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Safeguard OSH Solutions - Thomson Reuters

Safeguard OSH Solutions - Thomson Reuters



OSH Tracker

Burrell Demolition Ltd v Department of Labour (HC, 14/05/03)

OSH Tracker

Defendant:
Burrell Demolition
Two convictions under s.18(1)(a) were successfully appealed by BURRELL DEMOLITION LTD.  The company had been fined $2500 on each count for failing to fit side screens to a pair of Halitrax loader vehicles being used for demolition work (SG 78). The appellant argued that, for the job in hand, the screens were unnecessary. The company had been convicted and discharged on a third count under s.26(1) for removing from site a vehicle that had been involved in a serious harm accident. (Auckland HC, 14 May.) 
Industry:
Construction
Sub-Industry:
Construction Trade Services
Risk:
Vehicle - mobile plant (eg forklift, platform)
Harm:
None
Penalty Amount:
$0.00
Reparation Amount:
$0.00
Appeared in Safeguard issue 82

Judgment Text

JUDGMENT OF SALMON J 
Salmon J
[1]
This is an appeal against conviction and sentence. The appellant pleaded not guilty to five charges brought under the Health and Safety in Employment Act 1992 arising out of events that occurred on the Auckland Post Office building site in March 2001. Two charges were dismissed. The appellant was found guilty of two charges of failing to take all practicable steps to ensure that an employee was not harmed while doing work and one charge of removing a thing relating to an incident in which a person was seriously harmed without authority to do so being given by an inspector. 
[2]
In respect of this latter charge, the appellant was convicted and discharged. In respect of the other two charges, the appellant was convicted and fined $2,500 on each charge and was ordered to pay Court and solicitors' costs on CRN1004067580. It is in respect of those two charges that this appeal is brought. 
[3]
As a preliminary matter, the appellant seeks corrections to the record in relation to the result of the proceedings. The two informations upon which the convictions and fines were imposed were CRN1004067582 and CRN1004067580. In fact CRN1004067582 has been mistakenly noted as “dismissed” when the record should read “convicted” and in its place CRN1004067583 has on it a mistaken record of a conviction when the record should read “dismissed”
[4]
The Crown acknowledges that these mistakes exist. Section 201 of the Summary Proceedings Act 1957 appears to give wide powers of amendment. Accordingly, I amend the record so that a conviction is shown as recorded on CRN1004067582 and a dismissal on CRN1004067583. 
Background 
[5]
The defendant company is a demolition contractor. It was awarded the contract to demolish the annex to the Auckland Central Post Office Building. On 3 March 2001 a Mr Dale Webster, while operating a Halitrax tracked skid steer machine inside the building was injured. An inspection was carried out by a Health and Safety inspector employed by the Occupational Safety and Health Service of the Department of Labour and that disclosed matters which the Department believed amounted to contraventions of the Act. Proceedings were ultimately issued in respect of Mr Webster's accident and additional matters. 
[6]
Mr Burrell, the owner of the appellant company, is a very experienced demolition contractor. He has been in the industry for some 40 years. He employed under contract a Mr Coleman, who is also very experienced in the demolition business. Mr Coleman had responsibility for health and safety matters on the site. 
[7]
It is accepted by the respondent that the accident in which Mr Webster was involved was not contributed to by any of the matters in respect of which convictions have been entered. His injuries were caused by his actions, which it was accepted, constituted a breach of basic safety rules in using machines of the kind he was operating. 
[8]
The prosecutions, against which the appeals have been lodged, arose because two Halitrax machines on the site were not equipped with side screens. The Judge concluded that in the absence of side screens there was a risk to an operator. That risk was that the operator might lean out the side of the machine and be injured if an uplifted hydraulic arm should descend unexpectedly. The District Court Judge had heard evidence of an accident of that sort occurring in relation to the operator of a different type of machine in quite different circumstances. That occasion involved the use of a machine in a kiwifruit orchard at Patumahoe. The operator's body was outside the driver's cage when the hydraulic arms descended and crushed him. The Judge concluded that potentially a similar hazard existed in the use of the Halitrax machine and that side screens should have been fitted. 
[9]
In fact, side screens were fitted after the accident, but the appellant maintains that they were not necessary and more importantly, that the failure to have them in place at the time of the inspection did not constitute an offence. 
[10]
The provision relied upon by the respondent is s 18(1) of the Health and Safety in Employment Act. That subsection provides: 
“(1)
Every principal shall take all practicable steps to ensure that- 
(a)
No employee of a contractor or subcontractor; and 
(b)
If an individual, no contractor or subcontractor,- 
is harmed while doing any work (other than residential work) that the contractor was engaged to do. ”
[11]
The phrase “all practicable steps” is defined in the Act as follows: 
‘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; and 
(e)
The availability and cost of each of those means. ”
[12]
The Judge noted that the focus must be on the actual work environment in which the machines were working and that there must be an identifiable form of harm which could be done to the employees if the posited steps were not taken. 
