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OSH Tracker

Worksafe New Zealand v Department of Corrections (DC, 22/09/16)

OSH Tracker

Defendant:
Department of Corrections
Work placement lessons 
Any organisation which is arranging somebody under its care to be placed in a workplace to carry out work needs to ask questions about the nature of the work and its risks, and to have systems in place to react appropriately when the answers are unsatisfactory. 
This is a key lesson from the conviction of the DEPARTMENT OF CORRECTIONS, which pleaded guilty to a charge laid under s15 of the HSE Act after a man, ‘C’, doing community service was killed in June 2014 while on a placement with the Anglican Church in Wakefield, near Nelson. He and another man also doing community service, ‘P’, were using a chainsaw to cut up a large tree that had been felled weeks earlier by P and the vicar and had been left in an unsafe position on sloping ground above the church. P used the chainsaw to cut the tree into rings while C rolled them down the slope. At some point the remaining part of the tree became unstable and rolled down the slope, striking C and pinning him under a weight of 400kg. He died from his injuries. The vicar at the church, who usually supervised any community service work on site, was unwell on that day and was not present. 
The court found the failures amounted to a systemic failure to train, assess risk, detect changes in circumstances (such as supervisor illness), assess an agency sponsor’s H&S systems, and set expectations. 
Regarding the ability of probation officers to influence health and safety outcomes, the judge found the connection to be clear. “While probation officers’ actions or inactions may not be the direct cause of any harm, the control that [they] have over an offender’s community work placement means that their failings in health and safety management may harm the offender.” 
Industry:
Government Administration and Defence
Sub-Industry:
Government Administration
Risk:
Struck by falling object
Harm:
Death
Penalty Amount:
$0.00
Reparation Amount:
$0.00
Appeared in Safeguard issue 160

