WorkSafe New Zealand v Waste Management NZ Limited [2021] NZHC 3444

There are few decisions in New Zealand which have looked at what conduct will amount to recklessness in the context of the Health and Safety at Work Act 2015 (the Act). This is why the recent High Court decision, declining WorkSafe’s application for leave to appeal the District Court’s decision, is so important.

Background

In August 2017 during a project to decommission a power substation, Mr Gideon, an employee of Waste Management, died from hydrogen sulphide poisoning because of a misunderstanding as to the type of waste being treated.

WorkSafe laid two charges against Waste Management: one charge was pursuant to section 48 of the Act for failing to comply with duty that exposes an individual to risk of death, serious injury or serious illness.

The second charge was pursuant to section 47 of the Act and alleged that the defendant was reckless as to the risk of death, serious injury or serious illness. It asserted that through the acts of Waste Management’s employees on four separate occasions:

The site manager did not recognise the contents of the waste when it was received.
The site chemist left the waste in containers for six months without checking their contents.
The yard supervisor arranged for workers to start processing the waste in a pit.
Despite alarms being activated, the yard supervisor arranged for workers to continue to process the waste.

Waste Management accepted liability under section 48 but disputed the section 47 charge.

The District Court held that WorkSafe had failed to prove Waste Management was reckless. WorkSafe sought leave to appeal on the basis that the District Court erred in its analysis and application of recklessness to the facts. It contended that the District Court:

wrongly considered that recklessness required appreciation of the specific way the defendant’s conduct might give rise to the prohibited risk.
wrongly rejected WorkSafe’s argument that a person who has taken precautions against a risk can only negate that appreciation of the risk by believing the risk is eliminated.
wrongly conflated the subjective and objective limbs by not recognising a difference between appreciation of a risk of harm, and appreciation conduct might cause harm.

High Court decision

The High Court began its analysis with reference to the traditional approach to recklessness, which is described by the Supreme Court in Cameron v R [2017] NZSC 89, as follows:

a recognition that there was a real possibility that one’s actions would bring about the proscribed result; and
having regard to that risk, those actions were unreasonable.

The High Court noted that subjective recklessness is about knowingly doing things that you realise are likely to cause a prohibited outcome. Further, it is the knowledge that your conduct may cause the harm that provides the necessary level of criminal fault.

WorkSafe’s Approach

WorkSafe’s approach was that the knowledge element of recklessness need not be found with regards to the specific facts relevant to the matter, but in broad notions of knowing that the business undertaking or activity, such as processing waste, could be dangerous.

This approach was reflected in the particulars upon which WorkSafe relied to make out the section 47 charge. The High Court was critical of WorkSafe’s particulars as lacking focus, as the particulars seemed more relevant to the section 48 charge. WorkSafe also failed to identify the person said to have foreseen the risk, which the High Court considered to be the key particular for such a charge.

The evidence

Further, the High Court was also critical of the evidence WorkSafe had called at trial, an issue that was also raised by the trial Judge. WorkSafe’s evidence was largely from witnesses who were employees of Waste Management. This of course meant that to succeed against Waste Management, WorkSafe had to show that one or more of its own witnesses were reckless and then attribute their conduct and state of mind to Waste Management. However, none of the employees ever admitted to having reckless knowledge. All of them had stated prior to the trial that they thought they were acting safely and had no appreciation of the risk of serious harm or death.

Both Courts were troubled by this. The High Court specifically noted that the evidence led from one of WorkSafe’s witness, Mr Abrahams, the yard supervisor who undertook the work with Mr Gideon, was that he did not realise that they were doing anything to put Mr Gideon at risk. Mr Abrahams and Mr Gideon were friends outside of the workplace and he gave evidence he would never have done anything to put Mr Gideon at risk.

The High Court stated:

It is very difficult to understand how the prosecution intended to discharge its burden of proving recklessness beyond reasonable doubt when it led this evidence from the person said to have been reckless. The prosecution task is made more difficult by the objective context which discloses no incentive for Mr Abrahams to consciously run a risk of causing any harm to his friend and workmate. For these reasons I do not consider the prosecution could ever have succeeded, a matter relevant to whether leave to appeal is granted.

The High Court’s conclusion

Considering WorkSafe’s own witnesses’ evidence the Court concluded that there had been no error identified in the District Court’s findings as to the elements of subjective recklessness. WorkSafe’s appeal challenged only findings of fact, and the findings of fact that needed to be overturned concerned WorkSafe’s own evidence. The application for leave to appeal was declined.

Comment (Brad Alcorn)

This decision rightly rejects any suggestion that the approach to recklessness should be based upon a general awareness of the dangers associated with a particular business or activity, as opposed to the subjective knowledge of an individual at the time.

It also provides a sage lesson for lawyers as to the importance of understanding the theory of their case and whether evidence exists to support that theory. It goes without saying that if a party needs to establish reckless knowledge on the part of a particular person, calling that person as a witness will create an opportunity to explain that he or she had no comprehension of the danger. This will do nothing but undermine the case.

Further, the fact that several Waste Management employees were involved as witnesses meant that each employee required separate legal representation. Statutory liability policies will generally include employees within their definition of “insured”. Quite how far indemnity extends for those employees’ legal costs depends on the specific wording of the applicable policy, the facts of the case, and the attitude of the insurer.

Finally, indemnity responses when dealing with reckless conduct become complicated. Often the policy wording will exclude defence costs where deliberate or reckless conduct is alleged, unless the insured is acquitted. Nevertheless, it may be prudent for an insurer to continue to meet the defence costs and maintain control of the defence itself (on a reserved rights basis). Similarly, continuing to cover the costs of employees’ defence costs may be prudent, particularly where they might otherwise struggle to afford legal representation, as it is a way of ensuring the best defence is presented, to the ultimate benefit of insureds and insurer.

Resources

Health & Safety prosecution: when will a defendant be ‘reckless’?

Fee Langstone