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Safeguard OSH Solutions - Thomson Reuters

Safeguard OSH Solutions - Thomson Reuters



OSH Tracker

Department of Labour v Builders Corner Ltd (DC, 30/11/10)

OSH Tracker

Defendant:
Builders Corner Ltd
Builders Corner Ltd was fined $10,000 and ordered to pay reparation of $17,500 under s6 after a weed bucket fell on an employee whose leg was fractured. The company had used a weed bucket that was incompatible with the quick hitch connection on the excavator arm, and failed to use a locking pin ( Auckland DC, November 30, 2010). 
Industry:
Construction
Sub-Industry:
General Construction
Risk:
Struck by falling object
Harm:
Injury
Penalty Amount:
$27500.00
Reparation Amount:
$17500.00
Appeared in Safeguard issue 127

Judgment Text

RESERVED JUDGMENT OF JUDGE R L KERR 
Judge R L Kerr
Background 
[1]
The defendant pleaded guilty to a breach of s 6 of the Health and Safety in Employment Act 1992 (HSE). 
[2]
The nature of the offence was that, on or about 3 November 2009, the defendant, being an employer, failed to take all practicable steps to ensure the safety of an employee, namely, William Michael Halcrow, while at work, in that it did fail to take all practicable steps to ensure William Michael Halcrow was not exposed to injury while unloading an X100-1 Hitachi Excavator and attachments. 
[3]
On or about 7 July 2010, the defendant pleaded guilty to the charge. 
[4]
The matter was adjourned for sentence until 14 October 2010, there being a further adjournment until 30 November 2010 so that there could be a disputed fact hearing. 
[5]
However, the matter I have to deal with is whether or not a plea of guilty having been entered, I am obliged to enter a conviction against the defendant. 
[6]
The defendant submits that I am not so obliged and relies on s 78A(1) of the Summary Proceedings Act (SPA). The section provides: 
“78A conviction not to be recorded for infringement offences. 
(1)
Notwithstanding any other provision of this or any other act, where in proceedings for an infringement offence (whether being an offence for which an infringement notice has been issued or not) the defendant is found guilty of, or pleads guilty to, the offence and the court would, but for this subsection, convict the defendant, the court shall not convict the defendant but may order the defendant to pay such fine and costs and make such other orders as the court would be authorised to order or make on convicting the defendant of the offence. ”
The question is whether the defendant was charged with “an infringement offence”
[7]
Section 2 of SPA defines “infringement offence” as “any offence under any Act in respect of which a person may be issued with an infringement notice”
[8]
The defendant submits that the defendant was charged with an offence in respect of which an infringement notice could have been issued. Section 56A of the HSE Act provides that: 
‘Infringement offences’, for the purposes of that Act, means an offence described in s 50(1) of the HSE Act. ”
The informant submits that under s 50(1) HSE, a suspect may be prosecuted summarily by the laying of an information under s 12 SPA, without the need for leave under s 21(1)(a) of the SPA or alternatively the proceeding could be commenced by way of an infringement notice under s 56B of the HSE Act where the conditions outlined in s 56B are met. 
Considering the Issue 
[9]
Under HSE s 4: 
“Nothing in this Act, or in any code of practice under this Act, derogates from the effect of any other enactment for the time being in force. ”
[10]
Under s 54A HSE: 
“(1)
An inspector may lay an information in respect of an offence under this Act unless an infringement notice has been issued to the same defendant in respect of the same matter. ”
(emphasis added)
[11]
Under s 54B HSE an information, in the circumstances described in the section, may be laid at any time within six months. The events giving rise to the prosecution occurred on 3 November 2009 but it seems to be accepted that the circumstances to which the offence related were later than that, so no exception is taken to the information being laid when it was. 
[12]
Under s 21(1) SPA proceedings with regard to an infringement notice may be commenced with the leave of a District Court Judge or a Registrar by laying an information under the Act or by filing a Notice of Prosecution or where an infringement notice has been issued in respect of the offence, the filing in court of a copy of a reminder notice. 
[13]
The informant takes the position that it did not file an infringement offence notice of any type and that it commenced the proceeding by way of a duly lodged information in terms of both the SPA and HSE. 
[14]
In considering legislation, one has to have regard to the Interpretation Act 1999 where under s 5 the meaning of an enactment has to be ascertained from its text and in the light of its purpose. The matters to be considered in ascertaining the meaning include the indications provided in the enactment and reference is then made to preambles, the analysis, the table of contents, headings to parts and sections, marginal notes, diagrams, graphics, examples and explanatory material and the organisation of the format of the enactment. Under s 6 an enactment applies to circumstances as they arise. 
[15]
Wylie J, in Wallace Corporation Limited v Cross and Ors (High Court, Hamilton, CRI-2008-404-000404 405, 406,) at para 30 said in effect that Courts should try and make statutes work as Parliament intended them to work. 
[16]
The informant refers to enactments preceding HSE and notes that prior to the infringement notice regime being introduced, prosecution for offences under HSE were commenced by laying informations as were prosecutions under the earlier statutes. 
[17]
The informant then traces the movement of HSE through Parliament and notes that the Honorable Margaret Wilson, the then Minister of Labour, in referring to the bill before the house said: 
“Effective enforcement tools are required as a deterrent to poor injury prevention practice, and to demonstrate the seriousness of protecting human life and well being in the workplace. ”
She went on to refer to these things: 
“The introduction of the new fine levels is intended to encourage people to treat health and safety at work as a serious matter. These will bring us into line with comparable countries. They are also consistent with levels in comparable legislation such as the Resource Management Act and the Hazardous Substances and New Organisms Act. Only occupational safety and health service officers will be able to offer infringement notices — that is, instant fines — for obvious and clear cut breaches of the Act …  ”
[18]
From what was said in Parliament, it seems clear to me that Parliament did not intend to restrict or change the statutory power of health and safety inspectors to prosecute by means of informations. 
[19]
Reference is then made to the summary procedure for minor traffic offences which indicates that Parliament was intending to overcome the problem of numerous minor prosecutions in court by using a minor traffic offence procedure. 
[20]
Under s 2(1) of HSE the enforcement actions available under that Act in relation to an inspector are the laying of an information under the Act or issuing an infringement notice under the Act or making an application for a compliance order. 
[21]
Again, returning to SPA, a summary offence: 
“Means any offence for which the defendant may not, except pursuant to an election made under s 66 of this Act, be preceded against by indictment. ”
Here I would find that the offence which is before me is a summary offence. 
[22]
Infringement offence: 
“Means any offence under any Act in respect of which a person may be issued with an infringement notice. ”
The use of the word “may” would seem to suggest somebody taking decisions has a discretion, assuming that an infringement notice may be issued as to whether to issue it as such or lay an information. 
[23]
Under s 78A convictions are not to be recorded for infringement offences but once an inspector has determined to lay an information then that section no longer applies and of course, as I have said already, it is for the inspector to determine whether or not he or she will proceed by way of infringement or by laying an information. 
[24]
Having determined to lay an information then, in my view, having regard to the nature of the statute, the public welfare aspect of it, and the need to encourage health and safety in work places or at work, Parliament did not intend no conviction to be entered against somebody who has pleaded guilty to a charge with which I have been dealing. 
[25]
Accordingly, I would enter a conviction. 

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