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Worksafe New Zealand Mahi Haumaru Aotearoa v Waste Management NZ Ltd [2021] NZHSE 1; [2021] NZDC 12388 (29 June 2021)

Last Updated: 16 July 2021

EDITORIAL NOTE: CHANGES MADE TO THIS JUDGMENT APPEAR IN [SQUARE BRACKETS].

JUDGMENT OF JUDGE W K HASTINGS

Table of Contents

1. Introduction [01]
   
2. The Facts [09]

1. The science [12]
2. The defendant’s business [16]
3. The employees central to this prosecution [25]
4. The Haywards substation waste [33]

1. The meeting of 9 November 2016 [36]
2. The arrival of the six IBCs [43]

100. The walk-through late January/early February 2017 [51]
     4. Emails of 28 February 2017

and audit report of 3 March 2017 [56]
5. 22 August 2017 [59]

WORKSAFE NEW ZEALAND v WASTE MANAGEMENT NZ LTD [2021] NZDC 12388 [29 June 2021]

3. The Law [77]
   
4. The Law Applied to the Facts [99]

1. The first particular [99]
   2. The second particular [116]
   3. The third particular [124]
      

5. Conclusion [129]

I. Introduction

[1] [Name deleted – “the victim”] was by all accounts a well-liked and respected colleague, friend and family man. He worked for Waste Management, the defendant, at the Seaview waste disposal facility. His job title was “Operator – Environment”. He did all sorts of things at Seaview, including forklift driving, decanting hazardous waste, general tidying and cleaning, and maintenance work. On 22 August 2017, he was asked to help process the liquid contents of six intermediate bulk containers called IBCs, which are opaque plastic containers, each of which had a 1,000 litre capacity. The contents of the IBCs were poured into a pit and processed with some other material. The waste “gassed off” several times that day.

[2] [The victim] died that evening in hospital after inhaling hydrogen sulphide gas at work.

[3] As a result of an investigation by WorkSafe into the events of 22 August 2017 and preceding days, Waste Management faces two charges. They are filed in the alternative. Waste Management has pleaded guilty to a charge under s 48 of the Health and Safety at Work Act 2015 (HSWA), that it failed to comply with its health and safety duties and that this exposed its workers, including [the victim], to a risk of death or serious harm. It has pleaded not guilty to a charge under s 47 that it acted with reckless disregard to its health and safety duties thereby exposing its workers to a risk of death or serious harm.

[4] The charge under s 47 alleges that the defendant, being a PCBU with a duty to ensure so far as reasonably practicable the health and safety of its workers, engaged in conduct that exposed workers including [the victim] to whom it owed that duty, to a risk of death or serious injury “arising from the storage, handling, treatment or disposal of mercury waste containing sulphides, and was reckless to that risk.”

[5] The particulars of the prosecution case are that Waste Management acted recklessly in three ways:

• (a) by permitting waste from the Haywards substation to be received at its Seaview facility knowing that there was a real possibility that the waste could be a hazard to the health and safety of its workers, and without putting the appropriate processes in place to identify and control the hazard; and/or
  
  • (b) by directing or permitting workers to begin processing waste from the Haywards substation knowing there was a real possibility that processing that waste could expose those workers to risks to their health and safety, and without taking the appropriate steps to identify and control such risks; and/or
    
  • (c) by directing or permitting workers to continue processing the waste, knowing that there was a real possibility that doing so was exposing them to dangerous levels of toxic gas.
    

[6] WorkSafe submitted that the risk of death, serious injury or serious illness was created by Waste Management’s improper handling, storage and processing of the Haywards substation waste, and that the risk manifested itself when workers misidentified part of the Haywards substation waste and processed it incorrectly. This in turn generated hydrogen sulphide gas which [the victim] inhaled, resulting in his death.

[7] Waste Management submitted that its conduct was not reckless. Rather than having a conscious appreciation of the risk of death, serious injury or serious illness, Waste Management submitted that administrative and procedural shortcomings meant its workers were mistaken about the nature of the waste and were unaware of the level of risk it presented. Waste Management submitted its workers thought the waste was stormwater contaminated with traces of mercury. It was actually a sodium sulphide solution containing mercury and sludge. Waste Management also accepted that it failed to educate its workers to a high enough standard about hydrogen sulphide, and that it failed to adequately educate its workers about the process to follow when the hydrogen sulphide alarm was going off.

[8] I will set out the facts relevant to the recklessness charge in Part II, followed by a discussion of the law of recklessness as it relates to HSWA and this charge in Part

III. I will then apply the law to the facts in Part IV and come to a conclusion in Part V.

2. The Facts
   

[9] The prosecution produced 23 witnesses. From WorkSafe they were Lee Anne Milne, investigations manager; Philippa Gibson, Russell Young, Stephen Baddock and Rene Schiphorst, WorkSafe inspectors; and Rod Dickson, WorkSafe technical specialist, hazardous substances. From Waste Management they were the branch manager Paul Ward, the chemist Frank Pessina, yard supervisor Ryan Abrahams, dispatch co-ordinator Adam Bolt, truck driver [name deleted – the truck driver], [worker A] who was on a work placement and [worker B] who mainly decanted hazardous goods for disposal. Also giving evidence for the prosecution were John O’Grady and Donald Iggulden, project managers at Contract Landscapes Limited (CLL). The prosecution also produced Simon Hunt, environmental protection officer, Greater Wellington Regional Council; [name deleted], gas sensor installer, calibrator and monitor [gas sensor installer]; Daniel Gething, station officer, Fire Emergency New Zealand; and [name deleted – the paramedic], a Wellington Free Ambulance paramedic. The evidence of Benjamin Wylie-Cheer, field operations manager, Wellington Free Ambulance; Helen Poulson, ESR analyst; Ben Bogan, ESR forensic scientist; and Erina Mayo, ESR forensic scientist, was read.

[10] The defence produced one witness, Ross O’Loughlin, a Waste Management

supervisor.

[11] The immediate cause of [the victim]’s death was hydrogen sulphide gas created by a chemical reaction when the contents of six IBCs were poured into a pit at Waste Management’s Seaview facility for treatment. I will therefore first set out the science that explains how this particular chemical reaction happened. I will then discuss in general terms the defendant’s business, the employees WorkSafe alleges were reckless, and specifically what happened to the six IBCs from the Haywards substation before and on 22 August 2017.

1. The science
   

[12] An explanation of the chemistry involved in treating this waste is required to understand the consequences of the actions of Waste Management’s employees. Contract Landscapes Limited (CLL)1 used sodium sulphide to remove mercury from the Haywards substation so that the substation could be demolished safely. This waste in turn needed to be treated so that it could be disposed of safely. If the waste consisted of water with trace amounts of mercury not harmful to human health, it could be disposed of without treatment into trade waste.2

[13] The waste in the six IBCs, however, actually contained sodium sulphide solution and a mercury sulphide precipitate.3 The sulphide solution is heavily alkaline, meaning it has a pH4 above 7. In this case, the solution was described as having a pH “much higher than 7.”5 Alkaline substances can generally be mixed with other alkaline substances without causing a reaction.6

[14] Acids, those with a pH below 7, such as zinc ammonium chloride (ZAC),7 can generally be mixed with other acids without causing a reaction. ZAC will dissolve in water and will produce some acidity as a result.8 When acidic substances are mixed with alkaline substances however, a reaction occurs. A sulphide solution, which is alkaline (with a pH above 7), can react with acidic substances (those with pH below

7) to release hydrogen sulphide gas.

1 Contract Landscapes Limited (CLL) “took over Contract Environmental Limited (CEL) and CEL became a trading arm.” NOE 135, O’Grady. Occasionally, witnesses referred to CEL and CLL interchangeably.

2 NOE 369, Pessina.

3 This is agreed fact 25 in the agreement pursuant to section 9 of the Evidence Act dated 30 November 2020.

4 The term pH is an acronym for the power or potential of Hydrogen. “pH” is a scale used to specify the acidity or alkalinity of a solution on a logarithmic scale on which 7 is neutral, lower values are more acid and higher values more alkaline. The pH is equal to -log10c where c is the hydrogen ion concentration in moles per litre.

5 NOE 652, Dickson.

6 The word “generally” is used because, to put it in Rod Dickson’s words, “the more vegetables you add to the soup, the more is there and the different flavours that might result. So as you add more ions of different types the complexity of the situation increases in terms of trying to predict what’s going to happen chemically. There are a number of possibilities.” NOE 655, Dickson.

7 NOE 651-2, Dickson.

8 NOE 656, Dickson.

[15] The aim of treating waste containing heavy metals is to get the waste to a pH level at which sodium sulphide can be added to precipitate the heavy metal.9 At pH 9, mercury10 precipitates, or falls, out of solution. To dispose of mercury waste safely, it must reach pH 9 so that the liquid no longer contains mercury. The liquid is then removed from the pit in which it was treated and can be safely discarded as trade waste.

2. The defendant’s business
   

[16] The business of Waste Management is the treatment of waste. It has a liquid and hazardous waste treatment and disposal facility at Seaview.

