19.02.2021

“Recklessness” under the Health and Safety at Work Act 2015

The High Court has clarified the elements of the offence of reckless conduct in the Health and Safety at Work Act 2015.

Guidance from Sarginson v Civil Aviation Authority [2020] NZHC 3199

Introduction

In December 2020, the High Court dismissed two appeals arising from the prosecution of a helicopter pilot involved in a fatal crash.  The decision provides High Court authority in relation to four important issues under the Health & Safety at Work Act 2015 (HSWA):

  1. Liability of ‘officers’ of a person conducting a business or undertaking (PCBU);
  2. When a person is ‘at work’ for the purposes of the HSWA;
  3. Clarification of the elements of the ‘recklessness’ offence (s 47 of the HSWA); and 
  4. The correct calculation of reparation for consequential loss for family members of the victim of a fatal workplace incident.

This article addresses the third of these topics – the “recklessness” offence (s 47 of the HSWA).  In its decision, the High Court clarified that failing to comply with a duty, imposed by subpart 2 or 3 of part 2 of the HSWA, is an implicit element of the offence.  And, it approved the District Court’s articulation of the remaining elements.

Background

Reckless conduct in respect of a duty imposed by the HSWA is the most serious health and safety offence.  It carries a maximum sentence of:

  1. five years imprisonment or a fine not exceeding $300,000 (or both) for an individual who is not a PCBU or an officer of a PCBU;
  2. five years imprisonment or a fine not exceeding $600,000 (or both) for an individual who is a PCBU or an officer of a PCBU; and
  3. a fine not exceeding $3 million for any other person (including a company).

Following a trial in the District Court, Murray Sarginson was convicted of two charges of engaging in conduct that recklessly exposed a person to the risk of serious injury or death (s 47 of the HSWA).

Mr Sarginson appealed those convictions.  One ground of the appeal was whether proof of a failure to comply with a duty under the HSWA was a necessary element of an offence under s 47 of the HSWA.

Mr Sarginson argued that the District Court failed to consider this as an ingredient of the offence and that, in any event, he had complied with his duty as an officer of the PCBU; therefore, he could not have been found guilty of the charge brought against him in that capacity.

Facts

Mr Sarginson and the victim, Liam Edwards, had been partners in an earthmoving business, AgWorks South (AgWorks).

On Sunday, 30 April 2016, the two men were flying in a helicopter from Mr Sarginson’s farm at Athol in Southland to the remote Mount Algidus Station, where AgWorks was working.  Mr Sarginson co-owned the helicopter with his nephew.

Approximately one hour into the flight, the helicopter reached the mountains around the MacKenzie Basin and Lindis Pass area.  Mr Sarginson, who was flying the helicopter, discovered the area was shrouded in a heavy layer of cloud, which diminished visibility and obscured the ground below.

Mr Sarginson decided to descend.  During the descent, Mr Sarginson brought the helicopter to a hover.  The helicopter had difficulty sustaining the hover because it was overloaded.  The additional weight compromised its balance.

The combination of reduced visibility and compromised balance was disastrous.  It caused Mr Sarginson to lose spatial awareness and concentration.  As a result, the helicopter struck the side of the hill.  Mr Edwards died from his injuries at the scene.  Mr Sarginson also suffered serious injuries but later recovered.

Mr Sarginson was convicted of two charges under the HSWA, both under s 47: that as an officer of AgWorks, and as a worker of that business, he, without reasonable excuse, engaged in conduct that exposed Mr Edwards to the risk of death or serious injury, and was reckless as to that risk.

“Recklessness” under the Health and Safety at Work Act

 Elements of the offence 

The District Court identified the following elements of the “recklessness” offence, which the High Court approved on appeal:

  1. the defendant had a duty under subpart 2 or 3 of part 2 of the Act (in this case as an officer or, in the alternative, as a worker);
  2. the defendant engaged in conduct that exposed an individual to whom that duty was owed to a risk of death or serious injury;
  3. there was no reasonable excuse for such conduct; and
  4. the defendant was reckless as to the risk to an individual of death or serious injury.

In relation to (d), the Supreme Court set out the criteria for recklessness in Cameron v R [2017] NZSC 89, [2018] 1 NZLR 161: Recklessness has both a subjective and objective element.  To prove recklessness it is necessary to establish:

  1. The defendant recognised there was a real possibility that:
    1. his or her actions would bring about the proscribed result; and/or
    2. that the proscribed circumstances existed; and
  2. having regard to that risk those actions were unreasonable.

The Appeal

As noted above, one aspect of the appeal concerned the District Court’s characterisation of the elements of the offence.  Specifically, whether a failure to comply with a duty imposed by the HSWA was an element of the offence, and if so, whether the District Court failed to assess it.

By way of background, the HSWA sets out a hierarchy of offences, in subpart 4 of part 2 of HSWA, under the heading “[o]ffences relating to duties”.  There are three tiers of offences, ranging from the most serious (s 47) to the least serious (s 49): section 49 only requires proof of a person being subject to a duty and the failure to comply; s 48 adds the aggravating feature of the failure exposing a person to the risk of death or serious injury; and the most serious offence under s 47 introduces the element of recklessness as to the risk of death or serious injury.

It was common ground in the appeal that s 47 does not explicitly state that a defendant must have failed to comply with the identified duty imposed on them by the HSWA.  Mr Sarginson argued that, in light of the hierarchy of offences and the scheme of the HSWA, proof that a person failed to comply with a relevant duty imposed on them by the HSWA was an essential element of the charge.

The Decision

The Court agreed that to be convicted of a charge under s 47, the defendant must have failed to comply with a duty to which they were subject under subpart 2 or 3 of part 2 of HSWA.

It considered the element to be “implicit in the words of s 47(1)(b) that require the person to have engaged in conduct that exposes an individual to whom “that duty” is owed to a risk of death or serious injury”.  Further, the Court could not envision a circumstance where a duty holder could engage in conduct that thereby knowingly exposes another person to the risk of death or serious injury without breaching their duties under HSWA.

If a duty holder recklessly and without excuse exposed the other person, by their conduct, to a risk of death or serious harm, they will necessarily have breached their duty.  Repetition of the element that is expressly found in the lesser offences of ss 48 and 49 is unnecessary.

The Court went on to find that Mr Sarginson did fail to comply with the identified duty under the HSWA, and upheld his convictions.  His appeal on this ground was dismissed.

Comment

This aspect of the decision provides useful clarification of the elements of a charge under s 47 of the HSWA.  In particular, it is implicit in the elements of the offence that a defendant has failed to comply with a duty imposed on them by subpart 2 or 3 of part 2 of the HSWA.  Helpfully, the High Court has approved the District Courts articulation of the elements of this offence, which will guide both the prosecutor and the defendant in future trials.

If you have any questions in relation to this article, or require specific advice in relation to a health and safety matter, please feel free to get in touch with Hesketh Henry’s Health & Safety Team.

 

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