WorkSafe New Zealand v CentrePort Limited [2019] NZDC 3155 and WorkSafe v CentrePort Limited [2019].

In early 2019, Tuohy DCJ issued a ruling finding that CentrePort Limited (“the Port”) had caused the death of a worker at the Port in January 2017.

This appears to be the first s.24(2) of the Sentencing Act 2011 causation hearing in the Health and Safety context, and it was undoubtedly the first under the Health and Safety at Work Act 2015 (“HSWA”).

Background

The Port had in early 2016, acquired the Empty Container Depot (“ECD”) (including its assets employees, policies and procedures) from another entity. While the Port, itself, had processes and procedures prohibiting the use of ladders for accessing and undertaking work, those procedures had not been implemented in the ECD. The Port in all other parts of its operation had strict rules regarding where and when ladders should be used, including being tied. In addition, the Port had audit requirements for checking ladders.

In November 2016, as a result of the Kaikoura earthquake, CentrePort decided to repurpose shipping containers utilising them to create walkways for use at the Port. The welding work that is undertaken on the shipping containers required workers to access the roofs of containers with ladders and to work at height.

The incident

On the day of the incident, in January 2017, two workers were working at separate ends of a shipping container and were accessing the roof with untied ladders and no fall protection in place. One of the workers was last seen welding on top of a container where there was no edge or fall protection in place. The other worker heard a sound and turned to find that the worker was found lying on the ground with his legs over the ladder he had been using and was in a serious condition. However, there was no witness to the incident itself. When the ambulance arrived, the worker was coming in and out of consciousness and was admitted to hospital where he subsequently died a couple of days later.

The Coroner did not order an autopsy, and the family, in any case, did not want one to be undertaken, having concluded that the worker had died from injuries caused by the work-related incident.

WorkSafe’s and the Port’s own investigation revealed:

  • Most of the ladders in the ECD were ill repair, including the one used by the deceased. Further, there was no auditing programme in the ECD to ensure that ladders were maintained and kept in good repair;
  • Ladders were being used in the ECD for accessing containers and these ladders were not tied or secured against movement;
  • There had been no working at height training implemented in the ECD;
  • The Port had recognised the hazards associated with working at height in general but not within the ECD itself.

WorkSafe filed charges and alleged a breach of section 36(1)(a) of HSWA and said that it was reasonably practicable for the Port to have implemented a safe system of work for undertaking container repairs.

Guilty plea

In 2018, the Port pleaded guilty to a charge under s. 36(1)(a) of the Health and Safety at Work Act 2015 (“HSWA”) of failing to take all practical actions to ensure the health and safety of its workers. Causation is not an element of the offence under s.31(1)(a) of HSWA.

The defendant agreed to a Summary of Facts with the prosecutor, but then subsequently advised WorkSafe that it did not accept that its actions were the cause of the death of the worker.

At a preliminary hearing, Hastings DCJ determined that as the matter was material to sentencing (particularly in respect of an assessment of culpability and to determine whether reparation was payable), if an agreement could not be received between the prosecutor and the defendant the matter would need to be determined at a disputed fact hearing. No agreement was able to be reached, and the matter was set down for a disputed fact hearing.

Disputed Fact Hearing

A two-day disputed fact hearing was presided over by Tuohy DCJ, in the Wellington District Court where expert evidence was heard from engineers, working at height experts, an occupational physician and two forensic pathologists. In addition, the other worker who had been working on the same container with the deceased and found him positioned over the ladder was called.

His Honour considered that causation, in the Health and Safety context, was an “aggravating fact” and that the prosecutor had the burden of proving beyond a reasonable doubt that the defendant had caused the death of the Port’s worker.

WorkSafe argued it must prove that an act or omission of the defendant. In this case, its failure to develop and implement a safe system for undertaking container roof repairs was a substantial and operative cause of the worker’s death.

The Port, on the other hand, challenged WorkSafe’s position. Firstly arguing that there was at least a real possibility that the worker fell from a standing position, and secondly that even if the worker fell from height, it was impossible to prove the cause of that fall (this submission was made with reference to alleged medical misadventure). Finally, the defendant argued that it was not possible to prove that the worker’s death would have been prevented if the Port had implemented a safe system of work for undertaking container repairs.

