LINEWORK LIMITED v DEPARTMENT OF LABOUR [2001] NZCA 104 (9 April 2001)

IN THE court of appeal of new zealand

ca138/00

	between	Linework limited
		Appellant

	and	department of labour
		Respondent

Hearing:	13 March 2001
Coram:	Richardson P Thomas J Blanchard J Tipping J McGrath J
Appearances:	J B M Smith and P S J Withnall for Appellant J C Pike and G E Mason for Respondent
Judgment:	9 April 2001

judgments of the court

Judgments
	Para Nos
Richardson P, Thomas J, Blanchard J and McGrath J Tipping J	[1] - [41] [42] - [49]

RICHARDSON P, THOMAS, BLANCHARD AND McGRATH JJ

(DELIVERED BY BLANCHARD J)

[1] By leave of the High Court under s144 of the Summary Proceedings Act 1957, Linework Ltd appeals against the dismissal in that Court of its appeal against conviction in the District Court at Wellington on 24 December 1998.Linework was convicted of a charge under ss6 and 50(a) of the Health and Safety in Employment Act 1992 (the Act) that, being an employer, it failed to take all practical steps to ensure that its employee, Mr Thomson, was not exposed to a hazard, namely an electric shock from overhead exposed live-wire voltage lines, arising out of the arrangement and organisation of processes involved in the removal of a cable at the employee's place of work.

[2] Linework is a company which engages in the construction and maintenance of electricity distribution networks in the lower North Island.On 30 January 1997 a Linework gang under the direction of a foreman, Mr Mazur, was engaged in installing a power cable in Valley Road, Paraparaumu.It is no longer in dispute that the site where this was being done constituted a place of work.A cable which had been disconnected a week earlier was hanging over the lower cross-arm of a power pole on which the gang had been working.Early in the afternoon, Linework's quality manager, Mr Cummack, suggested to Mr Mazur that this cable should be removed if the gang had time to do so.After Mr Cummack had left the site, Mr Mazur asked Mr Thomson to undertake that task.What then occurred was described by Wild J in the High Court as follows:

The end of the cable was looped over the cross arm on a power pole with its exposed end hanging down about a metre or so.Messrs Mazur and Thomson agreed that the latter would pitch his ladder against the pole and then carefully manhandle the cable over the cross arm and lower it down.Mr Thomson had taken down cables in this sort of position before.He noted two potential dangers: the tail of the faulty cable had not been cut off and the replacement cable did not have covered ends where its three exposed leads were connected above the cross arm.The method of removal proposed was a usual one, at least with a rope tied to the end of the faulty cable being removed.Mr Mazur warned Mr Thomson two or three times to be careful of the live connections above the cross arm where he would be working.

Mr Thomson pitched and climbed his ladder, secured his safety belt around the pole and checked that the 400 volt lines on the lower cross arm were fully insulated.He had his heavy safety gloves tucked inside his coveralls but, for some reason, did not put them on before grasping the faulty cable and beginning to ease it back toward him over the cross arm.Mr Mazur, who was observing the work from a position about 10 metres away, at that point for no particular reason looked away to see what his two other employees were doing.He then heard a puff like noise and looked back to see Mr Thomson slumped in his safety belt.Owing to Mr Thomson's loss of short term memory and the fact that Mr Mazur was not looking at the critical time, it is not known exactly what happened.However, the tail of the faulty cable obviously either swung up or back and made contact with one of the live 11,000 volt lines at the exposed connections.Mr Thomson received a severe electric shock, lost his short term memory, and received burns resulting in a loss of skin and of a large piece of muscle.He was in hospital for 7 days and underwent a series of skin grafts. He returned to work in April 1997 on light duties for much reduced hours, and was able to resume normal working hours in June 1997.

The Act

[3] The principal object of the Act is to provide for the prevention of harm to employees at work (s5(1)).To attain this object, the Act prescribes and imposes on employers and others duties in relation to prevention of harm to employees (s5(2)(b)).The detail by which this is done and something of the legislative history is set out in the judgment of this Court in Central Cranes Ltd v Department of Labour [1997] 3 NZLR 694.It is unnecessary to repeat it.

