PROGRESSIVE MEATS LTD v WORKSAFE NEW ZEALAND [2023] NZHC 3784

PROGRESSIVE MEATS LTD v WORKSAFE NEW ZEALAND [2023] NZHC 3784 [19 December 2023]IN THE HIGH COURT OF NEW ZEALANDNAPIER REGISTRYI TE KŌTI MATUA O AOTEAROAAHURIRI ROHECRI-2023-441-012[2023] NZHC 3784BETWEEN PROGRESSIVE MEATS LIMITEDAppellantAND WORKSAFE NEW ZEALANDRespondentHearing: 27 September 2023Appearances: A F Pilditch KC and B R Harris for AppellantT G Bain and K I Opetaia for RespondentJudgment: 19 December 2023JUDGMENT OF GRICE J(Appeal against conviction)[1] The appellant, Progressive Meats Ltd, is a meat processing business whichoperates in Hastings. On 15 October 2020, while using a brisket cutter on the slaughterfloor at the appellant's meat processing site, the victim injured his right hand, part ofwhich had to be amputated as a result.[2] As a result of this accident, WorkSafe New Zealand (Worksafe) charged theappellant under the Health and Safety at Work Act 2015 (HSWA) with failing tocomply with a duty to ensure the health and safety of its workers, which exposedworkers to a risk of death or serious injury arising from the use of plant. In brief,WorkSafe alleged that the appellant should have: first, recognised the risk that thetwo–handed control on the brisket cutter could be bypassed, and remedied this; andsecondly, should have ensured the victim was properly trained and supervised.[3] A brisket cutter is "like a very large pair of shears that is used to cut the brisketof a lamb carcass during the course of processing."1 It was accepted by all parties thata brisket cutter is a potentially very dangerous piece of equipment and in the wrongcircumstances serious injury or death could follow from an accident with a brisketcutter.2 There is no dispute in this case that the injuries the victim received wereserious.3[4] Following a defended hearing before Judge Rea in the Hastings District Court,in a reserved decision dated 2 March 2023, the Judge dismissed the first allegation.The Judge dismissed the suggestion that the appellant ought to have been aware of thesafety defect in the brisket cutter, or that it ought to have replaced or modified thebrisket cutter to be safer. However, the Judge found that the appellant failed to ensurethe victim's training in dealing with potentially dangerous equipment (like a brisketcutter) was adequate, and under this head found the charge proved beyond reasonabledoubt.[5] The appellant says the Judge erred in finding that the appellant had failed totrain the victim in the correct use of the brisket cutter (that is, with two hands), on thebasis that the evidence did not support that conclusion to the required criminalstandard, and that finding contradicted other findings regarding the appellant's robustsafety systems and lack of knowledge that the brisket cutter was capable of being usedwith one hand.Conviction decision[6] WorkSafe set out as particulars of the charge, three "reasonably practicable"ways in which the appellant could have reduced or eliminated the risk when using abrisket cutter. It said that the appellant failed to:1 WorkSafe New Zealand v Progressive Meats Ltd [2022] NZDC 3831 [conviction decision] at [5].2 At [6].3 The notes of evidence, briefs of evidence and exhibits had not been transferred from theDistrict Court to the High Court file. Counsel indicated that they wish to proceed with the appealin any event and provided a copy of the notes of evidence for use during the appeal hearing. Theyprovided an agreed list and copies of the exhibits and other documents on the District Court file,including the briefs of evidence, shortly after the appeal hearing.(a) provide and maintain proper systems to identify and then managehazards appropriately;(b) ensure that the two-handed use of the brisket cutter could not bebypassed; and(c) ensure adequate "instruction, monitoring, and supervision of workers,for the purpose of ensuring ongoing compliance with safe use andhandling" of the brisket cutters.[7] As the Judge noted, the prosecution had to prove only one of these particularsin order to establish liability under ss 36 and 48 of the HSWA.4[8] The Judge first considered the last of these: whether it was reasonablypracticable for the appellant to ensure there was adequate instruction, monitoring andsupervision of workers, for the purpose of ensuring ongoing compliance with safe useand handling.[9] The leading hand on the lamb slaughter floor at the time gave evidence that hecould not recall who instructed the victim on how to use the brisket cutter. Thevictim's evidence was that he was trained by a co-worker, who had started hisemployment on the same day as the victim. The co-worker had started work on thelamb slaughter floor while the victim had started in the offal room. According to theJudge, the victim said his "training" on the brisket cutter with the co-worker, Mr Alasted about four hours. The victim said initially the co-worker showed him how touse the brisket cutter with both hands but then switched to using one hand. The victimsaw what the co-worker did and so he operated the brisket cutter one-handed himself,when he became more proficient.