Multi-Run Roofing had been contracted to install safety rails along the edge of a factory roof. Instead of installing rails, Lavin and his company directed scissor lifts to be positioned as barriers. In July 2014, Whareheera Keepa Te Amo was working on the roof without a harness when he fell and suffered fatal injuries. Some fall harnesses were provided to workers, however the wearing of harnesses was not a compulsory practice.
Mr Lavin was convicted on 6 February 2019 under section 31 of the Work Health and Safety Act for recklessly exposing a worker to the risk of death. He was sentenced to one year imprisonment.
The misdirection and proper construction
The trial judge asked the jury to consider whether it would have been reasonably practicable to install a safety rail. However, the Court of Appeal identified the correct decisions for the jury to make were whether the failure to erect the railing exposed Mr Te Amo to a serious injury or death, and if so whether there was a reasonable excuse for Mr Lavin not having the rails installed. This would allow the jury to consider the adequacy of the scissor lifts and harnesses, not just the practicability of installing the railing. The question was whether those alternative measures were a reasonable excuse for leaving Mr Te Amo otherwise exposed to the remaining risk of falling.
The Court also identified that Mr Lavin's belief as to what measures were in place was relevant to the reasonableness of the excuse. Although the worker was not wearing a harness, Mr Lavin may have believed that a harness was being worn.
The decision clarifies that while reasonable excuses are largely assessed at an objective standard, a manager's belief will also be relevant. This does not give officers a free pass to turn a blind eye to safety matters. There are due diligence requirements to know, be involved with and report any workplace safety hazards.
We will keep you updated on further developments in this case, however if you require further information or have any queries in relation to this legal update, please contact Matthew Smith or Andrew Ross.