[4] Section 6 of the Act is as follows:

6Employers to ensure safety of employees

Every employer shall take all practicable steps to ensure the safety of employees while at work; and in particular shall take all practicable steps to--

(a) Provide and maintain for employees a safe working environment; and

(b) Provide and maintain for employees while they are at work facilities for their safety and health; and

(c) Ensure that plant used by any employee at work is so arranged, designed, made, and maintained that it is safe for the employee to use; and

(d) Ensure that while at work employees are not exposed to hazards arising out of the arrangement, disposal, manipulation, organisation, processing, storage, transport, working, or use of things--

(i) In their place of work; or

(ii) Near their place of work and under the employer's control; and

(e) Develop procedures for dealing with emergencies that may arise while employees are at work.

[5] "All practical steps" is defined in s2(1):

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--

(a)The nature and severity of the harm that may be suffered if the result is not achieved; and

(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

(c)The current state of knowledge about harm of that nature; and

(d)The current state of knowledge about the means available to achieve the result, and about the likely efficacy of each; and

(e)The availability and cost of each of those means:

[6] By virtue of s50(1)(a), an employer who fails to comply with s6 commits an offence punishable by a fine not exceeding $50,000 if the failure caused any person serious harm and a fine not exceeding $25,000 in any other case. Section 53 provides:

53Strict liability

In any prosecution for an offence against section 50 of this Act, it is not necessary to prove that the defendant--

(a)Intended to take the action alleged to constitute the offence; or (as the case may be)

(b)Intended not to take the action, the failure or refusal to take which is alleged to constitute the offence.

[7] Also relevant is s2(2)(c):

A duty imposed by this Act on any person is not diminished or affected by the fact that it is also imposed on 1 or more other persons, whether in the same capacity or in different capacities.

The decisions below

[8] In the District Court, counsel for the Department of Labour argued that the risk was foreseeable and could have been avoided.The 11kv lines should have been deadened.If the wires were left live, the tails of the redundant cable should have been cut so that it could no longer reach them, or, if they were not cut, secured by a rope from the ground and the cable earthed.There should also have been a safety observer to monitor and discuss every step with Mr Thomson.

[9] Keane DCJ said that the issue was whether the acts or omissions of the foreman, Mr Mazur, were to be regarded as those of Linework.The Judge instructed himself by reference to the following passage from the judgment of Lord Hoffman delivering the advice of the Judicial Committee in Meridian Global Funds Management Asia Ltd v Securities Commission [1995] 3 NZLR 7, 12:

In such a case, the Court must fashion a special rule of attribution for the particular substantive rule. This is always a matter of interpretation: given that it was intended to apply to a company, how was it intended to apply? Whose act (or knowledge, or state of mind) was for this purpose intended to count as the act etc of the company? One finds the answer to this question by applying the usual canons of interpretation, taking into account the language of the rule (if it is a statute) and its content and policy.

[10] Keane DCJ had no hesitation in concluding that the duty imposed on Linework as an employer by s6 reached right to the work site and could not be passed over to a responsible employee like Mr Mazur:

Whatever the responsible employee, here Mr Mazur, did or did not do becomes something for which it is answerable as its own act or omission; and that regardless of whether the injured employee, here Mr Thomson, contributes to the accident.

[11] The District Court Judge accepted that Linework regarded the safety of employees as a high priority and had in place training programmes and work systems to safeguard them in the wide range of circumstances in which they worked.It was in no sense a negligent employer.Its training programme was adequate, although the Judge was of the view that it had not brought home to employees the importance of the industry's safety rules.

[12] The Judge accepted the conclusion of a registered engineer called for the Department of Labour that the accident was the result of a systemic failure to adhere to safe practices at the site.The job was unplanned for, being done after the main work of the day at Mr Cummack's suggestion.No attempt was made to eliminate risk by deadening the overhead wires.No attempt was made to preclude any contact between them and the redundant cable, either by cutting off its tails or tying them.No attempt was made to earth the cables so that any electrical flow would be less likely to cause injury.Further, no need was seen for a safety observer.Mr Mazur watched briefly but had turned away before the accident happened:

As a result of the failure to take the earlier precautionary steps to exclude or minimise risk Mr Thomson was asked to work in a state of real risk, which a safety observer might not have reduced.But at the very least a safety observer might have reminded Mr Thomson to put on his gloves, and that would certainly have reduced the injury which he suffered.