[10] The victim said he did not get any instruction on using the brisket cutter fromanyone else other than Mr A. The Judge found this was supported by what the leadinghand had said himself, who had known that the victim was to be trained in its use but4 At [13].had not been able to say who it was that undertook that training. The Judge noted theappellant's documentation also did not stipulate who was to do or did train the victim.[11] The victim recounted that it was while he was operating the brisket cutter usingonly one hand that the blades of the brisket cutter activated and caused the injuries tohis hand.[12] The Judge said there were several inconsistencies in the victim's evidence andthe victim accepted he had no recollection at all of what happened after the accident.The Judge said, however:[28] Despite the criticisms that can be made of [the victim's] evidence, Ihave no doubt at all that what he says about his "training" on the brisket cutteris accurate. He was adamant that he was shown how to use the brisket cutterby [the co-worker] and that it was [the co-worker] that showed him how touse it one-handed.[13] The Judge considered the victim's evidence was supported in two key ways.First:5 [The leading hand] took him up to the job when he was to be trained on thebrisket cutter, but he did not undertake the training himself. In his evidencehe said that it was possible that an employee who had already been trained inthe brisket cutter could be used to train a new employee in its use. It is knownthat at the time there was an employee called [the co-worker's name] who wasworking in that general area [14] Secondly:6 In addition, [the victim] said he got his injuries while using the brisketcutter one-handed and the nature of his injuries and how they were causedprovides overwhelming support for that. Either [the victim] must have figuredout on his own how to bypass the safety system and use the brisket cutterone-handed or someone showed him how to do it.[15] The Judge accepted the victim's evidence and concluded that the co-workermust have used the brisket cutter one-handed during the course of "training" thevictim, and that was how the victim learned to do it. The Judge accepted the victim'sevidence that he was not told by the co-worker that the brisket cutter must be usedwith both hands. The Judge considered the co-worker had showed him what amounted5 At [29].6 At [29].to a "shortcut" in using the brisket cutter one-handed.7 The Judge concluded that theco-worker was delegated by someone in authority on the slaughter floor to train thevictim, and that the victim's training was "completely inadequate and, indeed,positively dangerous."8 The Judge found that the appellant had delegated the trainingof the victim on this piece of equipment to "somebody who clearly should not havebeen given that role" and that the victim "was not properly supervised at the time heundertook the training."9[16] The Judge concluded:[35] When dealing with potentially dangerous equipment like a brisketcutter it must always be reasonably practicable for proper training to be givenand the safety aspects explained otherwise there is no point in giving anytraining at all.[36] No matter how comprehensive the training may have been in otherareas it was completely inadequate in this case. On that basis that particular,and the charge, is proved beyond reasonable doubt.[17] The Judge noted this finding on the third particular determined the outcome ofthe charge but went on to consider the other two particulars alleged. The first that theappellant should have provided and maintained adequate systems and processes toensure that hazards arising from the brisket cutter, being a potentially dangerous pieceof equipment, were identified and managed immediately and appropriately. Secondly,that the appellant should have ensured that the brisket cutter was safe to use. TheJudge considered whether the appellant should have given far more scrutiny to thebrisket cutter from a safety point of view on a regular basis, and whether it wasreasonably practicable for the brisket cutter to be independently safety-checked by anexpert from time to time, including tests to see whether the two-handed safety systemcould be defeated and the brisket cutter operated one-handedly.