
[14]
Mr Hartshorne, employee of Dominion, fixed the gate following previous damage in October 2008. He removed the broken bottom hinge, replacing it with a new hinge. He claimed that he also inserted a security bolt through the bottom column, being part of the hinge, and the gatepost. It was four months after Mr Hartshorne had attended to the gate that it collapsed. 
[15]
The informant alleges that Dominion failed to take the following four practicable steps: 
a)
Identify the gate as a hazard; 
b)
Investigate the previous incidents; 
c)
Include the gate in its maintenance programme, given the previous incidents and potential damage from trucks and other vehicles; and 
d)
Ensure the gate was repaired by a competent person following the 2008 incident. 
As Against the Second Defendant 
[16]
Mr Clinton, as a director of Jiffy Cleaning Ltd, was the person who contracted with Ryco on behalf of Jiffy. He failed to advise Ms Pieta of the prohibition on children at Ryco's premises, as required by the contract; he failed to enforce the prohibition once it became known to him that Ms Pieta was taking children to Ryco and failed to obtain a list of hazards and controls at Ryco's workplace and to maintain that list to which Ms Pieta may be exposed and induct her accordingly. 
As Against the First and Second Defendants 
[17]
Section 25(3) requires an account of serious harm to which the section relates to be notified as soon as possible after the occurrence became known to the person. 
[18]
Shealine was a person in a place of work controlled by both Dominion and Jiffy and suffered serious harm. Both defendants were required to notify as soon as possible after the incident became known to them on Tuesday, 3 February 2009. 
As Against the Third Defendant 
[19]
The second defendant employed Mr Murray Clinton as a director and Lilian Pieta, the child's mother, as a cleaner. Mr Clinton was aware that Ms Pieta was taking her children to work at Ryco and was present when Ms Pieta and the children were at work. He did nothing about the children being present at the workplace. 
[20]
The informant alleges that Mr Clinton, therefore, as a director of Jiffy, participated in the offending by the company and is a party to and liable for that failure in accordance with s 56(1) of the Act. 
As Against Amcor Packaging (New Zealand) Ltd — Ryco 
[21]
Ryco is also being charged under s 15 and s 25(3) of the Act. However, it has pleaded guilty and was not present or represented at the hearing that took place earlier this month. Mention is made of the charges against Ryco for the sake of completeness. 
Issues for Determination 
[22]
Although a considerable amount of evidence was called during the course of the hearing, much of it was scene setting and uncontested. Two witnesses for the defendant, Mr Hartshorne and Mr Clinton, gave evidence of the steps that they had taken in relation to their respective business enterprises as to health and safety. It is not necessary for me to closely analyse the evidence of various witnesses, as credibility does not form an important aspect in this case. The purpose of the evidence was to establish a factual background which pertains to the legal issues which are required to be discussed and in respect of which all counsel addressed the Court at considerable length once the evidence was concluded. From what I have heard and from what has been submitted, I distil the following specific issues as falling for determination in respect of each defendant: 
First Defendant 
a)
Is the gate included within the definition of ‘place of work’ under s 2 of the Act? 
b)
Does Dominion have control over the gate for the purposes of s 2 of the Act? 
c)
If so, did Dominion take all practical steps to ensure that Shealine Ross was not harmed by the actions or inaction of Mr Hartshorne, its employee? 
d)
Did Dominion, having knowledge of the accident of 1 February 2009, on 3 February 2009 fail to notify the Department of Labour? 
Second Defendant 
a)
Is the incident a workplace accident? 
b)
If so, did Jiffy fail to take all practical steps to ensure that Shealine Ross was not harmed by the inaction of Mr Clinton, as director? 
c)
Did Jiffy, having knowledge of the accident of 1 February 2009, by 3 February 2009 fail to notify the Department of Labour? 
Third Defendant 
Did Mr Clinton, as director of Jiffy, participate in the failure by Jiffy to comply with any provisions of the Act? 
Relevant Law 
[23]
The Court of Appeal in Central Cranes Ltd v Department of Labour [1997] 3 NZLR 694Has Cases Citing which are not known to be negative[Green]  and at page 701, noted the following about the purpose of the Act: 
“It is clear that the act adopts a preventative approach to maintaining and promoting health and safety in workplaces. 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 fact that the primary obligations to procure safety rests on the employer does not exonerate or diminish the responsibility of others in other capacities recognised in ss 15 — 19 from discharging the statutory duty imposed upon them. Section 2(2) could not be more clear; the same person may represent two or more of these capacities; the same duty may at one time be imposed on two or more persons whether in the same capacity or in a different capacity; and no duty imposed on any person is to be diminished or affected by the fact that it also may be imposed on one or more other persons. 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. ”
[24]
Of particular relevance to this case is the observation by the Court of Appeal that s 2(2) of the Act provides that at any one time more than one person can have a duty under the Act whether in the same capacity or different capacities: and the duty imposed by the Act on any person is not diminished or affected by the fact that it is also imposed on one or more other persons, whether in the same capacity or in a different capacity. This means that both defendants can have the same obligation under s 50 in respect of the same set of circumstances at the same time. 
[25]
Ms Fulton, counsel for the second defendant, submitted that whilst s 15 refers to “harms any other person”, the purpose of the legislation is to ensure that people at work or affected by the work of other people will be protected from harm: Department of Labour v Kay (1998) 5 NZELC 98, 491. With respect, I consider there is no such restriction on the persons who fall within s 15. 
Is the Gate a Place of Work? 
[26]
Whether or not the gate to the premises was a “place of work” is the first fundamental issue to be determined in this case. It is defined in s 2 as: 
“A place (whether or not forming part of a building [structure, or vehicle]) where any person is to work, is working, for the time being works, or customarily works, for gain or reward; and, in relation to an employee, includes a place,or part of a place under the control of the employer (not being domestic accommodation provided for the employee), - 
a)
Where the employee comes or may come to eat, rest, or get first aid or pay; or 
b)
Where the employee comes or may come as part of the employee's duties to report in or out, get instructions, or deliver goods or vehicles; or 
c)
Through which the employee may or must pass to reach a place of work. ”
[27]
The phrase “place of work” has been subject to judicial consideration in a number of decisions. For the informant, Mrs Carr submits that on an ordinary construction, the gate is clearly within the definition of s 2(c). Ms Boell, for the first defendant, submitted that the gate is not “under the control”; the gate was not Mr Hartshone's place of work, as Dominion (the second defendant) was not the owner, lessee, sub-lessee, occupier or person in possession of the gate but that Dominion, as per the terms of its lease, only had the right of use. Ms Boell further submitted, in support of this proposition that Dominion is not legally obligated to maintain the gate, hence it cannot be said to have been “in control” of it. Counsel cited Department of Labour v P F Olsen Ltd [2002] DCR 943Has Litigation History which is not known to be negative[Blue] ; Department of Labour v Berryman [1996] DCR 121Has Cases Citing which are not known to be negative[Green]  and Department of Labour v Dive Co Ltd (CA) (2004) 2 NZELR 72Has Litigation History which is not known to be negative[Blue] , in support. 
[28]
Upon analysis, these cases can be distinguished from the facts and the issues before the Court. In Olsen, the paramount issue was whether the defendant was a “principal” under s 18. As the defendant had not engaged the services of the injured employee or paid the employee, it was not a “principal” under the Act. Not being a principal, it had no control over the injured employee and, hence, did not have the ability to “take steps”. This is not an issue in the present case and, hence, I cannot see its relevance. 

From OSH Tracker

Table of Contents