Judgment Text

RESERVED JUDGMENT OF CHIEF JUDGE JAN-MARIE DOOGUE 
Chief Judge Jan-Marie Doogue
Executive Summary 
[1]
The Department of Corrections (“Corrections”) being an employer is charged with failing to take all practicable steps to ensure that no action or inaction of any of its employees while at work harmed any other person, namely Robert Charles Ian Cave (“Mr Cave”). 
[2]
Corrections assessed Mr Cave as suitable for serving his sentence of community work at an agency placement at the Anglican Church in Wakefield, Nelson (“the Church”). On the 7th of June 2014, Mr Cave died from injuries he sustained when he was hit and pinned under an approximately 400 kilogram log on a hillside behind the Church. The fatal accident occurred while Mr Cave and another offender were cutting up the log. The usual supervisor, the vicar of the Church, was unwell and let the two offenders complete the work unsupervised. 
[3]
Probation officers' conduct in creating community work placements may harm offenders. However, Corrections failed to address this conduct adequately prior to Mr Cave's accident by taking practicable steps to eliminate and mitigate errors in probation officers' approach to safety in community work agency placements. I find that Corrections failed to meet its duty under s 15 of the Health and Safety in Employment Act 1992. 
[4]
I also find that responsibility for Mr Cave's death specifically does sit with Corrections. The vicar's actions on the day of Mr Cave's death were seriously flawed but they were flawed by reason of Corrections' failure to train its employees properly concerning health and safety matters, and to communicate and enforce requisite standards of conduct in relation to community work agency placements. Though Corrections' failures do not represent the most direct cause of Mr Cave's death nonetheless its failures do represent a cause of his death. 
Preliminary observations on how to approach Admission of Facts 
[5]
The Prosecuting Agency (“WorkSafe”) and Corrections agreed, pursuant to ss 9(1)(b) and 9(2) of the Evidence Act 2006, to admit many facts surrounding the events on 7 June 2014 and Corrections' processes. The s 9(2) admission of facts includes acknowledgement by Corrections that there were 14 steps which it could have taken, but failed to take (“the Admitted Steps”). Aside from the Admitted Steps, WorkSafe sought to prove that Corrections had failed to take three further steps (“the Disputed Steps”). The Admitted Steps and the Disputed Steps are set out in Appendix 1. 
[6]
Corrections' admission to the Admitted Steps and acceptance that the Disputed Steps were practicable must be viewed with caution. While Corrections conceded that the Admitted Steps were steps it could have taken, Corrections disputes that the Admitted Steps were steps it should have taken. Corrections challenged the “causative link” between the practicable steps and its employees' actions or inactions, and its employees' actions or inactions and the harm.1
| X |Footnote: 1
As discussed below at [48]—[51]. 
In doing so, Corrections raised questions around the knowledge of the steps' efficacy, foreseeability,2
| X |Footnote: 2
For example, Corrections submitted in closing submissions that all of the factors relating to Reverend Wasley's actions demonstrate that the circumstances which arose on the day of the accident were not reasonably foreseeable. 
and WorkSafe's specification of the harm. These are matters which bear on the analysis of whether a step is practicable for ensuring that no probation officer's action or inaction while at work harms any other person. Despite Corrections' concessions, the practicability of the Admitted Steps and the Disputed Steps remains in issue. 
[7]
A further contributing factor to my concern about Corrections' admission is the connection between the Admitted Steps and the Disputed Steps. The 14 Admitted Steps are constituent parts of the Disputed Steps. For example, the provision of a handbook may go to whether the agency knew and understood its responsibilities. The Admitted Steps and the Disputed Steps must be considered in the round and I find it necessary to reassess the Admitted Steps in order to satisfy myself on those steps and the remaining three Disputed Steps. 
Background 
[8]
Corrections is the government department which administers New Zealand's corrections system. This responsibility includes arranging and administering community work sentences. Offenders on these sentences are specifically managed by Community Probation (“Probation”). Probation officers are employed by Corrections. 
[9]
Offenders may complete their community work sentence at a Corrections-run community work centre or on placement with an external agency. There are three stages of assessments and agreements which are undertaken before an offender is placed at an agency. First, Corrections uses a Community Work Agency Assessment (“Agency Assessment”) to determine whether an agency generally presents an appropriate site for offenders to complete their community work hours. When completing an Agency Assessment, a probation officer meets with a representative of the agency, known as the agency sponsor. At the meeting, the requirements and responsibilities of both Corrections and the agency are discussed. The Agency Assessment identifies the terms that apply to all placements at the agency and the scope of work offered by the agency. The obligations of the agency and Corrections are also set out in a Community Work Agency Agreement (“Agency Agreement”) signed by a representative from Corrections and the agency sponsor. 
[10]
Secondly, a probation officer determines whether a specific offender should be placed at a Corrections-run community work centre or with an agency in accordance with s 62 of the Sentencing Act 2002. Probation officers conduct an interview and induction with the offender. Corrections requires probation officers to complete Community Work Induction Confirmation (“Induction Confirmation”), Community Work Placement Assessment, and Work and Living Skills Suitability forms with the offender before any placement is made. 
[11]
Thirdly, where an offender is considered suitable for placement with an agency, a probation officer puts in place a Community Work Agency Three Way Agreement (“Three Way Agreement”) between the agency, Corrections and the offender. The Three Way Agreement specifies where and when the community work will be done as well as the number of hours the offender is to complete. Over the course of an offender's placement with an agency, Corrections receives information on the placement's progress through attendance records, site visits and annual reviews of the agency. 
[12]
Mr Cave was serving his sentence on agency placement with the Wakefield Parish of the Anglican Diocese of Nelson (“the Diocese”), having been assessed as suitable for agency placement. At the time of Mr Cave's placement at the Church, Reverend Allan Wasley was acting as the Diocese's agency sponsor though the Diocese claimed that it had no knowledge of this. The interactions between Probation and Reverend Wasley are recorded in notes on Corrections' systems and in: 
An Agency Assessment that Reverend Wasley returned to Corrections by post in March 2012 (“2012 Agency Assessment”). 
An Agency Agreement signed also in March 2012 (“2012 Agency Agreement”). 