[17] One of the conditions of Waste Management’s resource consent at Seaview to operate “a liquid and hazardous waste processing facility” was to “maintain records of the waste materials received and treated on site.”11 The resource consent also required Waste Management to monitor emissions, including hydrogen sulphide, and to have an audible alarm if the emission of hydrogen sulphide exceeded 20 parts per million (ppm). The consent required Waste Management to “cease operation until such time as the monitor shows that the contaminants have returned to concentrations that are below the limits imposed.”

[18] The Seaview facility consists of buildings and sheds built around a yard. Building 2 contains two pits which are used to treat waste containing heavy metals. Each pit in Building 2 is 2.5 metres deep and has a capacity of 18,000 litres. The pits are about 2.5 metres from the entrance of the building.

[19] Building 2 has two gas sensors, one to detect hydrogen sulphide and one to detect hydrogen cyanide. The hydrogen sulphide sensor is 3.5 metres up a wall located 16 metres from the pits. Each sensor communicates to a monitor that is located in Building 1, immediately adjacent to Building 2.

9 NOE 583-4, Abrahams.

10 The chemical symbol for mercury is Hg, derived from the Latin hydragyrum, or liquid silver. Mercury is often called quicksilver for this reason.

11 Exhibit 2, tab 7, p 11, resource consent dated 8 September 2014.

[20] The hydrogen sulphide sensor works in a 0-50ppm range. The Workplace Exposure Standard (WES) for hydrogen sulphide on a time-weighted average for an eight hour shift is 10ppm. The WES also has a short term exposure limit (over 15 minutes) of 15ppm. If hydrogen sulphide reaches a concentration of 10ppm, an alarm sounds. If it reaches a concentration of 15ppm, further alarms sound. If it exceeds 50ppm, the sensor will show a reading of 50ppm regardless of how high the concentration actually is. The WES relates to exposure measured in a breathing zone within a 300mm radius in front of the face. The location and immobility of the hydrogen sulphide sensor in Building 2 could not have measured the concentration of hydrogen sulphide within the breathing zone of any particular person working at ground level by the pits.

[21] When waste needed to be picked up, a driver would be told, either by Mr Bolt the dispatcher or Mr Ward the branch manager, what the waste was and where it was to be picked up from.12 Drivers would be given a runsheet setting out these details which would be put on a clipboard in each driver’s personal tray.13 The appropriate transport would be used, such as a “curtainsider” or a tanker truck for liquids. At the job, the driver would complete a yellow service docket recording what was picked up. It would be signed by the customer and given to Mr Bolt when the driver arrived back at Seaview.14 External signage in the form of picture plaques would be put on the truck to identify any hazardous material being transported.15 On the way back, [name deleted – the truck driver], a driver for Waste Management, said he would generally give Mr Abrahams as “head yardie ... in charge of logistics inside the yard” a “heads- up” about what he was transporting so that he knew what was arriving, when it was arriving, and where it would go.16

[22] A system called the SmartTransport system was used to schedule the collection of waste. It generated a document that recorded the type of waste being picked up.17 Mr Bolt said he would use the service docket to enter what was picked up into the

12 NOE 443, [name deleted – truck driver].

13 NOE 447, [truck driver]; Exhibit 2, tab 45, p 766.

14 NOE 318, Bolt.

15 NOE 446, [truck driver].

16 NOE 442, [truck driver].

17 NOE 316, Bolt; Exhibit 2, tab 29, p 493.

computer system for the purpose of generating an invoice for the customer.18 He would also use this information to create a destruction certificate. Destruction certificates were used by Waste Management to record the receipt of waste rather than its destruction. Mr Bolt said this was because “the day it came into our yard was considered the day that it was destroyed.”19 Mr Bolt confirmed that the information entered into SmartTransport is the information that is shown on the invoice to the customer.20

[23] Mr Pessina, the chemist, would triage the waste by taking and testing samples within 24 to 48 hours to make sure the waste matched the dangerous goods paperwork. The waste would be quarantined between Buildings 5 and 6 until Mr Pessina could test it.21 He would then designate the area the waste was to be placed for treatment.22

[24] Heavy metal waste products in solution are treated by adjusting the pH of the pit contents with chemicals to neutralise them. An excavator is positioned behind each pit. Its bucket is used to add various chemicals to the pit, to mix the contents of the pit, to raise contents of the pit for testing, to add sawdust to the pit, and to remove neutralised waste sludge from the pit for disposal in a landfill. Neutralised liquid waste is discharged into the trade waste system operated by Hutt City Council.

3. The employees central to this prosecution
   

[25] The defendant Waste Management is a body corporate. It can only act through human agents. The human agents critically involved in this prosecution are not directors of the defendant, but are rather three of its employees. They are Ryan Abrahams, Paul Ward and Frank Pessina. Their position, training and responsibilities are described as of 22 August 2017, the day of the incident.

[26] On 22 August 2017, Ryan Abrahams was the yard supervisor at Waste

Management’s Seaview site. He was on site at the time of the incident. He had been

18 NOE 318, Bolt; Exhibit 2, tab 29, p 497, invoice dated 28 November 2016 for waterbased waste from Haywards.

19 NOE 321, Bolt.

20 NOE 331, Bolt, referring to Exhibit 2, tab 29, pp 493 and 497.

21 NOE 577-578, Abrahams.

22 NOE 349, Pessina.

in that role for about three years and had worked for Waste Management since June 2012. He had four or five workers “working under or along with” him in that role.23 He said knew some basic chemistry: “I understand that pH in terms of 7 being neutral, below 7 being acidic and above 7 being caustic. I also know that you add caustic to bring the pH up and you add acid to bring the pH down and I was familiar with this process.”24 He also received an approved handler test certificate in the “handling of substances during Waste Management technical services waste recovery processes” on 30 April 2016 and a certificate of attendance at a risk awareness training session on 2 March 2017. He said he could not remember if they talked about gasses in the former course, or the specifics of what was covered in the latter course.25 When asked if he had been trained about what to do if the gas alarm went off, he said, “not officially, I don’t think there was any official training on if that alarm went off.”26

[27] Mr Abrahams described monthly toolbox meetings conducted by Paul Ward. Mr Abrahams said these meetings consisted of topics passed on by head office as well as issues raised by staff.27 He said employees also followed their health and safety process called SLAM – Stop, Look, Assess, Manage. In practical terms, he said this meant that if anything unexpected arose, he would get in touch with Mr Ward or Mr Pessina, and sometimes other experienced staff, to find out what needed to be done.28

[28] Mr Abrahams said if they were not sure what the waste was when it arrived, it would get quarantined for a while until Mr Pessina could test it. The waste would be quarantined in a certain area between buildings 5 and 6. Once Mr Pessina confirmed that the waste was what it was supposed to be, he would direct where it would be stored until it was treated. He said if a particular product had come in a lot from the same customer with the same packaging, and Mr Pessina had tested it, “we got used

23 NOE 525, Abrahams.

24 NOE 524, Abrahams.

25 NOE 594-595, Abrahams.

26 NOE 566, Abrahams.

27 NOE 554, Abrahams.

28 NOE 554, Abrahams.

to it” and “we would feel comfortable to then label it and deal with it without then testing.”29 This was the case with heavy metals.30

[29] Mr Abrahams said that Mr Pessina initially supervised him when he treated ZAC, but after a while, he “felt entirely comfortable to process ZAC by myself and did so often.”31 Although Mr Pessina said he would let Mr Abrahams process waste only up to the point it reached pH 9, Mr Abrahams said Mr Pessina had given him “testing kits for the heavy metal stuff”, access to Building 7 where sodium sulphide was kept, and said Mr Pessina “definitely knew that I was doing the entire process without his input.”32

[30] Ryan Abrahams reported to Paul Ward. On 22 August 2017, Paul Ward was the branch manager at Waste Management. His office was at Seaview, although he was not on site on 22 August 2017. Mr Ward said he had “no chemistry background.”33 He said he was in charge of “profit and loss”, “the day-to-day management of the branch, the people, the recruitment, the running of the office and things ... reporting lines of staff, management of the fleet ... general maintenance and condition of the main buildings and operations.”34 He had 15 to 20 people reporting to him, including from the satellite branch in Palmerston North.35 He said Ryan Abrahams reported to him “but for day-to-day exception of waste and management he was under the guidance of a chemist.”36 He said the identification of chemical risks was beyond his level of expertise.37 He said in general he would not have been told in advance of waste coming in that might be hazardous to health.38 When asked who made the call about what to process on a day-to-day basis, he said “ultimately it was Frank [Pessina] but if Ryan [Abrahams] wanted to get rid of or process certain

29 NOE 578, Abrahams.

30 NOE 580, Abrahams.

31 NOE 575, Abrahams.

32 NOE 576, Abrahams.

33 NOE 256, Ward.

34 NOE 253, Ward.

35 NOE 254 Ward.

36 NOE 254, 267 Ward.

37 NOE 255 Ward.

38 NOE 270 Ward.

materials he’d be communicating with Frank.”39 If Mr Pessina was away, Mr Ward

said “some minor processing was done but in general the stock backed up.”40

[31] Although Paul Ward had no chemistry background, he received an in-house e- learning “safety essentials” certificate of completion on 23 August 2012; a Waste Management certificate of attendance for emergency awareness training on 5 September 2012; certificates of attendance for emergency warden training on 16 January 2014, 26 March 2015 and 19 July 2016; Waste Management statements of attendance for training in site emergency awareness on 26 January 2017 and risk awareness on 13 March 2017 and an undated certificate in HSNO advanced training. He said he “vaguely” remembered this course and believed it was “a day course or a half day course and it was a generic training and it had multiple industry people in it.”41 There are also two documents that appear to be debriefings or assessments: the first is a debriefing dated 26 March 2015 and relates to a chemical spill resulting in a fire; the second is an assessment about fire hazards generally dated 20 July 2016. It appears to be related the emergency warden training certificate dated 19 July 2016.