[18] The Judge dismissed the charge on the first and second particulars, finding thaton the evidence there was nothing that could have alerted the appellant to the safetydefect in the brisket cutter, and WorkSafe had failed to prove beyond reasonable doubt7 At [31].8 At [31] and [34].9 At [34].that safer procedures were reasonably practicable.10 It was only in respect of theinadequate instruction, monitoring and supervision that the appellant was found tohave breached its duty.SubmissionsAppellant's submissions[19] The appellant appeals the conviction on the grounds that the Judge erred infinding that the appellant had failed to train the victim in the correct use of the brisketcutter (that is, with two hands), on the basis that the evidence did not support thatconclusion to the required criminal standard. The appellant says the manner in whichthat conclusion was reached gives rise to a miscarriage of justice. The appellant alsosays that this finding contradicted other findings regarding the appellant's robustsafety systems and lack of knowledge that the brisket cutter was capable of being usedwith one hand. The appellant submits the evidence was not sufficient to support anyconclusion of guilt.Respondent's submissions[20] The respondent says the only possible outcome in respect of the appellant'straining was that it was inadequate, and the appellant was guilty. In particular, therespondent submits the victim gave clear and credible evidence about how he wastrained, which was supported by that of the leading hand and not challenged orcontradicted. Moreover, the respondent submits the evidence showed that the victim'sinadequate training was carried out under the appellant's supervision. The faults inthe victim's training, and the subsequent lack of proper monitoring and supervision,were attributable to the appellant. Finally, the respondent submits the Judge's factualfindings were not contradictory. The respondent says the appellant went some way todischarging its obligations under the HSWA, but had not done everything that wasreasonably practicable, and failed in the implementation of its policies in this way.10 At [59]–[60].Approach to appeal[21] The Court must allow an appeal of a decision in a Judge-alone trial if it issatisfied that the Judge erred in their assessment of the evidence to such an extent thata miscarriage of justice has occurred, or a miscarriage of justice has occurred for anyreason.11 The appellant submits if the appeal is allowed, in this case an acquittal isappropriate, because, even putting the prosecution case at its highest, the evidence wasnot sufficient to support the finding of guilt.[22] A "miscarriage of justice" is any error, irregularity, or occurrence in or inrelation to or affecting the trial that (a) has created a real risk that the outcome of thetrial was affected; or (b) has resulted in an unfair trial or a trial that was a nullity.12 Amiscarriage of justice is "more than an inconsequential or immaterial mistake orirregularity".13 The errors or irregularities must depart from good practice in a mannerthat is "so gross, or so persistent, or so prejudicial, or so irremediable" that anappellate court must condemn the trial as unfair and quash the decision.14[23] A "real risk" that the outcome was affected exists when "there is a reasonablepossibility that a not guilty (or more favourable) verdict might have been delivered ifnothing had gone wrong".15 The appellant does not have to establish that the verdictwas "actually unsafe" but rather that there is a real possibility the verdict would beunsafe.16 To meet the "real risk" test, "something more" than a simple disagreementwith a Judge's factual assessment is required.17[24] In an appeal from a Judge-alone trial, the appellate court must form its ownindependent judgment on the merits of the appeal following the approach inAustin, Nichols.18 If an appellate court comes to a different view on the evidence, the11 Criminal Procedure Act 2011, s 232(2)(b)–(c). For conviction appeals involving WorkSafe seefor example Southern Pallet Recycling Ltd v WorkSafe New Zealand [2022] NZHC 1042, (2022)18 NZELR 873; and Waimea Sawmillers Ltd v WorkSafe New Zealand [2016] NZHC 915.12 Section 232(4).13 Matenga v R [2009] NZSC 18 at [30].14 R v Condon [2006] NZSC 62, [2007] 1 NZLR 300 at [78], citing with approval Randall v R [2002]UKPC 19, [2002] 1 WLR 2237 at [28].15 R v Sungsuwan [2006] 1 NZLR 730 (SC) at [110].16 At [110].17 Gotty v R [2017] NZCA 528 at [15].18 Sena v Police [2019] NZSC 55, [2019] 1 NZLR 575, citing Austin, Nichols & Co Inc v StichtingLodestar [2007] NZSC 103, [2008] 2 NZLR 141.Judge necessarily will have erred and the appeal must be allowed.19 However, theappellant bears the onus of persuading the appellate court to reach a differentconclusion, and in discharging that onus must identify the respects in which thejudgment under appeal is said to be in error.20 Additionally, in determining whetherthe judgment was wrong, the appellate court "must take into account any advantagesa trial judge may have had."21 Some caution must therefore be adopted beforedeparting from factual findings. Ultimately the appellant must persuade theappeal court that the trial Judge erred.Relevant law[25] The purpose of the HSWA is to provide a balanced framework to secure thehealth and safety of workers and workplaces.22 The guiding principle of the HSWA isthat workers and other persons should be given "the highest level of protection againstharm to their health, safety, and welfare from hazards and risks arising from work orfrom specified types of plant as is reasonably practicable."23[26] Under s 36(1)(a), PCBUs, or "persons conducting a business or undertaking",are subject to the "primary duty of care" and must ensure, so far as is reasonablypracticable, the health and safety of its workers. "Primary" means "first in terms ofbeing of fundamental application and importance".24 Duties are not transferrable anda PCBU cannot rely on default by others to excuse its own deficiencies. Where a dutyapplies, a PCBU must eliminate risks to health and safety so far as is reasonablypracticable, or if it is not reasonable practicable to eliminate risks, to minimise thoserisks so far as is reasonably practicable.