Department of Labour v Deon Riwhi Williams
| Jurisdiction | New Zealand |
| Judge | Judge Gt Winter |
| Judgment Date | 10 February 2011 |
| Court | District Court |
| Docket Number | CRN 09092506443 |
| Date | 10 February 2011 |
CRN 09092506443
IN THE DISTRICT COURT AT MANUKAU
Defendant charged with failing to take all practicable steps as an employee to ensure the safety of other employees pursuant to s19 Health and Safety in Employment Act 1992 (duties of employees) — defendant drove a truck which skidded on narrow wet track and crashed into house other employees working under — trace amounts of methamphetamine in defendant's system — whether there was a causative link between methamphetamine use and failure to take all practicable steps — whether defendant should have foreseen consequences of methamphetamine use.
DECISION OF Judge Gt Winter
The 26 June 2009 was an important day for the Manurewa Marae and its trustee Tame Wiremu. Mr Wiremu and his young nephew the defendant, Deon Williams worked that day to prepare the grounds around a relocated house, the proposed home for a long awaited medical centre.
Waepeke Ruihana Tupaea, Marsh Terahi Peihopa, Jamie Lee Jeffrey and Peter Francis Tarrant were about and underneath the relocated house while Mr Wiremu and his nephew were shifting soil so it could be used for landscaping.
Mr Wiremu was operating a digger and loading a rubber tracked dump truck driven by his nephew. The 12 tonne dump truck had been hired the previous week. Described as a specialised piece of plant it required the use of both hand levers and a joystick to control its direction and movement.
Mr Wiremu had chosen the narrow path to be used by the dump truck. 1 At its narrowest point there was approximately 4.5 metres between the 1.6 metre high vertical cut edge above the house and the outer boundary of the route which was formed by some trees. The slope of the path as it passed the house was a significant 15.5 degrees. Taking into account the width of the machine this meant that the maximum clearance the dump truck had along this path was only 1.86 metres. 2
Deon Williams continued to use this path and had completed about 12 trips before the weather over the Manukau Harbour changed for the worse. At about 2:00 pm Mr Wiremu decided because of the deteriorating weather conditions that he and his young nephew would finish for the day after Deon emptied one last load from his dump truck.
The defendant started driving his heavily laden dump truck along the narrow path towards the rear of the house. It was by then raining heavily.
As the defendant was driving near the house on this wet incline, the dump truck lost traction, skidded down the slope on the wet soil and crashed into the side of the house. The house started to slowly fall away towards the sea and eventually collapsed to the ground from a height of 1.6 metres.
Waepeke Ruihana Tupaea and Marsh Terahi Peihopa were working under the house when it collapsed and they were killed. Jamie Lee Jeffrey and Peter Francis Tarrant who were working about the house at the time were badly injured.
Approximately 31/2 hours after the incident the defendant volunteered a sample of his blood. An analysis of that sample revealed trace levels of methamphetamine at 0.05 mg per litre of blood. The defendant gave that blood sample to an experienced medical practitioner and police doctor Lynnette Mary Ashby. Doctor Ashby has been practicing medicine for 16 years and counts among her formal qualifications a post-graduate diploma of community emergency medicine.
Doctor Ashby could smell no alcohol or solvents on the defendant. Deon Williams presented with a Glasgow Coma score of 15/15. His blood pressure was normal. His mini mental state examination was executed well. His neurological examination was normal. In particular all coordination tests were normal. He had no signs of physical injuries. The doctor concluded that Deon Williams was completely unaffected by drugs or alcohol that would interfere with his ability to be in control of a motored vehicle or machine. It was the police doctor's opinion that Deon Williams presented to her as a normal functioning person unimpaired by drugs or alcohol.
I accept Dr Ashby's opinion. It is consistent with the evidence of the defendant's uncle 3 that at work Deon did not look to be under the influence of any sort of drugs or alcohol. It is also consistent with the defendant's unremarkable driving of this tracked dump truck earlier that day.
It is this tragedy, the deaths of Mr Tupaea and Mr Peihopa and the serious injuries to Mr Jeffrey and Mr Tarrant that bring Deon Williams to court charged with one offence under s 19(b) of the Health and Safety in Employment Act 1992 (“the Act”). It is alleged he was an employee who failed to take all practicable steps to ensure that his actions while at work did not cause harm to others.
The Act came into force on 1 April 1993 and reformed the law relating to Health and Safety of employees and other people at work. In relation to the proper approach to the Act the Court of Appeal in Central Cranes Ltd v Department of Labour said: 4
It is clear that the Act adopts a preventative approach to maintaining and promoting health and safety in the workplace. Its principal object is to provide for the prevention of harm … The Act does not then adopt a prescriptive approach to the duties of those made responsible for safety in the workplace. It provides a comprehensive set of guidelines but leaves detail of acceptable practices to be worked out and implemented by regulations and codes of practice within the various industries.
Mr Wiremu's company, Wiremu Asphalt Contractors Limited employed the defendant. The company was prosecuted under the Act and convicted upon a guilty plea. It was ordered to pay $22,100 in reparation. The prosecution of an employer does not in any way diminish or affect the responsibility of employees to keep a workplace safe and I lay that circumstance to one side.
Section 19 of the Act creates a statutory duty on every employee to take all practicable steps to ensure their safety while at work. All employees must ensure that no action or inaction of theirs while at work causes harm to any person. Proof of defendant intention is not necessary.
The phrase is defined in s 2A of the Act as:
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(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:
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(a) The nature and severity of the harm that may be suffered if the result is not achieved; and
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(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
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(c) The current state of knowledge about harm of that nature; and
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(d) The current state of knowledge about the means available to achieve that result, and about the likely efficacy of each; and
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(e) The availability and cost of each of those means.
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(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
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[Emphasis added]
The question of what is practicable is a matter of fact and degree in each particular case 5 but it is not a counsel of hindsight and perfection. 6 The question of
The six elements of the s 19(b) charge that the informant needs to establish beyond reasonable doubt are that:
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a) The defendant;
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b) Was an employee;
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c) Who failed to take all practicable steps;
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d) To ensure that his action or inaction;
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e) While at work;
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f) Did not harm another person.
Parts (a), (b), (d), (e) and (f) of the required proof are resolved by the agreed and undisputed evidence presented at the hearing. This case pivots around whether the defendant failed to take all practicable steps to ensure in driving the dump truck at work he did not harm another person.
Written submissions were filed.
Despite the rather obvious course of pursuing this strict liability allegation based upon the risk Deon Williams took in driving his last load along a narrow track recently deluged with rain, the informant accepted a more onerous task.
The informant's case is that the defendant failed to take the practicable step of not operating the tracked dump truck after consuming methamphetamine. The test is objective. It was not up to the defendant to subjectively decide whether he was capable or confident to operate the tracked dump truck. The informant does not need to prove the defendant's consumption of methamphetamine contributed to the accident or that the defendant was in any way impaired before the accident. The informant submits that it only needs to prove that consuming methamphetamine prior to operating the tracked dump truck could have led to harm.
As the informant opened their case and led evidence upon this agreed basis it would therefore be prejudicial to the defence for the Court to find the case against the defendant proved in some other way such as by a failure to take the practicable step of not transporting the last load of soil across the slippery slope. In fairness to the defence I then confine this judgment to the single issue pursued by the prosecution. 7
Written submissions were filed.
The defendant submits a preliminary point that the information is defective in that there should have been separate informations laid for each of the four victims of the incident. It is said the remedy for...
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