[32] Frank Pessina was employed by Waste Management as the chemist at the Seaview site. He had been in that role since 2003. He said in 2017 he was the only staff member onsite with chemistry training and knowledge. He graduated with a Bachelor’s degree in chemistry and biochemistry from the University of Zimbabwe in 1990. He reported to Paul Ward. He said he would generally find out what was coming into the site from Pat Fabish, Paul Ward and sometimes Adam Bolt. He said when waste arrived at the inwards goods area he would check it, code it and send it to an area he designated.42 He would take samples to make sure it matched the dangerous goods documentation that accompanied the waste.43 He said hazardous waste and heavy metals would not be processed unless he was onsite, and it was his decision, not Mr Abrahams’, to process such waste.44 If he was offsite, he said the processing of hazardous waste and heavy metals would have to wait until he returned.45 Mr Pessina

39 NOE 276, Ward.

40 NOE 277, Ward.

41 NOE 290-292, Ward.

42 NOE 345-346, Pessina.

43 NOE 346, Pessina.

44 NOE 360, Pessina.

45 NOE 360, Pessina.

said he would “never allow him [Mr Abrahams] to treat something where you’ve got to add sulphide to it, you know, because that would be locked in my shed and ... he’s not a chemist.” He said he would allow Mr Abrahams to treat heavy metals without direct supervision if he had done it several times before, but he would still be onsite and the treatment would only be up to the point it reached pH 9.46 He said he would test the waste before it was removed from the treatment pit to ensure it was at pH 9 and that there were no metals left in the solution.

4. The Haywards substation waste
   

[33] Waste Management had experience in disposing of waste from electrical substations. In 2015, Contract Landscapes Ltd (CLL) was involved in the clean-up of the Benmore power station in Otago. CLL contracted Waste Management’s Christchurch branch to dispose of the waste from the Benmore clean-up.

[34] In 2016, CLL was again involved in the clean-up of an electrical substation, this time the Haywards substation near Lower Hutt. In June 2016, emails between Colin Berkett, the Christchurch branch manager of Waste Management, Pat Fabish the key account manager lower North Island for Waste Management, and Dean McGregor the key account manager South Island for Waste Management, anticipated tendering for the Haywards substation contract. They attached the Benmore clean-up quotes to these emails so that the Haywards quote could be consistent with the Benmore job.47 Waste Management won the contract from CLL.

[35] The waste CLL delivered to Waste Management at the Seaview facility was from the Haywards job. The presence or absence of knowledge of what was in six IBCs received from the Haywards job is central to this case.

46 NOE 360 Pessina.

47 Exhibit 2, tab 48, p 773, email of 22 June 2016 from Colin Berkett to Dean McGregor.

1. The meeting of 9 November 2016
   

[36] On 9 November 2016, John O’Grady and Don Iggulden, the project managers of the Haywards clean-up, met with Paul Ward, the branch manager of the Seaview facility. Mr O’Grady explained what the Haywards waste streams were:48

We sat there for quite a long time. I took with me the previous quotation and request for quotation from Benmore. I also took with me the Benmore wrap up report, the final report we’d just been reading from and I also took with me the part of the tender documents that the consultant had prepared that we had put a bid on relating to the technical nature of the clean-up. I went over the whole thing very thoroughly. I explained the nature of all the waste streams and then I invited Paul to make copies of whatever he needed to make copies of and he went off and did that, which took quite a while. We were having a cup of tea, I was with the guy Don, and we waited quite a while and he came back satisfied, or he seemed to be satisfied and gave us the materials we’d given him to copy.

[37] Mr O’Grady also said he thought Mr Ward was “very good” at the meeting.49

When he was asked why he thought that, he said:50

Oh, just his, he understood what we were talking about. He would, he asked lots of questions, he needed, he did want to know. Like, he did want to know, which is important when we’re doing this sort of work. Some people just, sort of a little bit ho-hum. He wasn’t ho-hum. He seemed to take his job quite seriously and wanted to understand and was happy to ask a question.

[38] Mr Iggulden described the purpose of the meeting:

17. So what was the purpose of the meeting, why were you providing all this information?
    

48 NOE 160, O’Grady.

49 NOE 242, Iggulden.

50 NOE 243, Iggulden.

A. To my mind we weren’t there for a quote we were there just to let them know what we were bringing into them, make sure they were aware what we were taking – sending into them, you know, we had a product that was possibly quite dangerous and making sure that that they were aware of what they were receiving, how they were receiving it and what they wanted of us and what we needed of them.

Q. Did you discuss anything specific about the dangerous products?

A. Yeah, John did more than me, I was an observer that side of it, I shut the trap when it comes to that side of it but, yes, that was what was gone through with what the product was, yeah, what the product was, what its dangers were and we had the paperwork that we handed to them and they took away and photographed or he took away and photographed – photocopied, sorry, of it but brought it back to us but he was away for some time looking through it and we read through it. Everyone had a good understanding of what we were doing.

[39] Mr Ward said he recalled the meeting, but could not remember what had transpired.51 He said he remembered meeting with Mr O’Grady and Mr Iggulden, but said “I can’t remember anything beyond that”.52 He agreed that there “would have been discussion around the waste materials but said he could not recall anything “consequential” and could not recall receiving any documents from Mr O’Grady.53 He was asked what he would have done with information from Mr O’Grady and Mr Iggulden that Waste Management was to receive sodium sulphide that had been used to clean mercury from the Haywards substation floors:54

A. I do have a vague recollection of after the meeting speaking with Frank and that’s what I should have done is communicated to the chemist about the waste materials coming in and advising that it will be coming in.

51 NOE 295-296, Ward.

52 NOE 295-298, Ward.

53 NOE 296, Ward.

54 NOE 298, Ward.

Q. So you can’t remember but whatever John and Don told you you’re saying

you would have communicated to Frank Pessina?

A. Yes

Mr Pessina on the other hand said that Mr Ward “might have” talked about the waste coming in from the Haywards substation, “but he didn’t mention anything to do with sodium sulphide.”55 Mr Pessina said Mr Ward “might have said there’s mercury waste coming in, because as far as I understand what was coming in, it was water with a small amount of mercury in it.”56 There was certainly a discussion about the waste streams at the meeting with Mr Ward, and Mr Ward would have received documentation about them during the meeting. What is less certain is whether the existence of sulphide in one of the six waste streams was particularly emphasised and whether Mr Ward appreciated at the time its significance.

[40] The CLL report on the Haywards substation project dated March 2017 records six waste streams from the Haywards substation clean-up. The waste streams consisted of solid asbestos waste (tiles and mastic); liquid asbestos waste (mastic remover liquid); solid mercury contaminated waste (broken concrete, rags, mops and PPE); liquid mercury waste (a mixture of sodium sulphide and sodium carbonate in solution, and mercury sulphide precipitate formed when the sodium sulphide reacted with mercury); doors containing asbestos; and contaminated water (stormwater slightly contaminated with mercury following the storm).57

[41] The sodium sulphide solution was used by CLL to remove mercury contamination from the Haywards substation buildings. It was poured into contaminated parts of the substation and used to scrub walls.58 Mr O’Grady said he remembers making up the equivalent of 6 IBCs of sodium sulphide solution to clean up the mercury contamination. He said a lot of this would have been lost when it was

55 NOE 369, Pessina.

56 NOE 369, Pessina.

57 Exhibit 2, Tab 27, p 318.

58 NOE 138, O’Grady.

applied to the substation buildings and soaked up by the rags and mops used in the cleaning process.59

[42] The Haywards site was readied for the clean-up, but five days after the meeting, on 14 November 2016, it was flooded in a storm.60 Mr O’Grady emailed Mr Ward about whether Waste Management could receive the stormwater contaminated with small amounts of mercury. This effectively added a seventh waste stream, another one containing mercury, that was arriving from the Haywards site. He attached a testing report on the stormwater to the email. Mr Ward forwarded the email to Mr Pessina. The stormwater was referred to as “mercury water” in Waste Management’s records61 when it was picked up on 22 November 2016 by vacuum tanker trucks. This “mercury water” was tested by Mr Pessina who confirmed the mercury contamination levels were as low as CLL had determined by its own testing. Mr Ward emailed Mr Pessina on 18 November 2016 to ask if the mercury water was “ok for trade waste?” It was disposed of directly into Waste Management’s trade waste without treatment because the low levels of mercury made it not hazardous.