[27] "Reasonably practicable" is defined in the Act to mean that which is, or was,at a particular time, reasonably able to be done in relation to ensuring health and safety,taking into account and weighing up all relevant matters. Such matters may includethe likelihood of the risk occurring, and degree of harm that might result, whether the19 At [38].20 At [38].21 At [38].22 Health and Safety at Work Act 2015, s 3(1).23 Section 3(2).24 Linfox Logistics (NZ) Ltd v WorkSafe New Zealand [2018] NZHC 2909 at [52].person knows, or ought reasonably to know, about the risk and ways of eliminating orminimising the risk, and the availability, suitability and cost of ways to eliminate orminimise the risk.[28] In Baiada Poultry Pty Ltd v R, the High Court of Australia considered a similarprovision to s 36(1)(a), stating:25 The words "reasonably practicable" indicate that the duty does not requirean employer to take every possible step that could be taken. The steps that areto be taken in performance of the duty are those that are reasonably practicablefor the employer to achieve the identified end of providing and maintaining asafe working environment. Bare demonstration that a step could have beentaken, and that, if taken, it might have had some effect on the safety of aworking environment does not, without more, demonstrate that an employerhas broken the duty [29] The HSWA "does not require employers to ensure that accidents neverhappen", but rather "requires them to take such steps as are practicable to provide andmaintain a safe working environment."26 Each case must be assessed in view of thecircumstances, and "not with the benefit of hindsight, nor with the wisdom ofSolomon, but nevertheless remembering that one of the chief responsibilities of allemployers is the safety of those who work for them."27[30] A PCBU must be alert to the possibility that workers will not always act inperfect, safety-maximising ways. Worker error does not detract from PCBUresponsibility.28 Where a business delegates responsibility to an employee orcontractor, the HCWA provides that the business is liable for acts or omissions carriedout by that agent.29 Thus if a person in charge of a workplace fails to implement aworkplace safety policy correctly, and as a result exposes workers to risk, the businessis liable for that conduct.30 In Linework Ltd v Department of Labour, the Court held25 Baiada Poultry Pty Ltd v R (2012) 246 CLR 92 at [15] (emphasis in original).26 Though dealing with different legislation, see Holmes v R E Spence & Co Pty Ltd (1992) 5 VIR119 (VSC) at 123.27 At 123.28 Department of Labour v Hanham & Philp Contractors Ltd [2008] 6 NZELR 79 (HC) at [138];and Department of Labour v Eziform Roofing Products Ltd [2013] NZHC 1526, (2013) 11 NZELR1 at [52].29 Health and Safety at Work Act, ss 160–161.30 Linework Ltd v Department of Labour [2001] 2 NZLR 639 (CA) at [23]–[24] and [38].that the acts and omissions of the person in effective charge of a work site should beattributed to the company,31 stating:32 The fact that [the foreman] was personally under a duty and may havebreached that duty does not exculpate [the company] from its own breach ofduty . [The foreman] was the embodiment of the employer – its designatedauthority – for on-site safety purposes. His acts or omissions as [thecompany's] foreman or site supervisor are properly attributable to thecompany.Discussion[31] I now turn to consider whether the Judge erred in his assessment of theevidence and finding the appellant liable under the third particular of the charge.[32] The appellant submits there are two main but related respects in which theJudge erred. First in relation to the sufficiency of evidence establishing that the victimwas "trained" to use the brisket cutter with one hand rather than with two hands, andas a corollary how that liability finding was reached. Secondly, the appellant submitsthe Judge's findings on this issue were contradictory to the findings he made in respectof the other particulars.Sufficiency of evidence[33] The appellant submits there was insufficient evidence for the Judge to besatisfied, beyond reasonable doubt, that the victim had been "trained" to use the brisketcutters with one hand by someone who was authorised to train him, namely theco-worker. There are two main arguments under this head.