WorkSafe New Zealand v Waste Management NZ Ltd [2021] NZDC 12388

Published 16 July 2021

Reserved judgment — judge-alone trial — failing to comply with health and safety duties — acting with reckless disregard to health and safety duties — exposing workers to risk of death or serious harm — hydrogen sulphide toxicity — Health and Safety at Work Act 2015, ss 47, 48, 160 & 161 — Criminal Procedure Act 2011, s 147 — WorkSafe New Zealand v Waste Management Ltd [2020] NZDC 24553 — Commerce Commission v Progressive Enterprises Ltd [2010] NZCA 374 — R v Harney [1987] 2 NZLR 576 — Cameron v R [2017] NZSC 89 — R v Piri [1987] NZLR 66 (CA) — Civil Aviation Authority v Sarginson [2019] NZDC 2565 — Sarginson v Civil Aviation Authority [2020] NZHC 3199. The defendant company faced two charges (in the alternative) under the Health and Safety at Work Act ("HSWA") for failing to comply with its health and safety duties thereby exposing workers to a risk of death or serious harm (s 48), and for acting with reckless disregard to its health and safety duties thereby exposing workers to a risk of death or serious harm (s 47). The defendant company pleaded guilty to the first charge and not guilty to the second charge. The defendant was a waste management company and the victim was employed as an operator, a role which involved, amongst other things, decanting hazardous waste. On the day of the incident in question, the victim had been instructed to process several 1000 litre containers of liquid by pouring them into a pit and processing them with other material. Mercury was mixed with hydrogen sulphide, causing a chemical reaction which released toxic gases. The victim inhaled the gas and died in hospital later that day. The test for recklessness contains a subjective element; that the defendant, here through its employee, recognised that there was a real possibility that the actions at issue would expose the workers to a risk of death or serious harm. The issues for determination by the Court in relation to the three particulars were therefore: did the relevant person engage in conduct that exposed workers to a risk of death or serious harm; if so, did the relevant person realise there was a real possibility that their conduct would expose workers to a risk of death or serious harm; if so, did the relevant person act as a reasonable person would have done in the circumstances? The three particulars stated by the prosecution were whether the defendant was reckless by knowing the risks involved with hazardous waste, holding mercury-containing sulphides at the site without undertaking a risk assessment; directing and/or permitting workers to process mercury waste-containing sulphides using other chemically reactive substances without having undertaken a risk assessment; directing and/or permitting workers to continue processing the mercury waste-containing sulphides with other chemically reactive substances in the pit knowing there was a real possibility that such conduct was exposing workers to potential harm as a result. The Judge considered the witness evidence and the states of mind of the relevant employees (whose states of mind can be attributed to the company) and similar cases, and concluded that the prosecution had not proven beyond a reasonable doubt that the employees possessed the requisite state of mind for the subjective element to be met. The Judge found the defendant not guilty of the charge under s 47. Having pleaded guilty to the charge under s 48, the defendant was remanded for sentence on that charge. The Judge noted that this was a difficult case as Parliament had extended criminal corporate liability to include employees, against whom recklessness must be found in order to succeed against the employer company. Judgment Date: 29 June 2021.