2. The arrival of the six IBCs
   

[43] When the mercury decontamination process was completed, the remaining liquid was vacuumed up and put into IBCs. Mr O’Grady’s evidence was that these IBCs would have contained sodium sulphide solution, but also “dirt and grime from cleaning the pits [and] bits of concrete”.62 Mr Iggulden said that they would have also contained small quantities of storm water that had not been removed by the vacuum tankers.63 The IBCs containing the sodium sulphide solution were marked with the standard skull and cross bones and bar being eaten away by acid pictograms to indicate “toxic” and “corrosive” respectively. There is a photograph in the CLL report of one side of an IBC spray-painted in red with the letters “HG WASTE” to distinguish the mercury-based waste stream from the asbestos-based waste stream (Hg being the

59 NOE 143-144, O’Grady.

60 NOE 176-178, O’Grady.

61 NOE 330, Adam Bolt, Waste Management’s dispatch coordinator; exhibit 2, tab 29, pp 503-505.

62 NOE 144, O’Grady.

63 NOE 238-239, Iggulden.

chemical symbol for mercury).64 The red painted letters would not have assisted in distinguishing between the two mercury-based waste streams.

[44] The waste disposal section of the CLL report states that the liquid mercury waste was placed in IBCs65 but it does not state what the contaminated water was put into. However, the destruction certificate appended as Appendix H to the CLL report refers to three IBCs of “heavy metal waste” and 35.2t of “water based waste”. Having made up 6,000 litres of sodium sulphide solution, and losing much of it in the clean- up process, Mr O’Grady thought the recording of three IBCs of liquid mercury waste on this destruction certificate was probably correct.66

[45] There is no record of three IBCs actually arriving at Seaview from Haywards. There is, however, a Waste Management run sheet dated 30 January 2017 which shows that 6,000 litres (equivalent to 6 IBCs) of “mercury water” described as “waterbased waste” were picked up from the Haywards site.67 This is the description used earlier, in November, when the stormwater containing traces of mercury from the Haywards site was received at the Seaview facility. There is therefore a link between the words used to describe what was picked up on 22 November 2016 and the words used to describe what was picked up on 30 January 2017.

[46] Adam Bolt, variously described as the dispatch co-ordinator and transport supervisor, explained that these were automatic descriptions based on a pre-set menu. He said he likely selected “mercury water” on 22 November 2016 because this seemed the best fit for what was being picked up from the Haywards site.68 Mr Bolt said the selection of “mercury water” in the SmartTransport document, would automatically generate the description “water-based waste” on a subsequent invoice.69

[47] As well as the run sheet dated 30 January 2017 referring to 6,000 litres of mercury water, there is a SmartTransport document dated 30 January 2017 that records a job to “collect 6 x IBC” from Contract Landscape described as “Mercury Water”,

64 NOE 144-145, O’Grady; exhibit 1B, tab 27, p 315.

65 Exhibit 2, tab 27, p 318.

66 NOE 143-144, 184-185, 206-207, O’Grady.

67 Exhibit 2, tab 45, p 766.

68 NOE 338, Bolt.

69 NOE 339, Bolt.

with the waste column filled in as “Mercury” and the quantity column filled in as “6,000 kg”.70 Mr Bolt said the waste column was a selection and could not be typed in by him.71 The tax invoice to CLL dated 31 January 2017 records 6,000 kilograms of “WATERBASED WASTE”, which is the equivalent of 6,000 litres, or 6 IBCs, and refers to the same service docket and contains the same invoice notes as the SmartTransport document.72

[48] The CLL report records the last mercury waste of any description was removed from the Haywards site by 20 February 2017.73

[49] The most logical inference that can be drawn from these documents is that the mercury waste containing the sodium sulphide solution that arrived at the Seaview facility from the Haywards site was contained in the six IBCs that arrived on 30 January 2017. It was misidentified as water-based waste as a result of the initial receipt of “mercury water” on 22 November 2016 being entered in Waste Management’s computer system, a description that was accurately applied to the stormwater received from the Haywards site in November 2016, but inaccurately applied to what was actually in the six IBCs that likely arrived on 30 January 2017.

[50] Any reference to “Hg waste” on one side of the IBCs would not necessarily have alerted anyone after the IBCs were received to the fact that the IBCs contained the sulphide solution that was used to clean up the mercury contamination at the Haywards site. Nor is the fact that six IBCs were received necessarily inconsistent with Mr O’Grady’s assessment that the three IBCs noted on the destruction certificate was probably correct. His evidence of how much sodium sulphide solution would have been left, the amount of other material that would have been added to the IBCs and Mr Iggulden’s reference to the IBCs being topped up with stormwater were phrased in terms of estimates rather than accurate assessments. Any of these estimates could have increased the number of IBCs needed to contain the waste or the proportion and concentration of sulphide solution in each IBC. I do not think therefore that the discrepancy between Mr O’Grady’s evidence and the number of IBCs actually

70 Exhibit 2, tab 29, p 503.

71 NOE 332, Bolt.

72 Exhibit 2, tab 29, p 511.

73 Exhibit 2, tab 27, p 313.

received at the Seaview facility affects the credibility of Mr O’Grady’s evidence. What is beyond reasonable doubt is that six IBCs marked “Hg WASTE” arrived no later than 20 February 2017, but probably on 30 January 2017, at the Seaview facility containing sulphide solution that was recorded as mercury water in the Waste Management system.

100. The walk-through in late January or early February 2017
     

[51] Mr Pessina was on leave for about six weeks in December 2016 and January 2017. He said when he is away, the work builds up. When he returned from leave, he walked through the west yard at Seaview with Mr Abrahams. Mr Pessina said he noticed the IBCs that contained the sulphide solution, but he did not realise they contained sulphide solution.

[52] He said the IBCs were labelled “Hg for mercury indicating they had water contaminated with mercury in them.”74 He misidentified them as containing mercury water because he said he knew mercury water had previously come from the Haywards site. Even though the mercury contaminated water had arrived in tanker trucks in November, the fact that these were IBCs “didn’t really trigger any alarm bells” because he thought “maybe this was the last of it and that’s why they put it into IBCs.”75 He said he did not know to expect IBCs containing sulphide solution and did not see them arrive.76 He also said he did not see any labels or markings on them, and their contents looked clear. He said that if the contents of the IBCs had been dark or discoloured, he would have identified them as containing a sulphide solution because he knew sodium sulphide was used to clean up mercury. He acknowledged the possibility that the contents were clear because the sediment had settled. He said he paid attention to the integrity of the IBCs, and what he thought their contents were. He said that on the basis of his observations that day, he decided that the IBCs were safe to leave while he tried to catch up on the backlog of work that had accumulated while he was on leave. He did not test their contents. He said he directed Mr Abrahams to move the IBCs to area 9 because “there was no reason for me to believe

74 NOE 374, Pessina.

75 NOE 374, Pessina.

76 NOE 374, Pessina.

that it was not water”, the IBCs “all looked of good quality” and “the liquid inside appears safely contained within IBCs.”77 If he had known they contained sodium sulphide, he said he would have had them moved to building 7 where he stored “anything that is extremely hazardous and has a nature to give off hazardous gasses like sulphides and cyanides would be stored in there and I’m the only to access or that.”78

[53] Mr Abrahams remembers seeing IBCs with “Hg waste” written on them in orange paint when he walked through the yard with Mr Pessina. He said “I knew this was the symbol for mercury and I understood this was mercury water, meaning mercury mixed in water.”79 He said he could not remember when he was told that it was mercury water inside the IBCs, but it was “definitely” Pat Fabish and Paul Ward, and he was “pretty sure” Frank Pessina was involved in the conversation. He said the conversation would have been when they sent empty IBCs to the customer who would fill them with waste and return them to Waste Management. He said he did not remember these particular IBCs arriving back. On the walk-through, Mr Abrahams said “we did not specifically talk about processing the mercury water at a certain time. That was because I understood there was more mercury water that was going to arrive onsite and it made sense to wait until all of it had arrived before processing it together.”80 He said the IBCs were moved to the area marked “A” and sat there until 22 August 2017.

[54] Both Mr Abrahams and Mr Pessina remember a discussion they had when they walked through the yard that day. Mr Abrahams said that “Frank told me to shift the IBCs with mercury water in them to the area marked ‘A’ [area 9]. I remember that I asked Frank how we go about treating the mercury water.”81 He said “this is a general question as I have not been involved in treating mercury water before.”82 The question, however, appears to have been asked immediately after Mr Pessina told Mr Abrahams to shift those particular IBCs, and the question was about the contents of

77 NOE 382, Pessina.

78 NOE 384, Pessina.

79 NOE 581 Abrahams.

80 NOE 585 Abrahams.

81 NOE 583, Abrahams.

82 NOE 583-584, Abrahams.

those particular IBCs. Mr Pessina replied that you would bring the pH up to 9 and add sodium sulphide to kill the mercury.83 Mr Abrahams said he considered Mr Pessina’s response to be advice specific to these IBCs. He agreed that the advice Mr Pessina gave on the walk-through aligned in his mind with how he would normally treat heavy metal.84 Mr Pessina said he interpreted the request as a general inquiry rather than specific advice and authorisation.85 Mr Pessina said:86

The appearance of the IBCs that I saw in early 2017 was not consistent with them containing a 6% sulphide solution. Any sulphide solution to that concentration appears discoloured in an IBC. If I had seen IBCs labelled as mercury and they were dark or discoloured I would have instantly assumed it contained sulphide solution as I know sulphide solution can be used to clean up mercury. There is no way the IBCs I saw in early 2017 had the appearance of a sulphide solution. If there was any suggestion to me that they might contain sulphide through the appearance or otherwise I would have been careful to instruct Ryan about where the IBCs could be placed inside and I would have prioritised my testing of the IBCs to confirm the contents but what I saw was consistent with them containing water just like the floodwater received in 2016. I therefore considered they were safe to leave until I had an opportunity to test them and confirm the contents before disposing of them via the trade waste. Given the backlog of tasks that I had to do after taking leave in early 2017 I never had the chance to do this.