[13]
The prosecution's case was that the fitting of side screens was necessary for two reasons. First, to prevent the entry of material that might harm the operator entering the cabin, and second, to prevent operators from getting caught in the downward movement of hydraulic arms. The Judge concluded that it was not proved that there was any risk of objects entering the cabin while the machines were deployed doing the work they were required to do at the Central Post Office site. As earlier mentioned, he did conclude that there was a risk of severe harm if someone got caught in the arms of the machine and that such risk was not entirely speculative. He also concluded that there were steps which it was reasonably practicable to take. The appellant could have refused to take the machines (which were hired) until they were fitted with screens. 
[14]
In fact the subsequent fitting, it seems, did not involve a lengthy or expensive procedure. The Judge held that there was a practicable step which could have been taken and that was to desist from using the machines until they were fitted with the screens. 
The appellant's case 
[15]
The appellant submitted that the Judge erred in finding that without the side screens there was a serious or appreciable risk that the operators could become caught in the arms of the machines. He submitted that in the circumstances in which the machines were being used the risk was entirely speculative, that there was no evidence of harm being caused by the absence of side screens on the post office site or in any similar working environment and that there was insufficient admissible evidence to satisfy the Judge beyond reasonable doubt that there was a serious or appreciable risk of harm to the operators of the two Halitrax machines. Further, it was submitted on behalf of the appellant that the Judge erred in placing reliance on the accident at the kiwifruit farm and that there was insufficient detail of the circumstances surrounding that accident before the Court to enable any weight to be placed on the circumstances on that incident. 
[16]
Further, counsel submitted that the circumstances of that accident were so different from the situation in which the Halitrax machines were being used that no comparison could safely be made. Counsel then submitted that independent evidence established that the standard cab on the Halitrax machines gave the operators suitable protection for the tasks that were being undertaken in the conditions in which the machines were working and that the Judge had insufficient admissible evidence to enable him to be satisfied beyond reasonable doubt that the defendant had failed to take a practicable step to ensure that employees were not harmed. 
[17]
Reference was made at the hearing to approved codes of practice. Section 20(9) of the Act provides that: 
“20 Codes of practice 
(9)
A Court may, in determining whether or not a person charged with failing to comply with any provision of this Act has complied with the provision, have regard to any approved code of practice that- 
(a)
Was in force at the time of the alleged failure; and 
(b)
In the form in which it was then in force, related to matters of a kind to which the provision relates. ”
[18]
There were codes of practice which were arguably relevant to the operation being undertaken by the appellant. Those codes recommended the fitting of protective structures to prevent objects entering the cabin. It is important to recognise that the codes of practice did not place obligations on operators, they provided recommendations. 
[19]
The codes may be used as evidence of good practice or best practice or preferred work practice. Mr Neutze, for the appellant, referred to Central Cranes Ltd v Department of Labour [1997] ERNZ 520 (CA) where at page 530 the Court refused to endorse Occupational Health and Safety Service guidelines. It considered that the risk was that such guidelines might become inflexible in practice. The Court said: 
“The duty imposed upon principals under the Act is unequivocal, but the steps which are actually required will depend on the circumstances. And the circumstances will vary considerably. In some circumstances the steps required of a principal may be less than that indicated in the guidelines. In yet other cases what is required may be more stringent. Too great a precision in the guidelines may indeed defeat the objective of the new regime by providing overly prescriptive requirements. ”
[20]
Counsel acknowledged that the Judge correctly approached the matter by first identifying what, if any, hazards or potential harm was present, then if necessary, having regard to a code of practice, to see whether what was recommended to avoid the hazard or harm and then deciding whether the recommendation was a practicable step that could have been taken. Counsel pointed out that the only risk of harm which the Judge ultimately found was potentially present, that is to say, the risk of an operator being crushed under the hydraulic arms of the machine in the absence of side screens, was not a risk of harm identified in the code of practice. 
[21]
It follows, of course, from the decision of the Court of Appeal that the fact that that risk of harm is not identified in the codes of practice is not in any way conclusive of the question as to whether the potential for such harm exists. 
[22]
I accept the submission, however, that the fact that that harm is not identified is relevant to the issue of the “current state of knowledge” about that harm. 
[23]