The court noted that WorkSafe’s theory of the case required a conventional approach to causation where it is alleged that “the defendant’s act or omission has set in train a linear chain of events which in the end, sometimes in an unexpected way, results in the death of the deceased”[1].

Tuohy DCJ stated that the operative cause of death must be real and substantial, though it does not need to be the only cause of death[2]. His Honour, also noted, with reference to R v McKinnon [1980] 2 NZLR 31, 37, that an intervening act of medical negligence will not, in of itself, break the chain of causation “unless it is of such a nature that it can be seen as the sole cause of death”.

After hearing the evidence, Tuohy DCJ was satisfied beyond a reasonable doubt:

  1. The worker fell from height, based on the interval between the other worker hearing the ladder hit the floor of the container and seeing the injured worker on the ground. Also, the extent of the head injury suffered was commensurate with a fall from height
  2. The worker and the ladder fell together with him on top of it at the time, and it was likely that he had one or both his feet on the ladder at the beginning of the fall. His Honour concluded that as the ladder was not secured against movement, it could have slid sideways at the top of the stiles, or backwards at the bottom and that this contributed to the worker’s fall from it
  3. The fall had occurred while descending the ladder as the other worker had seen the worker who fell on top of the container prior to the fall. Further, he could not have descended and ascended without the other worker noticing this. The dynamics of the fall were consistent also with the positioning of the dent in the ladder
  4. The head injury suffered was so severe that without medical treatment being provided, the worker would have died. His Honour concluded that the head injury was the medical and operative cause of the worker’s death

The impact of the conduct of the defendant on Sentencing

In June 2019, CentrePort was sentenced by Hobbs DCJ. The maximum penalty for a s.36(1)(a) charge is a fine not exceeding $1.5m. His Honour considered that the circumstances of the case, the risk of falling in such circumstances was a “relatively obvious and foreseeable risk” which was ultimately realised and resulted in the death of the Port’s worker. His Honour adopted a starting point of $700,000.

WorkSafe sought 5% uplift, which was accepted by the court, for a previous conviction relating to a 2012 fatality at the Port. Accordingly, the starting point of the fine was increased to $735,000.

The early guilty plea discount (usually 25% if entered at the earliest stage in the proceedings) was reduced to 10%. The Court agreed with the prosecutor that the value of the early guilty was limited due to the contention that the Port, while agreeing that it had breached the law and had failed to take all reasonably practicable actions, had not accepted causation for the worker’s death. Hobbs DCJ observed while acknowledging the defendant’s right to a disputed fact hearing:

[33] In my view, the fact that there was a disputed facts hearing must diminish the credit available for a guilty plea. I do not suggest there was no basis for such a hearing, nor do I suggest that it was undertaken for an improper purpose or to unnecessarily prolong the proceedings. I must acknowledge a party’s right to avail itself of the available procedures, and to pursue its position or theory. However, it seems to me that often the most obvious answer is the right answer, and that proved to be the case in this case.

After the available reductions for the early guilty plea, co-operation and reparation the fine was reduced to $506,048.

While CentrePort had made reparation payments before sentencing totalling $124,026.85, the court, however, considered that it was appropriate to make further reparation awards totalling $150,925.23 to the deceased’s family.

In addition, WorkSafe was awarded 66% of its expert costs and legal costs totalling $36,425.81 (predominantly arising incurred as a result of the defendant’s unsuccessful disputed fact hearing). Accordingly, the total financial penalty imposed by the court with respect to CentrePort’s offending was $798,428.89.

For More Information

If you would like more information about the matters raised in this article, please get in touch with our health and safety expert, DeAnne Brabant. Call 04 472 0020 to arrange a confidential consultation with our highly-skilled team.

Morrison Kent Lawyers

 

[1] R v Little (HC, Christchurch, T17/01, 12 June 2001, William Young J) at [99].

[2] R v McKinnon [1980] 2 NZLR 31,37; R v Cheshire [1991] 1 WLR 844 at 851-52.

Beyond Reasonable Doubt in Health and Safety - DeAnne Brabant