[55] Mr O’Grady gave evidence that the sulphide solution may have been less than 6%, around 3.6%.87 Mr Pessina said that would have made the contents of the IBCs even lighter: “You won’t even know it’s sodium sulphide, you’ll think it’s water.”88 In any event, both men appeared to be operating on the assumption that the IBCs contained mercury water and not a sulphide solution.

83 NOE 584, Abrahams.

84 NOE 609, Abrahams.

85 NOE 384, lines 12-20, Pessina.

86 NOE 384-385, Pessina.

87 NOE 183, O’Grady.

88 NOE 385, Pessina.

4. Emails of 28 February 2017 and audit report of 3 March 2017
   

[56] On 28 February 2017, Mr Ward and Andrew Licence at CLL exchanged a number of emails that discussed invoicing the waste that had been received at Seaview, and amending the destruction certificates to reflect what CLL believed they had sent to Seaview. Contrary to what was said on their face, the destruction certificates did not record the destruction of waste; they were used essentially as acknowledgements of receipt of the waste material recorded on them.89 The destruction certificate numbered 14090 for job 2312133 records “Mercury Heavy Metal Waste 3 X 209L + 792kg”. It does not record water based waste. The next destruction certificate numbered in sequence is 14091, which includes job 2312133 amongst five other jobs, and records “Heavy Metal Waste 792kgs, plus 3 drums.” It records 35.2t water based waste. There is then another destruction certificate without a number, but for the same job numbers as recorded on certificate numbered 14091. This certificate records “Heavy metal Waste IBCs x 3” and “Heavy Metal Waste 792kgs”. It also records 35.2t water based waste. Mr Ward was asked why the reference to three drums was changed to three IBCs. The implication in the question is that the unnumbered destruction certificate comes chronologically after 14091. There is no specific reference to the reason for this particular change in the associated emails, and Mr Ward said he could not recall why the reference to three drums was changed to three IBCs.

[57] Mr Ward participated in an audit on 21 February 2017, one week before this email exchange, that noted the Seaview facility was “unable to produce an up to date HSNO register or types/quantities of what was on site and/or processed”.90 The report is dated 3 March 2017, four days after the email exchange.

[58] The IBCs remained in area 9 for the next six months. Their contents were not tested. They do not appear on any stocktakes from the period produced as evidence.

89 NOE 300-304, Ward.

90 Exhibit 2, tab 25 p 256.

5. 22 August 2017
   

[59] On 22 August 2017, Mr Abrahams decided to process what he said he thought was the mercury water in the IBCs. Mr Ward and Mr Pessina were working away from the Seaview site. Mr Abrahams said he got to work about 7.10am and had coffee and breakfast with [the victim]. He said this was their morning routine. They went into the yard between 7.30 and 8 o’clock and decided they would treat the IBCs and the remaining ZAC.91 He said other ZAC had been treated about 10 days earlier by Frank Pessina and [the victim], who had mixed the ZAC with copper and processed it in the pit. He said he had asked someone about “the mercury water” again at some stage before 22 August 2017, but he could not remember who or precisely when.92 He said the result of that conversation was that they were not going to receive any more mercury water. He said, “putting that knowledge together with what I had in January or February ... when talking to Frank, I thought the mercury water could now be processed given that it was all on site and Frank had told me that it was treated like some other heavy metals. I also thought we could mix it with ZAC and process it together, a regular process that I was familiar with and had done before.”93 He said he could not recall the specific conversation he had with [the victim], his “right hand man,”94 but said it would have been along the lines of “hey, what do you think about doing this” or “hey, shall we get this”.95

[60] Mr Abrahams said he “got [name deleted – worker C] and [the victim] to put the ZAC into one of the pits in building 2.”96 The pit reaction chemistry document issued on 12 September 2017 records that “5,500L of bund washings containing 1% w/v ZAC” was emptied into pit 1 between 8.45 and 9 o’clock.97 Morning tea was between 10 and 10.30. The pit reaction chemistry document then records that between

10.30 and 11.00, “6,000L in 6 IBCs of mercury washings containing 7.3% w/v sodium

sulphide (0.94 mol.L-1) and 1.5% w/v sodium carbonate (0.14 mol.L-1) from

91 Zinc Ammonium Chloride.

92 NOE 586-587, Abrahams.

93 NOE 587, Abrahams.

94 NOE 589, Abrahams.

95 NOE 589, Abrahams.

96 NOE 589, Abrahams. Although [worker C] was present at the time of the incident and a summons was issued for him to appear, he was not a witness in this prosecution.

97 Exhibit 2, Tab 33, p 569.

Transpower haywards substation clean-up. Mixed with excavator in pit.” The document also notes that each IBC contained “about 50L of settled black sludge including insoluble mercuric (II) sulphide, HgS(s) totalling 300L.”

[61] ZAC is acidic. Sodium sulphide is alkaline. When mixed, they react to produce hydrogen sulphide. The hydrogen sulphide sensor installed in building 2 recorded this reaction. At 11.07 the reading reached 10 parts per million (ppm) and an alarm sounded. The reading went to 15ppm within about 30 seconds,98 triggering a second alarm. At 11.09, the reading was 49.9ppm. The sensor records up to 50ppm. The reading did not drop below 10ppm until 11.18.

[62] This was the first of five times that day that hydrogen sulphide gas was produced to sufficient levels to trigger the alarm. Accounts differ about how many times the alarm sounded that day, but it did sound. Although [the paramedic] who arrived at Seaview in response to the 111 call at 3.15pm, said she did not hear any alarm,99 Mr Abrahams remembers it went off three times, and [worker A] remembers three or four times.100 Each time the alarm sounded, the workers would leave the building in which the pits were located and wait outside until the alarm went off when it was reset.101

[63] Mr Abrahams was monitoring the alarm control panel each time the alarm went off.102 When the gas levels dropped below the trigger levels, he said he would hit the reset button. The reset button would turn off the alarms only if the gas reading was below 10ppm.103 The alarm would continue even if the gas reading was below trigger levels until the reset button was pushed.104

[64] Mr Abrahams tested the pH of the contents of the pit. He said he did this, “like usual, by having [worker C] scoop some of the solution up in the bucket of a digger and dip- stick the contents of the bucket.” He said they would always wear their masks

98 Exhibit 2, Tab 35, p 585 (Beacon 410 Gas Monitor – Charts of Data from 22 August 2017).

99 NOE 699, [the paramedic].

100 NOE 431, [worker A].

101 NOE 595, Abrahams.

102 NOE 596, Abrahams.

103 NOE 75-82, [the gas sensor installer]; 571, Abrahams.

104 NOE 82, 85, [gas sensor installer].

while doing this, and he said he was wearing his while he tested the contents. He said the pH was 13, which was “rare but not unknown” when treating heavy metal waste. He said he knew they needed to get the pH down to 9, “and the way you drop the pH is you add acid. We did this by moving an IBC of acid to the side of the pit using a forklift and opening the tap so it drained into the pit.”105

[65] At 11.15, the pit reaction chemistry processing document records that 50kg of aluminium sulphate reagent was added to the pit and mixed in with an excavator, followed by 100L of 50% w/v sulphuric acid from an IBC at 11.30. Both of these substances are acidic and reacted with the sulphide solution to form hydrogen sulphide gas.106

[66] Once again the alarm went off. At 11.22, the reading reached the 10ppm alarm trigger level. At 11.23, the reading reached the maximum recorded level of 50ppm where it stayed until 11.34.107 Mr Abrahams said they evacuated the building and waited outside for the gas to dissipate “like we normally did.” This time though, “the gas did not seem to dissipate – it was hanging around and not going away.”

[67] Because the gas was not dissipating, Mr Abrahams called Mr Pessina for advice. Mr Pessina said Mr Abrahams told him “they had the mercury wash” in the pit, that the hydrogen sulphide alarm was going off and the pH was 13.108 Mr Abrahams said he told Mr Pessina that they added “the mercury water IBCs to the pit”, that the hydrogen sulphide alarm was going off, and that the pH of the pit was 13. He said Mr Pessina told him to add lime. He did not recall Mr Pessina say “and leave it” after adding the lime, but he said “adding lime and leaving for a while is what I did, so maybe he did say that.”109 Mr Pessina said, “I’m pretty sure I used the words, ‘Add a bag of lime and leave it’. If it was not those exact words it was certainly the message that I intended to convey and thought I had conveyed.”110 He said his intention was

105 NOE 590, Abrahams.

106 Exhibit 2, Tab 33, p 569.

107 Exhibit 2, Tab 35, p 585, Chart 2.

108 NOE 395, Pessina.

109 NOE 596, Abrahams.

110 NOE 395, Pessina.

to “investigate what was going on when I returned to the site later that afternoon.”111

He said Mr Abrahams did not tell him that they had also added ZAC to the pit.112

[68] After the telephone conversation with Mr Pessina, Mr Abrahams said he went back to Building 2 wearing his mask and added three bags of lime, one at a time, to the digger bucket “and [worker C] then turned the digger round and loaded it into the pit.” He said he returned to Building 1 to monitor the gas levels. He said he “only slightly” entered Building 2 when the lime was added because “the digger arm was long” and “that was just how we did it, you know, it was just, that’s where the, you know, you don’t go close to the pits, there’s a risk of falling, and at that time we had hazardous stuff in there.”113 He said, “each bag of lime did seem to help the hydrogen sulphide levels drop but it didn’t stop the pit from gassing off completely, hence the second and third bag of lime. The pit then stopped gassing off because the levels on the monitor in Building 1 had dropped off. Because it had stopped gassing off the alarm could be reset and I thought it was all good again.”114

[69] The evidence suggests that once the alarm could be reset because the hydrogen sulphide levels went below 10ppm, acidic compounds would again be added to the pit to achieve a pH of 9, reversing the remedial process that had just been completed. When more acid was added, hydrogen sulphide would again be produced, causing the pit to “gas off” and the alarm to go off when the level reached 10ppm.