[34] First, the appellant submits there was insufficient evidence to prove beyondreasonable doubt that the victim was in fact trained by the co-worker in the mannerthat he described. Secondly, the appellant also submits there was insufficient evidenceto prove that the victim's training was carried out with the appellant's authority. Therespondent submits there was ample evidence to prove the charge on which theappellant was convicted, namely that the co-worker trained the victim in one-handed31 At [24].32 At [38].use of the brisket cutters, and that the victim's training was carried out with theappellant's authority.Training in one-handed use[35] The appellant submits that a proper characterisation of the evidence, put at itshighest, is that the victim was trained to use the brisket cutter with two hands. Theappellant says he had been assessed for competence and demonstrated that he knewhow to use the brisket cutter. It submits that rather than being trained that one-handeduse was an acceptable method of use, the victim simply started doing what he said hesaw others doing, namely using the brisket cutter with one hand, knowing this was notwhat he had been trained to do. The appellant submits that this was at the least areasonable possibility, sufficient to raise reasonable doubt as to what exactly the victimhad been "trained" to do. The appellant says there were alternative reasonablepossibilities on the evidence that were inconsistent with guilt on this basis, such ashaving observed and then picked up, even from the co-worker himself (but not as partof his training), "bad habits" such as using the brisket cutter with one hand, which theappellant could not be vicariously liable for. The appellant submits that in thosecircumstances the benefit of that doubt should have been given to the appellant, andthe Judge was wrong to be satisfied, beyond reasonable doubt, that the victim had beentrained in one-handed use.[36] The respondent submits there was ample evidence that the victim was trainedby the co-worker in one-handed use and that was never put to the victim that he waslying about who trained him, or how he was trained. It says there was simply noevidence to contradict the victim's account.[37] The co-worker who the victim said trained him, Mr A, was not called as awitness for the prosecution. Neither was he identified nor interviewed by theWorkSafe investigators. The appellant submits this meant the prosecution could notprove that the co-worker had trained the victim. That overlooks the fact that however,the victim gave first-hand evidence about how he was trained, and, as the respondentpoints out, there was no challenge to the victim's evidence on this point. The appellantcould have called the co-worker if it had so chosen. It cannot now speculate as to whatthe co-worker's evidence might have been.[38] The particular alleges failures of "instruction, monitoring, and supervision".The Judge focused on the victim's training. Practical demonstrations are an importantpart of the training process, and the victim learnt on the job through observing theco-worker. The evidence of the victim was clear about what he was shown to do —to use the cutter with one hand.[39] Mr Pilditch KC for the appellant submitted that those in authority, includingMr Mitchell who was the leading hand/supervisor, did not know it was the practice touse the brisket cutter one-handed let alone that it was happening. He said the victimwas trained to use it two handed but must have seen people, including his co-workerMr A, using it one-handed. Mr Pilditch submitted there was no systemic failure. Theappellant said that in the circumstances, the company could not be liable forco-workers adopting a practice about which those in authority knew nothing.[40] Mr Pilditch pointed to a document that the victim signed saying that he hadundergone the training and would follow procedures. This was dated30 September 2020. The incident with the brisket cutter happened on15 October 2020.[41] The material which was attached as separate pages before the signature pageset out the procedures for the use of the cutter. Page 2 of the instructions stated thatthe cutter must be operated with one hand on each handle. Mr Mitchell, the leadinghand/supervisor signed the document under the designation "Tutor". The victimsigned the document as "Trainee" which acknowledged that he had undergone trainingon the brisket cutter, he understood it and would follow safe work procedures all times.[42] Mr Mitchell said there was no documentary evidence that would assess atrainee's competence in various aspects of using the cutter nor was there anyinformation about what exactly was covered in the training for the cutter. Mr Mitchellsaid that he would have given the training material to the trainee to read, and theycould ask any questions arising from it. He said the trainee would be then taken tolearn on the job. Mr Mitchell in his evidence said that a competent worker would beassigned to train someone to operate the cutter. Mr Mitchell didn't watch the victimread the material before he signed it. Nor did he remember who trained the victim,although he had been "told that" Mr A had done the training.