[13] The District Court Judge therefore held Linework answerable for what he found to be breaches of s6.

[14] In the High Court, Wild J considered that Judge Keane had been correct, as a matter of interpreting and applying the Act to the circumstances of the case, in holding Linework liable for the acts and omissions of its foreman.He agreed with a submission from Mr Pike, for the Department, that it would defeat the object of the Act if Linework, as an employer, could exculpate itself from liability for failing to provide a safe environment for Mr Thomson at his place of work by pointing to the omissions of Mr Mazur "who was plainly engaged by Linework in a supervisory capacity".Having set up such a system of supervision, Linework was equally as culpable for a failure at the work site as any natural employer operating through a site supervisor.

[15] The High Court Judge did, however, hold that certain matters referred to by the Judge should be put to one side.There was no evidential basis for a finding that the failure to deaden the overhead lines was a breach of the Act. In addition, Linework's failure to bring home to its employees the importance of the industry's safety rules could be relevant only in the event of a prosecution under s13, which relates to training and supervision.It was not relevant to a charge under s6.

Leave to appeal

[16] Leave to appeal was granted in respect of the following questions of law:

(a) If a company has, on the evidence, designed and put into effect a safety system which, if implemented at all requisite levels, complied with the Health and Safety in Employment Act 1992, can it be convicted of failing to take all practicable steps under that Act to ensure safety at work where it is proved that an employee at a place of work where injury has occurred could have taken practicable steps to prevent that injury occurring?

(b) Were the acts or omissions of the appellant's employee, Mr Mazur, on the evidence, able to be attributed to the appellant?

[17] Mr Smith, for the appellant, told the Court, however, that it was only the second question to which an answer was sought.It was accepted that the first question, formulated on behalf of the Department of Labour, was too generalised.An answer could be given in relation to the application of s6 only to a particular factual situation.

Legal argument

[18] In a comprehensive written and oral argument, Mr Smith submitted that the acts or omissions of a supervisor operating at the level of a site foreman could not be attributed to his employer in the circumstances of this case.The Act did not impose absolute or strict liability on an employer.It required only that the employer take all reasonable steps to ensure safety in the respects listed in s6.It was accepted that the employer's obligation under that section extended to the work site, but what was required of the employer was the establishment of safe work systems, the proper training of employees and monitoring to see that the systems were being followed.

[19] The employer could not be all knowing.Counsel submitted that even a well trained and apparently reliable employee like Mr Mazur could sometimes act unsafely.While this may constitute individual offending by the employee under the Act, it does not then impose vicarious liability on his employer.What Mr Mazur did or omitted to do in the circumstances was not an act or omission attributable to the employer under s6.Mr Smith submitted that there was nothing which the employer could reasonably have done to prevent Mr Mazur's errors.He was a well trained employee who had unexpectedly broken the company's rules.The company would learn nothing for the future as a result of the conviction.

[20] For the respondent, Mr Pike submitted that, in accordance with Meridian, the Court must on the question of attribution look at the statutory setting and at the facts in that setting.He referred the Court to Professor Sir John Smith's comment in [1995] Crim LR 655, which was quoted with approval by the English Court of Appeal in Attorney-General's Reference (No.2 of 1999) [2000] EWCA Crim 91; [2000] 2 Cr App R 207, 214:

Where a statutory duty to do something is imposed upon a particular person (here an "employer") and he does not do it, he commits the actus reus of an offence.It may be that he has failed to fulfil his duty because his employee or agent has failed to carry out his duties properly but this is not a case for vicarious liability.If the employer is held liable, it is because he, personally, has failed to do what the law requires him to do and he is personally, not vicariously, liable.There is no need to find someone - in the case of a company the `brains' and not merely the `hands' - for whose act the person with the duty can be held liable.The duty on the company in this case was "to ensure," - i.e. to make certain - that persons are not exposed to risk.They did not make certain.It does not matter how; they were in breach of their statutory duty and, in the absence of any requirement of mens rea, that is the end of the matter.