[70] The pit reaction chemistry document records that between 11.45 and 12.00, three 25kg bags of hydrated lime were added to the pit and mixed with an excavator.115 The Beacon 410 Gas Monitor charts show the level of hydrogen sulphide gas declined below 10ppm at 11.39, went up to 50ppm at 11.59, but then rapidly declined to below 10ppm at 12.04 where it appears to have continued to decline until 12.40. There is little direct evidence about what caused this spike at 11.59 in the period in which the lime was added. Both Mr Abrahams and Mr Dickson said chemical reactions can produce bubbles, vapours or steam. Mr Dickson said “there’s no other explanation for

111 NOE 397, Pessina.

112 NOE 402, Pessina.

113 NOE 614, Abrahams.

114 NOE 597, Abrahams.

115 Exhibit 2, Tab 33, p 570.

production of hydrogen sulphide other than some kind of sulphide material containing material being there present to start with.”116 [The gas sensor installer] thought the spike was caused by a “burst” of hydrogen sulphide gas being “shot right up” over the sensor.117

[71] At 12.30, the pit reaction chemistry document records that 100L of 50% w/v sulphuric acid was added to the pit, at a time when the level of hydrogen sulphide gas was nil. At 12.45, the pit reaction chemistry document shows that about 650L of mixed nitric, sulphuric and phosphoric acid was added to the pit from an IBC. Both times, the acid was mixed into the pit with an excavator. The Beacon 410 Gas Monitor chart shows the hydrogen sulphide reading went from nil to the maximum 50ppm reading within a minute at 12.40 and stayed there until 12.46. The reading then declined to 10ppm at 12.51, went briefly back up to 10ppm at 12.54, at which point it then declined to 0.05ppm until 3.06pm. Mr Abrahams said the alarm went off again, they left the building wearing their gas masks and waited for the gas to dissipate. He said he added the acid to get the pH to 9.118

[72] The employees went for lunch around this time.119 Mr Abrahams recalls saying to [the victim] after lunch during a break, in the presence of [worker B], that they needed to get the pH in the pit to 9 and sorted “for the end of the day.”120 Mr Abrahams said he walked to the road to put a drill bit [the victim] had given him and a piece of plywood in his car. He returned intending to put his car keys in his locker when [worker A] ran in and said “come man [the victim] is in a bad way”.121 He said he could not hear an alarm at that point, but he heard one after the accident.122 He said contrary to [worker A]’s evidence, he was not looking at the monitor: “I know exactly where I was in that building.” When asked again about the alarm, he said:123

116 NOE 643, Dickson.

117 NOE 108, [the gas sensor installer].

118 NOE 598, Abrahams.

119 Exhibit 2, Tab 33, p 570; NOE 599, Abrahams.

120 NOE 599, Abrahams.

121 NOE 600, Abrahams.

122 NOE 606, Abrahams.

123 NOE 607, Abrahams.

I was doing CPR on my best friend. I cannot recall. There was just so much going on I can’t recall exactly when that alarm went off, yeah, I do not at some point after the fact, after [the victim] had left it was going off ...

[73] [Worker B] said he too began to walk towards the road when he heard a cry and saw [worker C] supporting [the victim] just outside Building 2. He turned around to help Mr Wilson lay [the victim] on the ground. He said he phoned 111 at 3.07. No record of that call was produced in evidence.

[74] The pit reaction chemistry document records that about 500L of 50% w/v citric acid was added from an IBC between 3.00 and 3.15pm.124 The Beacon 410 Gas Monitor records that at 3.06 the hydrogen sulphide reading reached 10ppm, and 90 seconds later, at 3.08, it reached the maximum reading of 50ppm. It remained there most of the time until 3.50 when it declined as rapidly as it rose 42 minutes earlier. It finally went below 10ppm at 4.00pm.

[75] Emergency services personnel could smell the distinct rotten egg smell of hydrogen sulphide when they arrived to assist [the victim].125 [Name deleted], a driver for Waste Management, said he could smell it when he was driving along the Petone foreshore.126 Although Mr Dickson said that the human nose is more sensitive than a monitor (he said he has tested this and found that a person can smell hydrogen sulphide when an instrument calibrated to parts per million records nothing127) the evidence confirms that a significant amount of hydrogen sulphide gas was produced very quickly, and persisted for 52 minutes, when [the victim] inhaled it.

[76] [The victim] was taken to hospital around 3.40 and died at 7.58pm from hydrogen sulphide toxicity.

124 Exhibit 2, Tab 33, p 570.

125 NOE 467-468, Gethig.

126 NOE 454, Walker; NOE 502, [worker B].

127 NOE 683, Dickson.

3. The Law
   

[77] As is the case in any criminal prosecution, the burden is on the prosecution to prove the allegations against the defendant beyond reasonable doubt. That means I must be sure the defendant acted recklessly in the ways WorkSafe alleges. In this case, the defendant’s employees gave evidence, both as prosecution witnesses and in Mr O’Loughlin’s case, as a defence witness.

[78] The standard tripartite direction is that if I accept the defendant’s evidence, then the proper verdict is not guilty because the defendant will not have done what the prosecution alleges. If the defendant’s evidence leaves me unsure, then again the proper verdict is not guilty because the prosecution will have left me with reasonable doubt. If I disbelieve the defendant’s evidence, I must not jump to a verdict of guilty but instead assess all the evidence that I accept as reliable and credible in order to satisfy myself that the defendant is guilty beyond reasonable doubt. It is not a case of simply choosing whose account I prefer. To do that would be to ignore who has the burden of proof and it would also ignore the standard of proof beyond reasonable doubt. The issue is always whether the prosecution has proved its allegations against the defendant beyond reasonable doubt.

[79] The standard tripartite direction sits awkwardly in this case. The defence called one witness, but the bulk of the prosecution’s evidence was from witnesses who were employees of the defendant through whom the law attributes conduct and state of mind to the defendant. To succeed therefore, the prosecution must show that one of its own witnesses was reckless. No prosecution witness was declared hostile for appearing to exhibit a lack of veracity or an intention to be unhelpful, nor was any prosecution witness given a direction about the privilege against self-incrimination. As will be seen, the prosecution has nevertheless invited me find that aspects of the evidence of its own witnesses lack credibility and should not be believed. This appears to make the third part of the tripartite most relevant to my consideration of the verdict. I would also observe that this sort of inquiry is much better suited to an inquisitorial process than an adversarial one.

[80] The defendant in this case is a corporation. HSWA provides that the conduct and states of mind of employees can be attributed to a corporation provided they are acting within the scope of their actual or apparent authority. Section 160 attributes state of mind:

160. State of mind of directors, employees, or agents attributed
     

...

(2) If, in any civil or criminal proceedings under this Act in respect of any conduct engaged in by a person other than an individual, being conduct in relation to which any provision of this Act or regulations applies, it is necessary to establish the state of mind of the person, it is sufficient to show that an officer, employee, or agent of the person, acting within the scope of his or her actual or apparent authority, had that state of mind.

(3) In this section, state of mind, in relation to a person, includes the knowledge, intention, opinion, belief, or purpose of the person and the person’s reasons for that intention, opinion, belief, or purpose.

[81] Section 161 attributes conduct:

161. Conduct of directors, employees, or agents attributed
     

...

(2) Conduct engaged in on behalf of a person (other than an individual) by any of the following must be treated, for the purposes of this Act, as having been engaged in also by that person:

• (a) an officer, employee, or agent of the person acting within the scope of his, her, or its actual or apparent authority:
  
• (b) any other person at the direction or with the consent or agreement (whether express or implied) of an officer, employee, or agent of the person, given within the scope of the actual or apparent authority of the officer, employee, or agent.
  

[82] Section 47 of HSWA provides:

47 Offence of reckless conduct in respect of duty

(1) A person commits an offence against this section if the person—

• (a) has a duty under subpart 2 or 3; and
  
• (b) without reasonable excuse, engages in conduct that exposes any individual to whom that duty is owed to a risk of death or serious injury or serious illness; and
  
• (c) is reckless as to the risk to an individual of death or serious injury or serious illness.
  