An Agency Assessment and review booklet completed on 21 February 2014 (“2014 Agency Review Booklet”). 
An Agency Agreement signed on 21 February 2014 (“2014 Agency Agreement”). 
[13]
In the 2012 Agency Assessment and the 2014 Agency Review Booklet, the community work available for offenders at the Church is described as: 
Clearing of fields & cemetery from noxious plants 
Cleaning of water courses 
Wet Weather: Clean & Vacuum of Church Plant 
The events of 7 June 2014 
[14]
On 7 June 2014, another offender (“Mr P”) and Mr Cave reported to Reverend Wasley at the Church. Reverend Wasley was unwell, and left Mr P and Mr Cave to complete work unsupervised. Mr P and Mr Cave carried out work on a tree that had been felled a number of weeks prior by Reverend Wasley and Mr P. The felled tree was resting in an unsafe position on a hillside behind the Church. Mr P used a chainsaw to cut the felled tree into rings while Mr Cave collected the rings, rolling them down the slope towards the Church. The felled tree became unstable and rolled downhill at speed, struck and pinned Mr Cave who later died from the resulting injuries. 
Questions for determination 
[15]
In order to determine whether the charge is proven beyond doubt, I must address the following questions: - 
(a)
Is WorkSafe required to identify and prove the occurrence of specific actions or inactions of Corrections' employees? 
(b)
What does “action or inaction while at work” mean for the purpose of s 15 of the HSEA 1992? 
(c)
Is the harm required to be proximate to the employees' place of work? 
(d)
Does s 15 of the HSEA 1992 require the actions or inactions of Corrections' employees to have caused any harm or potential harm that has occurred? 
(e)
Were the Admitted Steps and Disputed Steps, practicable steps for the purpose of s 15 of the HSEA 1992? 
(f)
Did Corrections, in fact, take the Admitted Steps and Disputed Steps? 
Expert evidence 
[16]
I heard from three experts. Dr Kathleen Callaghan and Mr Gavin Johnson provided expert evidence for the prosecution. Dr Callaghan is a qualified occupational and environmental physician with a specialisation in human factors. Mr Johnson is a qualified health and safety consultant who has over 32 years of experience providing health and safety guidance to public and private organisations throughout Australia, New Zealand, Asia and Mauritius. Mr Michael Cosman, the sole expert for Corrections, is a director of a risk and safety consultancy business who has worked in the area of occupational health and safety for 37 years and has several relevant qualifications. 
[17]
Dr Callaghan said that when formulating health and safety processes, the initial focus must be on elimination of error. Health and safety processes must be designed properly to take account of all actors' capabilities and to address errors before they arise. Responsibilities and accountabilities need to be unambiguously understood, and any gaps need to be addressed prior to work commencing. Documents addressing health and safety matters are one resource which must be formulated in this way. Open-ended questions posed in such documents, which act as a “fishing exercise”, are unhelpful. People answering the document's questions will not be able to provide accurate and helpful answers unless they know why the questions are being asked. Otherwise, the person may not recognise the relevance of particular information. 
[18]
Proper formulation of health and safety processes is not sufficient on its own, however. A good health and safety system also will detect errors, and contain or mitigate those errors. If a person departs from the health and safety processes developed, this deviation needs to be both detected and addressed. If it is not, the deviation will appear acceptable to the individual involved and the deviation likely will recur. 
[19]
Multi-layered protections of these types are required in the context of health and safety. Dr Callaghan described this requirement with reference to what is known as the “Swiss Cheese Model”. Each contributing factor to an accident can be viewed as a hole in a piece of Swiss cheese. The slice of Swiss cheese closest to the accident represents the direct actions of individuals, and slices further back relate to matters such as work environment and organisational systems. An alignment of holes in a number of different slices is ultimately what leads to an accident. The existence of one single hole is not the sole cause of an accident. The purpose of a comprehensive health and safety system is to identify holes and reduce their size or cover them up. The fewer the holes in the Swiss cheese, the less the likelihood that a particular accident will occur. 
[20]
Both Dr Callaghan and Mr Johnson concluded that there were systemic failings in Corrections' approach to health and safety generally at the time of Mr Cave's accident and, specifically, its responsibility to Mr Cave as an offender serving a sentence of community work at an agency. They opined that Corrections had in place neither an adequate health and safety management policy nor adequate health and safety processes in the context of community work placements at agencies. Corrections had, in Mr Johnson's view, taken a disjointed approach to hazard and risk management, and had not given enough attention to detail. The result being that such health and safety processes as were in place did not address the specific needs of the community work context. 
[21]
Mr Cosman disputed that legal responsibility lay with Corrections but did agree with Dr Callaghan and Mr Johnson's views of how good health and safety policy and processes are developed. He also conceded that all of the practicable steps raised by WorkSafe were steps Corrections was required to take in terms of the design of safety policy and processes, and that if the court concluded legal responsibility did rest with Corrections, he had no dispute with the WorkSafe's expert evidence that Corrections' health and safety processes were inadequate. 
Inspector of Corrections Report and Health & Safety Investigation Report 
[22]
Following Mr Cave's death, the Inspector of Corrections investigated the circumstances of Mr Cave's accident. The Inspector of Corrections' findings are summarised in an undated draft report. In addition to the Inspector of Corrections' report, a health and safety investigation report dated 7 June 2014 was produced for Corrections' Health and Safety Risk Governance Committee. Both reports were admitted in evidence by consent. While their content contains both fact and opinion, I cannot conclusively find that there was acceptance as to the truth of their contents. The reports have drawn the same or similar conclusions as I have in this judgment. However, I have not taken cognisance of the truth of their contents. In effect, both reports undertook a similar task to the court but without the totality of the evidence available to the court. 
The Law 
The Act 
[23]
The HSEA 1992 is an enabling and preventative piece of legislation. Higher courts have stated that:3
| X |Footnote: 3
Department of Labour v Hanham and Philp Contractors (2008) 6 NZLER 79 at [22]; Central Cranes Ltd v Department of Labour [1997] 3 NZLR 694 (CA)Has Cases Citing which are not known to be negative[Green]  at 701—703. 
 