[43] The victim was interviewed by a Worksafe investigator a few days after theincident but at that stage could not remember who had trained him. He had norecollection of what happened when he woke up after the accident having been takenfrom Hawkes Bay to Waikato hospital.[44] In his evidence, the victim said he was trained by Mr A, his co-worker whohad been working on the floor using the brisket cutter for about two weeks before hetrained the victim. The victim said the leading hand, Mr Mitchell did not teach himanything but he did check on the victim once.[45] The victim said that Mr A trained him by demonstrating its use and showedhim how to do so with one hand. Initially, the victim used the cutter with two handsuntil it "got easier and it got easier and easier" and so was able to use it with one hand.Mr A trained the victim for about four hours and then there was no supervision. Thevictim said in addition to Mr A, he saw other people use it with one hand. The Judgeaccepted the victim's evidence as to the training he received. He was entitled to doso. The Judge found the victim was trained to use the cutter by Mr A using thetechnique that resulted in his injuries two weeks later.[46] I do not accept that as Mr Pilditch put it the judge "pivoted" from hisacceptance at [18] that the cutter was designed to be used with two hands to hisconclusion that the training was inadequate, because the victim received inadequatetraining on use of the cutter.[47] There was uncontradicted evidence that the instruction by the co-worker wasinadequate and the victim had been shown by the co-worker during training how touse the cutter with one hand. That supported the finding that the monitoring andsupervision of the victim was inadequate. For example, the victim's evidence was thathe was only checked on once by the leading hand while using the brisket cutter.Authority[48] The appellant submits there was no evidence that the co-worker was delegatedto train the victim. The appellant says it was an error for the Judge to rely on inferentialreasoning to conclude that the co-worker must have been delegated by someone inauthority to do so.[49] Even if the co-worker had been so delegated, the appellant submits he was notauthorised to teach one-handed use, as this was contrary to the safety protocols inplace. The appellant submits a worker cannot be acting within the scope of theirauthority when they depart from the instruction they are given on how equipment is tobe used, and therefore how a person is to be trained in the equipment's use.[50] The respondent makes three submissions in response.(a) First, that the co-worker's failings were not the only basis on which thecharge was proved. For example, the leading hand who wasresponsible for supervising the slaughter room, and who signed thevictim off as competent to use the brisket cutter, failed to adequatelymonitor the victim's use of the brisket cutter. That is attributable to theappellant.(b) Secondly, the co-worker was authorised to train the victim. The onlyinference available from the evidence is that the leading hand haddelegated responsibility for training the victim on the use of the brisketcutter to the co-worker, who was an employee of the company.Therefore s 161(2) of the HSWA applies. This attributes liability to thePCBU for conduct engaged in by an employee of the PCBU actingwithin the scope of their actual or apparent authority or by any otherperson at the direction of an employee of the PCBU given within thescope of their actual or apparent authority.(c) Finally, the respondent submits that the co-worker's failures areattributable to the appellant, because the co-worker himself breachedduties under the HSWA and/or failed to follow the appellant's mandatedtraining process. Section 33(2) of the HSWA confirms that where twoor more people have duties in relation to the same matter, each dutyholder must comply with that duty to the standard required even ifanother duty holder has the same duty. In Linework the Court of Appealexpressly rejected the submission that the conduct of an employee whobreached their own health and safety duties should not be attributed totheir employer.33[51] I accept the respondent's submissions on this point. On the evidence it wasopen to the Judge to conclude that the co-worker was responsible for the training ofthe victim. The co-worker was an employee and his failure in training are attributableto the appellant. There was ample evidence for the Judge to be satisfied beyondreasonable doubt on that issue.