[83] Sections 160 and 161 provide that the conduct and state of mind of the person who satisfies the elements of the s 47 offence can be attributed to the defendant. On the basis of the Court of Appeal’s judgment in Commerce Commission v Progressive Enterprises Ltd, I ruled at the pre-trial hearing to dismiss this charge under s 147 of the Criminal Procedure Act 2011 that the conduct and states of mind of more than one person could not be aggregated.128 Thus, for example, Mr Pessina’s decision to let the IBCs stay on site for future testing cannot be aggregated with Mr Abrahams’ decision to begin treating the contents of the IBCs, in order to attribute recklessness to the defendant. The conduct and knowledge of each individual considered separately must be capable of supporting a finding of recklessness attributable to the company. Attribution of the mens rea and actions of individual employees however appeared to no longer be an issue following the evidence. There are a number of significant actors whose conduct and states of mind need to be assessed to ascertain whether they have committed the offence of recklessness alleged. They include Paul Ward, branch manager of the Seaview facility; Ryan Abrahams, the production supervisor; and Frank Pessina, the chemist.

[84] To succeed in this prosecution, WorkSafe must prove beyond reasonable doubt that:

• (a) Waste Management had a duty under subpart 2 or 3 of HSWA;
  

128 WorkSafe v Waste Management Ltd [2020] NZDC 24553 (27 November 2020).

(b) Waste Management engaged in conduct that exposed any individual to whom that duty is owed to a risk of death or serious injury;

(c) There was no reasonable excuse for the conduct engaged in by Waste Management; and

(d) Waste Management was reckless as to the risk to an individual of death or serious injury.

[85] By pleading guilty to the s 48 charge, the defendant accepted that it had a duty under subpart 2 or 3 of HSWA, and that there was no reasonable excuse for its conduct. With respect to each particular, that leaves for resolution those matters in (b) and (d) above. The matter in (d) concerns recklessness which is at the heart of this case.

[86] Recklessness is not defined in HSWA. In R v Harney, the Court of Appeal defined recklessness to require “foresight of dangerous consequences that could well happen, together with an intention to continue the course of conduct regardless of risk.”129 Recklessness required recognition of the relevant risk, rather than a mere failure to give any thought to the risk. In Cameron v R, the Supreme Court set out the two limbs of the test for recklessness as follows:130

• (a) the defendant recognised that there was a real possibility that:
  
  • (i) his or her actions would bring about the proscribed result; and/or
    
  • (ii) that the proscribed circumstances existed; and
    
• (b) having regard to that risk those actions were unreasonable.
  

[87] The test for recklessness requires the proscribed result and the actions alleged to bring about the proscribed result, to be identified. The proscribed result in this case is the exposure to risk of death or serious injury. The actions alleged to bring about

129 R v Harney [1987] NZCA 86; [1987] 2 NZLR 576 at 579.

130 Cameron v R [2017] NZSC 89 at [73].

the proscribed result are defined by reference to what is alleged in the charge. Each of the three particulars alleges that different actions exposed workers to a risk of death or serious injury. The first particular alleges that “holding” mercury waste containing sulphides without a risk assessment exposed workers to a risk of death or serious injury. The second particular alleges that “directing and/or permitting workers to process” the mercury waste containing sulphides with other chemically reactive substances without a risk assessment exposed workers to a risk of death or serious injury. The third particular alleges that “directing and/or permitting workers to continue processing” exposed workers to a risk of death or serious injury “as a result of unsafe levels of hydrogen sulphide gas”.

[88] The test for recklessness also requires proof of a subjective mental element. It requires proof that the defendant, in this case through an employee, recognised that there was a “real possibility” that the actions specified in the particulars would expose workers to a risk of death or serious injury. In the first particular, that would require proof that the defendant through one of its employees recognised that there was a real possibility that “holding” mercury waste containing sulphides without a risk assessment exposed workers to a risk of death or serious injury. The second particular would require proof that the defendant through one of its employees recognised that there was a real possibility that “directing and/or permitting workers to process” the mercury waste containing sulphides with other chemically reactive substances without a risk assessment exposed workers to a risk of death or serious injury. The third particular would require proof that the defendant through one of its employees recognised there was a real possibility that “directing and/or permitting workers to continue processing” exposed workers to a risk of death or serious injury “as a result of unsafe levels of hydrogen sulphide gas”.

[89] The particulars also specify that the risk arises from holding, directing the processing of, and continuing the processing of, “mercury waste containing sulphides”. This raises the question of what the prosecution must prove the defendant knew. Must it be shown that the defendant, through one of its employees, knew that what was being held, directed to be processed, or continuing to be processed, was dangerous waste generally, or mercury waste more specifically, or, as alleged in the charging document, mercury waste containing sulphides?

[90] The prosecution submitted that the defendant “need not appreciate exactly how a worker might be at risk of death or serious injury or serious illness, as long as they were aware of exposure to a risk of equivalent magnitude.”131 This submission is helpful in explaining the seriousness of the risk the defendant must have a subjective appreciation of, but it does not help to explain the specific nature of the risk the defendant must have an appreciation of. In Cameron, to have “a guilty state of mind”,132 the Supreme Court said it was not necessary that the defendant knew the precise analogue they possessed as long as they knew it was some kind of controlled drug. By analogy, in this case, to have a guilty state of mind, the prosecution would not need to show the defendant knew the precise chemical reaction that exposed workers to a risk of death or serious injury (mixing acid into a mercury solution containing sulphides creating hydrogen sulphide gas) as long as it could prove they knew it was not just mercury waste, but mercury waste containing sulphides.

[91] The “proscribed result” in this case is the exposure of a worker to a risk of either death or serious injury, in terms of the charge, “arising from the storage, handling, treatment or disposal of mercury waste containing sulphides.” A “real possibility” is something the defendant recognises as genuine and not speculative or fanciful.133 The defendant’s evidence is not necessarily determinative; an assessment of the credibility and the reliability of their evidence is necessarily part of the mix. So too are inferences drawn from all the circumstances of the case, including, in this case, the statements and actions of the prosecution witnesses who were employed by the defendant at the time of [the victim]’s death.

[92] Section 47 has been considered in one other case, Sarginson v Civil Aviation Authority.134 That case concerned the actions of a helicopter pilot, Mr Sarginson, when he was carrying a passenger, [name deleted – “the deceased”]. Mr Sarginson and [the deceased] were partners in an earth-moving business called AgWorks and were

131 Prosecution Closing Submissions, para 106.

132 R v Cameron [2017] NZSC 89 at [97(b)].

133 R v Piri [1987] NZCA 6; [1987] NZLR 66 (CA).

134 Civil Aviation Authority v Sarginson [2019] NZDC 2565 (25 February 2019); appeal dismissed [2020] NZHC 3199 (10 December 2020).

engaged in that business at the time of the crash. Mr Sarginson was charged in his capacity as both an officer of AgWorks and a worker of that business.

[93] The prosecution case in Sarginson rested on proof of two reckless acts by Mr Sarginson: attempting to fly the helicopter down below cloud cover; and failing to take appropriate steps to ensure the helicopter was safely loaded.135 Although the helicopter took off in good weather, after an hour the pilot encountered poor weather and diminished visibility in the form of a cloud layer below the helicopter. The helicopter crashed, killing the passenger. Cameron was considered and applied in the District Court by Judge Farnan, and on appeal to the High Court. Mander J stated how the Cameron test was to be applied:136

• [44] Recognition of the proscribed result or circumstances requires proof of the defendant’s appreciation that something is a “real possibility” or “could well happen”. Proof of the defendant’s subjective state of mind will ordinarily be dependent on drawing inferences from the circumstances of the case and in particular from the defendant’s conduct and statements.
  
• [45] Where a defendant has consciously appreciated the risk it is for the fact-finder to objectively assess whether the defendant’s actions were reasonable in light of that knowledge. The issue will be whether a reasonable and prudent person would have taken that risk.
  

[94] Applying the test in Cameron, Judge Farnan found that the defendant was reckless when he descended through a hole in the cloud:137

[267] I am satisfied that the defendant knew the risks associated with descending through a gap in the cloud and the especially strong risk that this posed, given his limited training and experience. I also accept that the defendant knew that he had other, safer, courses of action that he could have taken. However, these would have either been more time consuming or would have prevented him from arriving at Mt Algidus Station at his preferred time. He therefore opted to knowingly take the risk associated with descending through a hole in the cloud.

[95] On appeal, Mander J agreed with Judge Farnan that the defendant knew about the risk posed by cloud cover, and had there been no cloud, there would have been no

135 Sarginson v Civil Aviation Authority [2020] NZHC 3199 (10 December 2020) at [46].

136 Sarginson v Civil Aviation Authority [2020] NZHC 3199 (10 December 2020).

137 Civil Aviation Authority v Sarginson [2019] NZDC 2565 (25 February 2019); appeal dismissed [2020] NZHC 3199 (10 December 2020).

reason for the defendant’s knowledge of cloud cover risk to have been triggered.138 But there was cloud cover, and the defendant’s knowledge of the risk (the first limb of the test) became relevant to the reasonableness of the manoeuvre he undertook (the second limb of the test). The defendant argued on the second limb that “because the manoeuvre would not have appeared as risky to Mr Sarginson as to a more experienced pilot ... the decision to descend ... was not unreasonable”. Mander J decided that the defendant’s inexperience made the manoeuvre more unreasonable:

[69] I do not consider this argument is tenable. To the contrary, Mr Sarginson’s relative inexperience made it even more unreasonable for him to undertake the descent in the prevailing cloud conditions. As previously noted, the dangers of flying through this type of cloud cover were known to Mr Sarginson. They were covered in mandatory training that he had undertaken in order to obtain his pilot’s licence. His inexperience may be at the root of the decision he made but it does not render that mistake a reasonable one. His inexperience, a factor obviously known to him, made his action more unreasonable, particularly when viewed against other safe options that were available to him. When regard is had to the degree and nature of the risk, one that placed lives in jeopardy on any objective view, Mr Sarginson’s decision to descend despite the foreseen risk was unreasonable.