“•
The principal object of the Act is to provide for the prevention of harm. 
Employers are required to promote safety in the workplace and to take all practicable steps to ensure employees and others in the workplace are not harmed. 
While the primary obligation to promote and ensure safety rests upon the employer, this does not exonerate or diminish the responsibility of other persons in other capacities recognised in Part 2 from discharging the statutory duty imposed upon them. 
There is no valid distinction to be drawn between a positive duty to act and a negative duty to avoid harm. 
The question of what is a practicable step to ensure safety in the workplace is a matter of fact and degree in each case. ”
[24]
The HSEA 1992's preventative object flows into the duties set out in this Act. It assigns ownership of workplace health and safety to employers and others. Those with duties under the HSEA 1992 are responsible “not only to ensure that no harm actually occurs, but to maintain safe practices which will protect themselves or others from harm”.4
| X |Footnote: 4
Department of Labour v Kay HC Auckland AP 326/96, 8 December 1997 at 12. 
 
Sections 15 and 50(1)(a) of the Health and Safety in Employment Act 1992 
[25]
One such duty the HSEA 1992 places on employers is that in s 15 of the HSEA 1992 which provides: 
“Every employer shall take all practicable steps to ensure that no action or inaction of any employee while at work harms any other person. ”
[26]
For the purposes of interpreting the provisions of the HSEA 1992, I have had no regard to s 36 of the Health and Safety at Work Act 2015. Whether a gap has or has not been perceived to exist is irrelevant to my task of interpreting s 15 of the HSEA 1992. 
[27]
Failure to meet the duty imposed by s 15 attracts the liability described in s 50(1)(a) of the HSEA 1992. Section 50 is a strict liability offence5
| X |Footnote: 5
Buchanans Foundry Ltd v Department of Labour [1996] 3 NZLR 112 (HC)Has partially negative history or cases citing, but has not been reversed or overruled[Yellow]  at 115. 
and intention is not an element of this offence.6
| X |Footnote: 6
HSEA 1992, s 53. 
An employer's failure to comply with its duties may be even an inadvertent one.7
| X |Footnote: 7
Linework Ltd v Department of Labour [2001] 2 NZLR 639 (CA)Has Litigation History which is not known to be negative[Blue]  at [39]. 
 
[28]
An employer's duty to take all practicable steps under s 15 is not limited by another party holding the same duty.8
| X |Footnote: 8
This is expressed in s 2(2) of the HSEA 1992 and was expanded upon by the Court of Appeal in Central Cranes Ltd v Department of Labour, above n 3, at 702 as follows: 
“The learned Judge's concept of a ‘pyramid of relationships’, such that Central Cranes was removed from activities on site, was misplaced. If there is some step which it was practicable for the company to take the company had to take that step. It cannot distance itself from what is occurring on the work site in the sense suggested by the learned Judge simply because the employer is more directly related to and responsible for the employees carrying out the rigging work. Nor can it satisfy its obligation under s 18 merely by retaining a contractor who is competent. The question contemplated by the statute must be asked: Did Central Cranes take all practicable steps, as that term is defined in s 2, to ensure that Skytech's employees were not harmed in doing the work which that company was engaged to do? ”
An employer cannot completely relinquish its health and safety responsibilities to a third party.9
| X |Footnote: 9
This is expressed in s 2(2) of the HSEA 1992 and was expanded upon by the Court of Appeal in Central Cranes Ltd v Department of Labour, above n 3, at 702 as follows:As observed at 7 in Department of Labour v Anchor Products Ltd DC Te Awamutu CRN 8072004463, 18 February 1998, a case involving a failure to meet the s 6 duty: 
“It is not and cannot be an answer under this legislation to delegate a third party to attend to safety issues and then never check whether that third party has properly addressed and corrected those safety issues. The responsibility for the safety of this machine lay with the Defendant Company and it failed to properly undertake its statutory responsibilities in that regard. ”
In the context of this case this means that, regardless of the Diocese's potential liability, the question for determination remains: did Corrections take all practicable steps to ensure that no probation officers' actions or inactions harmed Mr Cave? 
[29]
By reason of s 6(1)(b) of the Crown Organisations (Criminal Liability) Act 2002, Corrections may be prosecuted for an offence under s 50 of the HSEA 1992. While Corrections may be ordered to pay reparation, compensation or costs, it cannot be sentenced to pay fines.10
| X |Footnote: 10
Crown Organisations (Criminal Liability) Act 2002, s 12 (as at 7 June 2014). 
 