On the other hand, a publication of the Occupational Safety and Health Service of the Department of Labour in December 1999 referred specifically to the Patumahoe accident and referred to the absence of side screens. It seems that this Bulletin was not put to the appellant's witnesses, so that there is no evidence as to whether they had seen it. It also needs to be said that in the Patumahoe case the operator had taken his canopy off and overridden all safety features. There was no suggestion of that in the present case. 
[24]
Counsel submitted that the Judge had misinterpreted the evidence relating to the Patumahoe accident and that the circumstances were so different that they could not be relied upon. However, the essential and undisputed similarity exists in the potential to lean outside the cab of the machine into the path of a descending hydraulic arm. Counsel emphasised that the Halitrax machines were fitted with seat belts, and that the Patumahoe accident was only possible because the operator was not wearing a seat belt. There was no evidence that the drivers of the Halitrax machines were not using their seat belts. There was no evidence that the operators put their heads outside the structural cabin or had any need to do so. In answer to a question in re-examination one prosecution witness said that you do not lean out of the machine. 
[25]
None of the operators or suppliers of the equipment considered them to be unsafe for use on the site, nor did the defendant's witnesses. There was no evidence that any of the witnesses knew of the Patumahoe accident and the circumstances of the accident were not put to the witnesses. There was evidence that there were about 20 Halitrax machines available in New Zealand and none had side screens fitted. 
[26]
Counsel noted that the machines on the post office job were operating on a level surface, unlike the Patumahoe machine and submitted that bearing in mind the definition of “all practicable steps” and the importance of current state of knowledge, it had not been established beyond reasonable doubt that the appellant should have insisted on the fitting of side screens. 
[27]
For the respondent, Mr Tantrum accepted that the only evidence of likely danger in the particular operation related to the Patumahoe incident. He accepted that the Judge was not entitled to rely on a subjective view that evidence was required. He acknowledged that there was no evidence tendered as to the current state of knowledge of the likelihood that harm would be suffered as a result of leaning out of the cabin. He submitted, however, that the Judge was entitled to have regard to the Patumahoe accident and that it could reasonably be inferred that members of the construction industry were familiar with the construction bulletin. 
[28]
I have concluded that there was insufficient evidence to establish the prosecution case that there was a risk of harm that operators of the Halitrax machines would be caught in the hydraulic arms in the absence of side screens. Importantly, there was no evidence that the operation of the machine in the location where it was situated could necessitate a person leaning out of the cab to the extent where they would be in danger from a descending hydraulic arm. Indeed, the possibility of this happening was expressly denied. Obviously, if someone did act in that way and the hydraulic arm descended, that person could be seriously injured or even killed. However, I conclude that the risk of that happening was speculative in terms of the evidence presented in this case. 
[29]
Mr Tantrum, for the Crown, referred to one passage of evidence which he submitted supported the existence of a risk. The prosecution called a Mr Ronnie McCabe. He is a principal of McCabe Sutton Ltd, the company which provided the appellant with the two Halitrax machines and their drivers. In his evidence he said that the grills which were fitted subsequent to the accident, made it harder to operate the machine. In explanation of that, he explained that there were shields fitted which obstructed rear vision and the screens prevented the driver from leaning just past the shield to look behind him. The reason for that is that the shields are fitted inside the steel structure of the frame of the machine. 
[30]
Similar evidence was given by a Mr Alvey, who was an operator of one of the Halitrax machines on the post office site. He said that the side screens restricted vision when reversing. He denied, however, that that required leaning out of the machine. In answer to that suggestion he answered: 
“No you don't lean out of it, but I can lean further out from what the cages allow me to. ”
And later he said that the screens prevented him from leaning out that extra 50 mm to see the back corner of his machine. 
[31]
There is nothing to suggest that “leaning out” to obtain vision when reversing presented any danger in relation to the hydraulic arms, nor was there any finding by the Judge that that was so. 
[32]
The Patumahoe incident in my view, does not assist. It was a different machine in different circumstances operated by a person who had overridden all safety precautions, including the removal of the cabin frame and the removal of the seat belt connection. It is of some relevance that none of the Halitrax machines available in New Zealand have side screens fitted. On the evidence in this case the installation of side screens was not a practicable step required to be taken to ensure that no employee was harmed doing the work that the contractor was engaged to do. In reaching this conclusion, I take into account the various considerations in the definition of the phrase, “all practicable steps”
[33]
The appeal is allowed and the convictions on CRN1004067582 and CRN1004067580 are vacated. 

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