[21] Responding to counsel for the appellant's argument that the statutory scheme in England is significantly different, Mr Pike submitted that the Health and Safety at Work etc Act 1974 and the Act with which we are concerned are very largely the same in their effect.The English Act imposes a requirement that the employer ensure safety, but there is a defence if the defendant proves that all reasonably practicable steps were taken to avoid exposure to risks; the New Zealand Act requires the taking of all practical steps to ensure safety, but the burden of proof of the offence remains at all stages with the prosecution.

[22] In the present case, Mr Pike submitted that the employer was represented at the place of work by an employee with specific management authority over the injured worker.In the context of the Act, the foreman was, in relation to occupational safety matters, a manifestation of the company.

Decision

[23] An employer which is a corporation can discharge its statutory duties under the Act only through a human agent.The Act is concerned with safety of the employees at work - for example, on the floor of the factory, on building sites, and while operating vehicles, plant and machinery.In practical terms, this is a world far removed from administrative offices which are the natural habitat of senior or middle level management.The statutory obligations upon an employer and, in particular, its obligation to provide on the job supervision of safety practices, must be viewed with this setting in mind.It is difficult to believe that Parliament would have intended that the relevant acts and omissions of the person in charge of a work site should not be attributable to the employer.To ask, as the appellant's counsel did, what more the employer could have done, is to beg the question: whose acts and omissions are to be attributed to the employer?

[24] The employer's duty is "to take reasonably practical steps to avoid risk", to use Lord Hoffman's phrase in R v Associated Octel Ltd [1996] 4 All ER 846, 851.We agree with the lower courts that the acts and omissions of the person in effective charge of a work site, in this case the foreman who had a supervisory capacity, should be attributed to Linework.In applying the test proposed by the Judicial Committee in Meridian (at p12), it was Mr Mazur's actions or inactions that, for the purpose of taking all practicable steps to ensure the safety of employees, were "intended to count" as the acts of the company.

[25] There is some force in Mr Pike's submission that Professor Smith's opinion correctly states the position under our Act once the prosecution proves that all practicable steps were not taken by the employer.Certainly under our statutethere is no longer any need to identify the "directing mind" or, as Professor Smith termed it, the "brains" of a corporate employer.The employer is personally, not vicariously, liable because it failed to do what the law required it to do. Mr Smith's submission that the New Zealand and English Acts are different in their effect can be seen to be largely a verbal quibble when the test under the English statute is stated as it was by Lord Hoffman.We add that what is required in a particular case may be a positive act, or an act of restraint, or both, and that what is practicable is a matter of fact and degree in each case (Central Cranes at p701).

[26] Professor Smith's remarks were made in a commentary on R v British Steel PLC [1995] 1 WLR 1356.That case involved a prosecution under s3(1) of the Health and Safety at Work etc Act 1974:

It shall be the duty of every employer to conduct his undertaking in such a way as to ensure, so far as is reasonably practicable, that persons not in his employment who may be affected thereby are not thereby exposed to risks to their health and safety.

[27] Counsel for British Steel had submitted that a corporate employer could escape liability if a person constituting the "directing mind" of the company had taken reasonable care.This "directing mind" concept originally came from Lennard's Carrying Co Ltd v Asiatic Petroleum Co Ltd [1915] AC 705, 733 and was famously applied by the House of Lords in Tesco Supermarkets Ltd v Nattrass [1971] UKHL 1; [1972] AC 153 where it was held in a prosecution under the Trade Descriptions Act 1968 (very roughly equivalent to our Fair Trading Act 1986 and obviously not involving any safety issue) that the acts of shop managers were not the acts of the company itself.

[28] Founding his argument on Tesco, counsel for British Steel argued that the words in s3(1) should be read as if the words "through senior management" appeared immediately after the word "employer."This approach was rejected by the Court of Appeal in a judgment delivered by Steyn LJ.The Court pointed out that the Trade Descriptions Act contained a due diligence defence not present in the health and safety legislation where more stringent protection was required.Subject to the qualifying words "so far as reasonably practicable", s3(1) was prima facie cast in absolute terms.The section had to be applied in its contextual setting.At p1362-3 the Court said:

If it be accepted that Parliament considered it necessary for the protection of public health and safety to impose, subject to the defence of reasonable practicability, absolute criminal liability, it would drive a juggernaut through the legislative scheme if corporate employers could avoid criminal liability where the potentially harmful event is committed by someone who is not the directing mind of the company.