Practicable steps 
[30]
The term “all practicable steps” is defined in s 2A of HSEA 1992 as: 
“(1)
In this Act, all practicable steps, in relation to achieving any result in any circumstances, means all steps to achieve the result that it is reasonably practicable to take in the circumstances, having regard to— 
(a)
the nature and severity of 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 of those means; and 
(e)
the availability and cost of each of those means. 
(2)
To avoid doubt, a person required by this Act to take all practicable steps is required to take those steps only in respect of circumstances that the person knows or ought reasonably to know about. ”
[31]
The classic definition of “reasonably practicable” is found in Edwards v National Coal Board per Asquith LJ:11
| X |Footnote: 11
[1949] 1 KB 704 at 712. 
 
‘Reasonably practicable’ is a narrower term than ‘physically possible’ and seems to me to imply that a computation must be made by the owner, in which the quantum of risk is placed on one scale and the sacrifice involved in the measures necessary for averting the risk (whether in money, time or trouble) is placed in the other; and that if it can be shown that there is a gross disproportion between them — the risk being insignificant in relation to the sacrifice — the defendants discharge the onus on them. ”
[32]
The factors listed in s 2A(1) of the HSEA 1992 guide the computation described by Asquith LJ, and are akin to the “risk” and “sacrifice” referred to in Edwards. When this computation is made “it should not lightly be held that to take a practicable precaution is unreasonable”.12
| X |Footnote: 12
Marshall v Gotham Co Ltd [1954] AC 360 at 373 (UKHL)Has Cases Citing which are not known to be negative[Green]  as cited in Department of Labour v Solid Timber Building Systems New Zealand HC Rotorua, AP464a/44/2003, 7 November 2003 at [29]. 
 
[33]
The test of what is reasonably practicable is objective.13
| X |Footnote: 13
Department of Labour v Solid Timber Building Systems New Zealand Ltd, above n 12, at [35]. 
It is not a question of whether the defendant actually foresaw the relevant circumstances, or whether it deemed the practicable steps submitted by the prosecutor to be reasonable, but whether it was objectively reasonable to predict the relevant circumstances and take those steps. In Department of Labour v Solid Timber Building Systems New Zealand, Baragwanath J commented:14
| X |Footnote: 14
At [35]. 
 
