Burrell Demolition Limited v Department of Labour.

This case was an appeal from two convictions made by the Department of Labour (DoL) against BDL. BDL 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 worker was injured while operating a Halifax tracked skid steer machine inside the building. An inspection was made by OSH and charges were laid against BDL. Proceedings were ultimately issued in respect of the accident.

This appeal concerns 2 charges of failing to take all practicable steps to ensure that an employee was not harmed while doing work. BDL was found guilty of these two charges in the District Court and fined $2,500 for each charge.

The crux of the appeal came down to the fact that the two Halitrax machines on the site were not equipped with side screens. The District Court Judge (DCJ) had concluded that in the absence of side screens, there was a risk to an operator. The risk being that if an operator lent out the side of the machine he would be injured. The DCJ had held that there was a practicable step which could have been taken to desist from using the machines until they were fitted with the screens.

On appeal it was submitted for BDL that the DCJ had erred in finding that without side screens there was serious or appreciable risk that the operators could become caught in the arms of the machines. BDL submitted that in the circumstances that risk was entirely speculative. 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. It was also submitted that the DCJ’s erred in making reliance on an accident that occurred at a kiwifruit farm with similar machinery, which was much different from the fact situation in this case.

The High Court Judge (HCJ) made reference to the codes of practice. He noted that these codes recommended the fitting of protective structures to prevent objects entering the cabin. He pointed out however that in fact these codes did not place obligations on operators, just recommendations.

The HCJ placed a lot of weight on the finding that the only risk of harm which the DCJ ultimately identified (namely the operator being crushed by the hydraulic arms of the machine), was not a risk of harm identified in the code of practice. At paragraph 22 he stated:

“I accept the submission, however, that the fact that harm is not identified is relevant to the issue of the ‘current state of knowledge’ about that harm.”

In coming to his decision on the appeal the HCJ had to consider the following evidence:

There had been an OSH publication of the kiwifruit farm incident.

There was no evidence that the drivers were not using seatbelts.

There was no evidence that the operators put their heads outside the structural cabin.

None of the operators or suppliers of the equipment considered them to be unsafe.

There was no evidence that any witnesses knew of the kiwifruit farm incident.

There was evidence that out of 20 Halitrax machines available in NZ, none had side screens fitted.

The machines were operating on a level surface unlike in the kiwifruit farm incident.

The HCJ concluded therefore, that there was insufficient evidence to establish the prosecution case that there was a risk of harm that operators of the machines would be caught up in the hydraulic arms in the absence of side screens. Importantly there was no evidence to the effect that the operation of the machine in the location would necessiate a person leaning out of the cab to the extent where they would be in danger from a descending hydraulic arm. The possibility of that happening was expressly denied.

The HCJ allowed the appeal and vacated the two convictions based on the charges under s18(1) of the Health and Safety in Employment Act 1992.

I think an important premise to take from this case is the fact that risk of harm will need to be identified and known to a potentially offending company, for it to be held liable for failing to take all practicable steps to avoid injury to its employee.