[29] The Court recognised that there might be circumstances in which it might be regarded as absurd that an employer should even be technically guilty of a criminal offence, but such a circumstance was "inherent in the adoption of general rules to govern an infinity of particular circumstances".In practice, no real difficulty was likely to be caused by such cases.They were unlikely to be prosecuted, but if a prosecution was brought, it would not be likely to be viewed sympathetically by the Court.We note, however, Professor Smith's comment (at [1995] Crim LR 656) that is this not a satisfactory response.

[30] Steyn LJ said that such an interpretation would simplify the law. Employers and employees would know where they stood.Further, it would promote a culture of guarding against the risks to health and safety that arise through hazardous industrial operations.

[31] A similar approach was taken in R v Gateway Foodmarkets Ltd [1997] 3 All ER 78, a subsequent decision of the English Court of Appeal.The charge was under s2(1) of the Health and Safety at Work etc Act 1974, which is materially similar to our s6.As in Tesco, the case was about the actions of store managers.Unbeknown to the company's head office and in contradiction of instructions, the management of the store had adopted an unsafe system for rectifying problems for the lift.Because of this, a manager had fallen to his death.Delivering the judgment of the court, Evans LJ said (p84):

Mr Glen's alternative submission is that the offence is only committed when there has been some failure to take reasonable precautions by `management' as distinct from junior employees. There are two difficulties, it seems to us, with this interpretation of the section. First, there is no clear legal basis for distinguishing between `management' and (other) employees. Secondly, if the test is whether all reasonable precautions have been taken by the company or on its behalf, then it would not seem to be material to consider whether the individual concerned, who acted or was authorised to act on behalf of the company, was a senior or a junior employee. We prefer to conclude, therefore, that a failure at store management level is certainly attributable to the employer, whilst leaving open the question whether the employer is liable in circumstances where the only negligence or failure to take reasonable precautions has taken place at some more junior level.

[32] Counsel for Linework relied heavily upon the decision of the House of Lords in Seaboard Offshore Ltd v Secretary of State for Transport; The Safe Carrier [1994] 2 All ER 99, but that case, although earlier in time, does not appear to have influenced the cases to which we have referred.It concerned whether a ship manager was legally responsible for the acts of the ship's chief engineer under s31(1) of the Merchant Shipping Act 1988, which imposed a duty on the manager to take all reasonable steps to secure that the ship was operated in a safe manner.

[33] Seaboard preceded Meridian.The House of Lords referred to Lord Diplock's dictum in Tesco that the natural persons who are to be treated in law as being the corporation for the purpose of acts done in the course of its business are those who by virtue of its constitution or otherwise are entrusted with the exercise of the powers of the corporation.On this basis it was held that the ship manager was not liable for the acts or omissions of subordinate employees if the manager had itself taken reasonable safety steps.With respect, this is not an approach which commends itself to us, for the reasons outlined above.

[34] It would seem that the prosecution in Seaboard failed because the case had not been presented at trial before the Justices in a manner which enabled them to consider whether the manager had failed to take all reasonable steps.It was too late to argue on appeal that there had been a failure to establish adequate systems for securing that the ship did not go to sea before the chief engineer had sufficient opportunity to familiarise himself with its machinery and equipment.The very brief concluding remarks of Lord Keith of Kinkel finding that there was no liability should be seen in this light.In addition, it ought to be recognised that their Lordships did not yet have the benefit of an analysis of the kind provided by Lord Hoffman in Meridian.