“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 an employer could reasonably have been expected to possess as to the nature of prospective harm … . ”
[34]
The s 2A assessment of whether a step was practicable is not, however, “a counsel of perfection by hindsight”.15
| X |Footnote: 15
Buchanans Foundry Ltd v Department of Labour, above n 5, at 119. 
While hindsight may provide a clearer picture of what occurred, it is not a proper basis for liability under ss 15 and 50. 
Turning specifically to the questions for determination 
Is WorkSafe required to identify and prove the occurrence of specific actions or inactions of Corrections' employees? 
[35]
There is dispute in this case as to whether WorkSafe must prove beyond reasonable doubt specific actions or inactions to which the practicable steps described in s 15 relate. WorkSafe contended that limiting the charge to employees' specific, individual failings would mean employers' most serious systemic failings would not breach s 15. For example, on this reading, an employer's ongoing failure to train or supervise employees would not breach s 15 because the risk of harm arises from the employees' general performance of their duties rather than specific conduct. The charge, in WorkSafe's view, is directed to the steps that were or were not taken by Corrections (the organisation as a whole) in order to address employees' conduct. Corrections challenged this construction, submitting that a systemic failure does not satisfy this element of ss 15 and 50, and that specific failings must be identified. 
[36]
The purpose of the s 15 duty is to encourage employers to identify proactively that their employees' conduct may harm other persons, and institute measures to eliminate or mitigate that possibility. An employer's failure, systemic or otherwise, to undertake that exercise is what engages s 50. An employer's failure to meet its s 15 duty may manifest in an accident, but this does not mean the prosecution is required to prove the specific employee actions or inactions that contributed to that accident. As was noted in Waimea,16
| X |Footnote: 16
WorkSafe New Zealand v Waimea Sawmillers Ltd [2015] NZDC 21082 at [36]; Waimea Sawmillers Ltd v WorkSafe New Zealand [2016] NZHC 915Has Litigation History which is not known to be negative[Blue] 
while harm or an event may be particularised in the charge, the focus of a HSEA 1992 prosecution is not on the “micro” (being the actions on the day of an accident) but the “macro”. This means that prosecution on the basis of systemic failure is one possible way of demonstrating that the s 15 duty was not met. 
[37]
Nevertheless, the s 15 duty's scope is determined by reference to employees' actions or inactions, and the harm that may occur if those actions are taken or omissions occur. The definition of “practicable steps” requires the prosecution to identify both the type of actions or inactions that it alleges the employer must take steps to prevent and the type of harm that could result if those actions or inactions are not prevented. Even in view of systemic failure, the prosecution will need at least to prove the type of conduct it alleges that the employer was obliged to take steps to prevent. 
What does “actions or inactions while at work” mean for the purpose of s 15 of the HSEA 1992? 
[38]
The s 15 duty relates to employees' actions or inactions “while at work”. Section 2(1) of the HSEA 1992 defines “at work” as: “in relation to any person, means present, for gain or reward, in the person's place of work”. “Place of work” is defined in the same section as: 
“a place (whether or not within or 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 ”
[39]
Section 2(3) of the HSEA 1992 relevantly reads: 
“To avoid doubt, a person is in a place of work whenever and wherever the person performs work including in a place that— 
(a)
the person moves through; or 
(b)
itself moves. ”
[Emphasis added.] 
[40]
Relying on Department of Labour v Berryman,17
| X |Footnote: 17
Department of Labour v Berryman [1996] DCR 121; (1996) 5 NZELC 98, 394.Has Cases Citing which are not known to be negative[Green]  
Corrections contended that the definition of “place of work” only extends to cover a person's usual, customary place of work at which they were present with some degree of frequency. That submission is erroneous because the Health and Safety in Employment Amendment Act 2002 amended s 2 to clarify the definition of “place of work” in the HSEA 1992. The definition allows any number of locations all to be regarded as a single employee's “place of work” and contains no qualification that depends on how frequently an employee is present at a particular location. 
Is the harm required to be proximate to the employees' place of work? 
[41]
WorkSafe submitted that s 15 obliges employers to take practicable steps to ensure no employee's action or inaction harms any person in any location. This means that the s 15 duty is not limited to preventing harm to persons at or near the employees' place of work. In support of this submission, WorkSafe referred to: 
a suggestion in the Brookers Employment Law commentary that s 15“seems wide enough to extend beyond the physical boundaries of the workplace”;18
| X |Footnote: 18
Christine Sanders (ed) Employment Law (online looseleaf ed, Brookers) at [HS15.01]. 
 
the specific inclusion of locations in the HSEA 1992's provisions where the location of harm is relevant to a duty's scope; and 
the HSEA 1992's long title which describes the HSEA 1992 as “An Act to reform the law relating to the health and safety of employees, and other people at work or affected by the work of other people”
[42]
To demonstrate the absurdity of liability being dependent on there being physical proximity between the actions and inactions, and the harm, WorkSafe referred to Clark v Dunning Thornton Consultants Ltd.19
| X |Footnote: 19
DC Wellington CRN 2085012862, 8 July 2005. 
In that case, a tourist was injured while using a Fly by Wire device. Dunning Thornton Consultants Ltd was prosecuted on the basis that one of its employees did not properly certify the Fly by Wire device. WorkSafe argued that liability in a case such as Clark could not sensibly depend on whether the employee certified the Fly by Wire device at the site on which it was operated or at a different location. An employer would be liable only in the former circumstances if s 15's duty depends on physical proximity. This, in WorkSafe's view, is an unjustified distinction which is inconsistent with the HSEA's purpose and scheme. 
[43]
WorkSafe argued foreseeability is instead the chief determinant of the s 15 duty's scope, being that the duty is limited to taking practicable steps “in respect of circumstances that the person knows or ought reasonably to know about”.20
| X |Footnote: 20
HSEA 1992, s 2A(2). 
 

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