[52] For completeness, while the appellants say the Judge erred in failing tospecifically refer to s 161(2). I do not consider this was an error. This is an attributionprovision and it is not necessary to refer to it in order for it to be operative in therelevant circumstances. Any failure to refer to s 161(2) did not give rise to amiscarriage of justice.Contradictory factual findings[53] The second main ground of appeal is that the Judge could not have found theappellant liable for the victim's training when he had concluded that in general theappellant's systems to identify and manage hazards were robust, and its managementwell-meaning. The appellant alleges the Judge failed to recognise that his findings inrespect of the first two particulars necessarily meant the training that occurred in thevictim's case was an aberration that was not reasonably detectable by the appellant.[54] The appellant submits the Judge treated the particulars on a mutually exclusivebasis, which was an error because the findings on the first two particulars were relevantto the finding on the third. The appellant says the Judge's finding that the appellantdid not know, nor ought to have known, that the brisket cutter could be operated with33 At [38].one hand, and therefore it was not practicable for the appellant to mitigate that risk,contradicts the finding that the appellant failed to train the victim in the correct use ofthe brisket cutters. The appellant says that if the appellant could not mitigate the riskof one-handed use of the brisket cutters, because it simply believed it was impossibleto use them in this way. Therefore, it could not mitigate the risk of an employee beingshown to use the brisket cutter in a one-handed way either, seeing as that was anunknown possibility.[55] The appellant submits that Judge was satisfied that the appellant's safetysystems were adequate, indeed that they were "robust".34 Therefore given the Judgefound it had taken all practicable steps to have proper systems in place concerning theuse of the brisket cutter and other dangerous equipment, it is difficult to conceive howthe appellant could have prevented the victim from being shown how to use the brisketcutter in the way in which he claims he was trained. The appellant submits it simplyhad no way of knowing that such one-handed use was possible. Therefore, althoughthe victim may have been trained to use the cutter in that dangerous way, this was nota risk that could have been mitigated. The appellant submits it had done all itpracticably could to detect misuse through its robust safety systems, and cannot havebeen expected to know and be aware of every isolated misuse that could arise incircumstances where it believed the brisket cutter could not be operated with one handin any case.[56] This overlooks the fact that the HSWA required the appellant to do everythingreasonably practicable "on the floor of the factory while operating plant andmachinery" to ensure the health and safety of its workers. The respondent submitsthat in this context, it was the actions of the appellant's supervisors and trainers thatcounted. The respondent says they fell short, and therefore so too did their employer.[57] At sentencing, the Judge stated:35I am satisfied on what I heard that the company was driven by the need tomaintain a safe procedure in all of its work areas, but that on this occasionbecause of what actually happened the system of training broke down as aresult of human error and the legislation is designed to catch a situation as34 Conviction decision, above n 1, at [48].35 WorkSafe New Zealand v Progressive Meats Ltd [2023] NZDC 10142 at [11].that. Undoubtedly it is onerous on employers and persons in control, however,that is the statutory basis upon which the Court has to proceed.[58] This states the law correctly. Although the appellant claims that it is notresponsible for the specific failings of the leading hand or co-worker because itssystems and processes overall were compliant with the HSWA, as the Court of Appealstated in Linework:"To ask, as the appellant's counsel did, what more the employer could havedone, is to beg the question: whose acts and omissions are to be attributed tothe employer?"36[59] The HSWA provides for the statutory basis upon which liability is grounded.In this case the liability for the deficiencies in implementation of the training andsafety procedures rests with the appellant.[60] I am satisfied the Judge made no error in finding that although the appellant'ssystems and processes were robust, the implementation of the workplaces policies andprocedures on the ground were inadequate in this case. That failure exposed the victimto a risk of serious injury, which resulted in the victim suffering a serious injury. I donot accept that the Judge's findings were contradictory in the way the appellant alleges,and accordingly this ground must fail. The Judge was satisfied beyond reasonabledoubt on the fact that the training and supervision were inadequate. There wassufficient evidence for him to reach that conclusion.Conclusion[61] Both grounds of appeal fail for the reasons set out above. The Judge made noerror. Accordingly, the appeal is dismissed.____________________Grice JSolicitors:Richmond Chambers, AucklandLuke Cunningham & Clere, WellingtonWorkSafe New Zealand, Wellington36 Linework, above n 30, at [23].