[35] Our attention has been drawn to a provision in the Maritime Safety Act 1994 which was introduced into Parliament in May 1993, a few months after the Divisional Court judgment in Seaboard.That Act contains not only provisions parallel to ss6 to 19 of the Health and Safety in Employment Act 1992, but also s410 which imposes liability on a principal as if the principal had personally committed an offence committed by an agent or employee. But there is a defence, in the case of a body corporate, where neither the directors nor any person involved in its management knew or could reasonably have been expected to have known that the offence was to be or was being committed.It is also a defence under s410 if the body corporate took all reasonable steps to prevent commission of the offence.Section 410 is in the same terms as s340 of the Resource Management Act 1991 where of course there is no context of danger to persons.Mr Smith suggested that the absence from the 1992 Act of an equivalent provision is of significance but we prefer the view that Parliament was simply reacting to Seaboard and the possibility that it might be applied to prosecutions arising from maritime accidents.We do not think that the difference in the two statutes should influence the application of the 1992 Act.

[36] Allowing for the fact that the burden of proof in relation to all practicable steps is borne by the prosecutor under the New Zealand Act, we think that the approach taken in British Steel and Gateway arguably is appropriate for the reasons given by Steyn LJ (see para [30] above) - perhaps all the more so in New Zealand where, in comparison to other jurisdictions, the accident compensation scheme has to some extent reduced the incentive for an employer to ensure the safety of its workers, as an injured party cannot sue for compensatory damages.

[37] But we do not need to go that far in the present case, for Mr Mazur was acting as the employer's representative on site and if he, as that representative, had taken all practical steps to ensure safety, the accident would most likely have been prevented.Certainly the risk would have been reduced.In accordance with the findings of Judge Keane, as confirmed by Wild J, Mr Mazur failed to ensure that Mr Thomson cut off or tied the tails of the redundant cable before moving it.He did not ensure that Mr Thomson made an attempt to earth the cable so that any electrical flow would be less likely to cause injury.He did not act as a safety observer or arrange for another gang member to do so.

[38] These failures would appear to have placed Mr Mazur in breach of his personal obligation under s19 to take all practicable steps to ensure that no action or inaction on his part while at work caused harm to any other person. He would appear to have personally committed an offence under ss19 and 50(1)(a), in respect of which he was not prosecuted.But, in terms of s2(2)(c), an employer's duty imposed by the Act is not diminished or affected by the fact that it is also imposed on one or more other persons.The fact that Mr Mazur was personally under a duty and may have breached that duty does not exculpate Linework from its own breach of duty under s6.Mr Mazur was the embodiment of the employer - its designated authority - for on-site safety purposes.His acts or omissions as Linework's foreman or site supervisor are properly attributable to the company.

[39] Mr Smith suggested that to convict Linework in respect of Mr Mazur's acts and omissions towards Mr Thomson would be to impose an absolute or strict liability upon the company.Liability under ss6 and 50 can be characterised in that way, but it is not particularly helpful to do so.Certainly it is not necessary for the prosecutor to prove the existence of a guilty mind, which is made clear by s53.The failure to take practicable steps to ensure safety may be quite inadvertent.But it still gives rise to liability.Though called "strict liability" - see the heading to s53 - liability will always depend upon proof of blameworthiness in the particular circumstances.Mr Mazur's supervisory duties are treated as those of Linework but if an accident or dangerous situation had occurred despite the taking by Mr Mazur of all practicable steps to ensure safety, Linework would not have been in breach of s6.On the present facts, however, not all practicable steps were taken.

Result

[40] In terms of the second question posed for the Court, our answer is that the acts or omissions of the appellant's employee, Mr Mazur, on the evidence, were able to be attributed to the appellant.We do not answer the first question.We dismiss the appeal.

[41] Pursuant to s8 of the Costs in Criminal Cases Act 1967, the respondent is awarded costs in this Court of $5,000.The appellant must also pay the respondent's reasonable disbursements, to be fixed if necessary by the Registrar.

TIPPING J

Introduction

[42] I agree that this appeal should be dismissed generally for the reasons stated in the judgment which Blanchard J has prepared.It is unarguable that all practical steps were not taken to ensure Mr Thomson's safety when he was engaged on the task which caused his injuries.The question is whether his employer, Linework, thereby committed an offence against s50(a) of the Health and Safety in Employment Act 1992 (the Act).Such an offence is one of strict liability in the sense that an employer's failure to take all practicable steps to ensure the safety of an employee, does not have to be intentional:see s53(b).

[43] It should also be noted that officers, directors and agents of a body corporate which is guilty of such a failure, are themselves guilty if they directed, authorised, assented to, acquiesced in, or participated in the failure.That applies whether or not the body corporate has been prosecuted or convicted:see s56.Although not of immediate relevance in the present case, this provision suggests that a body corporate's own failure depends simply on the fact that all practicable steps have not been taken.This is the first of two routes which to my mind may be taken when analysing the fundamental issue raised by this case.Both lead to the same result.The first route is more direct than the second and will therefore usually be the more helpful.The second provides a more traditional analysis.Indeed the questions of law in respect of which leave was granted to appeal to this Court seem to have been formulated on the basis of the second route.

First route

[44] This route follows essentially the path suggested by Professor Sir John Smith and mentioned at paragraph [20] of the judgment prepared by Blanchard J. Under s6 of the Act employers are under a statutory duty to take all practicable steps to ensure the safety of their employees while at work.That general duty is supported by particular duties as set out in the lettered paragraphs of s6.If a prosecution of an employer for a breach of s6 is to succeed, the crucial thing to be established is that there was a practicable step which could have been taken and which, if taken, was likely to have prevented the harm suffered by the employee.In the present case several such steps were identified.If at least one such step is demonstrated it must follow that the employer has failed to take a step which, ex-hypothesi, was a practicable step which ought to have been taken.It does not matter on this analysis who omitted to take the step, provided some practicable step could have been taken by someone other than the injured employee.

[45] If no practicable step could have been taken by someone other than the injured employee, the employer will not have committed an offence against s6. The concept of practicable steps covers things like proper training and the establishment of safe systems of work.But it is not limited to such things and can of course relate to operational steps.Here the failure was of an operational kind rather than in the area of training or underlying systems. The simple fact is that all practicable steps to ensure Mr Thomson's safety were not taken.Both on the language of the Act and in accordance with its policy, Linework as his employer was thereby in breach of its statutory duty to him.As will be apparent, this analysis does not depend on Mr Mazur's status within the employer company, nor upon concepts of agency or vicarious liability.It relies simply upon the proposition that once there has been a failure to take a practicable step to ensure the employee's safety, the employer is responsible for that failure.

Second route

[46] This route has the same point of departure as the first.Employers have duties under s6.A company employer can discharge its duties only via its servants or agents (normally other employees).The first step is to identify the particular duty which has not been discharged (here at least a failure to provide adequate supervision).The next step is to identify the particular servant or agent of the company who was responsible for discharging that duty. If no such employee can be identified, the question becomes whether the company was in breach of its statutory duty by not having an employee whose task it was to fulfil that duty.If there was such an employee, the question is whether that employee has taken all practicable steps to fulfil the duty.

[47] At the time and place of the occurrence of the injuries to Mr Thomson, his employer's obligation to provide supervision and otherwise to provide for his safety fell to be discharged by the foreman, Mr Mazur.He failed to take all practicable steps to ensure Mr Thomson's safety.He represented the employer company at that time and in that place "for the purpose" of fulfilling the s6 duty:see Meridian Global Funds Management Asia Limited v Securities Commission [1995] 3 NZLR 7,12 (JC) per Lord Hoffman.The duty to take all practicable steps to ensure the safety of an employee engaged on a potentially hazardous activity was capable of fulfilment only by someone on the site.If the company had had no-one present in a supervisory capacity it would thereby have been in breach of its s6 duty.As it was, the site foreman was responsible for supervising and otherwise providing for the safety of Mr Thomson.Mr Mazur's failure to take all practicable steps to do so was, for present purposes, the employer's failure.The fact that the failure was a personal breach of duty by Mr Mazur, is of no present moment:s2(2)(c).

Conclusion

[48] Whichever of the two routes identified above is taken, the result is that Linework was correctly convicted of the offence with which it was charged.I too would not answer the first question identified when leave to appeal was granted.

[49] The second question is couched on the basis that the issue is whether Mr Mazur's acts or omissions could be attributed to Linework.If one follows the first route I do not consider that the concept of attribution arises.If the second route is followed I would answer question (b) in the affirmative, on the basis that Mr Mazur's conduct was able to be attributed to Linework and was correctly so attributed.

Solicitors

Russell McVeagh, Wellington for Appellant

Crown Law Office