[96] Judge Farnan also found that the defendant “knew the risks associated with flying an overloaded R22 helicopter and deliberately or consciously failed to take appropriate steps to ensure his helicopter was not overloaded.” As such, she found with respect to this particular that the defendant was reckless as to the risk of serious injury or death.

[97] On appeal, the defendant argued on the first limb that he did not appreciate the proscribed risk of death or serious injury because he believed the helicopter to be at most only marginally overweight. Once again, Mander J disagreed:

[108] When that knowledge of the significance of the helicopter’s weight capacity is coupled with Mr Sarginson’s own understanding that the aircraft’s weight was borderline (it would later have been found that the helicopter was a long way overweight) and that no proper weight check was undertaken by him, there is a more than adequate foundation of proof to reasonably infer conscious risk-taking. Knowing it would be unsafe to exceed the manufacturer’s weight limit and knowing the weight of the helicopter was at that very limit, to have taken off without carrying a proper weight check was reckless.

138 At [67].

[98] Taking into account the test for recklessness in Cameron, and both judgments in Sarginson as examples of how that test can be applied to s 47, the issues for resolution in this case with respect to each particular can be stated as follows:

[99] In the first particular, WorkSafe alleged Waste Management was reckless by

• Knowing the risks involved with hazardous waste, holding mercury waste containing sulphides at the site for a period exceeding six months, without undertaking a risk assessment to determine the nature of the hazardous waste held, assessing the risks to health and safety of workers, and then implementing the appropriate controls.
  

[100] WorkSafe submitted that there are three alternative ways that the Court could find this particular proved.

[101] The first way is for the Court to be sure that Mr Ward failed to communicate the nature of the Haywards substation waste to Mr Pessina and that on at least one occasion after the waste arrived at Seaview he realised he had not done so and that this might expose workers to a risk of death or serious injury. WorkSafe invites me to draw an inference that Mr Ward knew what the waste was and that he knew he failed

to communicate his knowledge to Mr Pessina from the facts that: he attended the meeting with Mr Iggulden and Mr O’Grady on 9 November 2016 both of whom gave him documentation and told him what the waste was; emailed Mr Pessina on 18 November 2016 to discuss whether mercury water was safe to flush down the trade waste; took part in an audit on 21 February 2017 that noted the Seaview facility was unable to produce an up-to-date hazardous substances register; and emailed Mr Licence at CLL on 28 February 2017 to finalise the destruction certificates. WorkSafe invited me to be sceptical of Mr Ward’s evidence and to doubt the credibility of his claimed lack of memory. WorkSafe submitted that the likely reason Mr Ward did not rectify the situation when he realised that he had not passed on the information to Mr Pessina is that “Mr Ward assumed that Mr Pessina would probably be able to figure things out by himself.”139 WorkSafe submitted that this “conscious omission was unreasonable, and hence reckless.”140

[102] Waste Management submitted that there is no evidence that Mr Ward was provided with information on the risks of sulphide solution. Given his lack of chemical knowledge, Waste Management submitted that he would not have appreciated those risks himself. Waste Management also submitted that there is no evidence that Mr Ward knew that the mercury waste continued to be held on site, let alone that he appreciated that holding it on site posed a risk. Finally, Waste Management submitted that there is no evidence that just holding the mercury waste contained in the six IBCs posed a risk of death or serious injury.

[103] I am not convinced Mr Ward knew the significance of what he was told at the meeting with Mr O’Grady and Mr Iggulden. He admitted his knowledge of chemistry was rudimentary. Although the CLL report describes one of the Haywards waste streams as liquid mercury waste consisting of a mixture of sodium sulphide and sodium carbonate in solution, and mercury precipitate, this was prepared in March 2017 after the Haywards waste had been delivered to Seaview and is not evidence of what Mr O’Grady and Mr Iggulden told Mr Ward in November 2016. Although Mr O’Grady said Mr Ward was engaged when the waste streams were being discussed, he also said he did not know what documents Mr Ward copied. There is no evidence

139 Prosecution Closing Submissions, para 160.

140 Prosecution Closing Submissions, para 161.

that Mr Ward was given a sodium sulphide safety sheet or was told about the risks of sodium sulphide; rather Mr O’Grady made an assumption that Waste Management “knew how to handle sodium sulphide chemicals”.141 Such an assumption reduces the possibility an inference can be drawn that Mr Ward was specifically told about any risk. Mr Iggulden said he had no specific recollection of discussing risks associated with the mercury waste coming from Haywards.142

[104] Further, I do not think mere awareness of the Haywards contract means that Mr Ward recognised there was a real possibility that failing to tell anyone that waste arrived from Haywards would risk exposing workers to death or serious injury. There is evidence from both Mr Ward and Mr Pessina that Mr Ward told Mr Pessina that mercury waste would be arriving from Haywards, but Mr Pessina did not remember any reference to sodium sulphide. There is evidence that Mr Ward told Mr Pessina that mercury-contaminated stormwater was arriving from Haywards when he asked him if was safe to dispose of it as trade waste. This shows that there was communication between Mr Ward and Mr Pessina, and it can be inferred from the fact that the communications referred to mercury but made no reference to sodium sulphide that Mr Ward had no appreciation of the risk posed by sodium sulphide. A similar inference can be drawn from the emails between Mr Ward and Mr Licence that sought to align what was in the destruction certificates with what was received from Haywards. The focus in the exchange of emails is on the weight, volume and the type of containers that were received from Haywards, rather than on the presence or absence of sulphide solution. The audit certificate focuses on the inability to account for inventory, but does not indicate much about Mr Ward’s own knowledge of what was in the IBCs.

[105] To my mind, there is an absence of evidence that Mr Ward was specifically told about the risk of sodium sulphide in the mercury waste stream, and if he was told that sulphide was part of the mercury waste stream, there is evidence from which it can be inferred that he did not appreciate the risk it posed. It can be inferred from not taking opportunities he had in discussions with Mr Pessina and Mr Licence to alert them to the presence of sodium sulphide in the mercury waste stream, that Mr Ward

141 NOE 165, O’Grady.

142 NOE 248, Iggulden.

did not appreciate or understand the special risk posed by sodium sulphide, and indeed did not appreciate that the waste contained sulphide. Mr Ward’s actions are consistent with a subjective belief that what was received at Seaview was simply water-based mercury waste. He did not tell anyone about the presence of sodium sulphide because he did not know, and if he did know, did not appreciate its risk. The combination of this lack of knowledge and the receipt of a harmless water-based mercury waste stream, leaves me with reasonable doubt that Mr Ward recognised there was a real possibility, by not telling anyone about the risk posed by the presence of sodium sulphide in the mercury waste after it was received at Seaview, that his omission would bring about the proscribed result of exposing workers to the risk of death or serious injury.

[106] The prosecution submitted that the second way to prove this particular is to find that aspects of Mr Pessina’s evidence are not credible. Examples include his evidence that he never let Mr Abrahams treat heavy metal waste without his direct supervision is contradicted by his evidence that he gave Mr Abrahams a test kit to determine when a solution no longer contained heavy metals, and Mr Abrahams’ evidence that he had a key to Mr Pessina’s Building 7 and would carry out these treatments when Mr Pessina was off site. Another example is his evidence that he remembered IBCs with “Hg” written on one side, when the photographs show “Hg waste” written on one side. The prosecution submitted that if he thought the IBCs contained mercury water, it makes no sense for Mr Pessina to have left the IBCs sitting around for six months when they could have been quickly disposed of down trade waste. The prosecution submitted that if I do not accept Mr Pessina’s evidence, then I can conclude that Mr Ward told him about the nature of the waste, and that I can then infer when Mr Pessina saw the IBCs in the yard on his walk-through in late January or early February 2017, he must have appreciated that they contained something more hazardous than mercury-contaminated stormwater. It follows on this reasoning, with his knowledge of Mr Abrahams’ autonomy, that he knew there was a possibility that the waste would be mishandled, and that he was therefore reckless in allowing the six IBCs to remain on site for six months without testing or securing them.

[107] The defence submitted simply that on Mr Pessina’s evidence, he perceived no

risk with holding the IBCs in the yard for later testing. The defence submitted that the

prosecution must prove beyond reasonable doubt that Mr Pessina or Mr Ward appreciated a risk of the kind specified in the charge and then chose to proceed in face of that risk. The defence submitted that neither Mr Pessina nor Mr Ward had any suspicion, let alone knowledge, that the waste contained sulphides.

[108] Although Mr Pessina’s evidence about the scope of Mr Abrahams’ authority differed from what Mr Abrahams said about it, I do not think this renders the core of Mr Pessina’s evidence unbelievable. Not having seen the IBCs arrive, his evidence begins with the late January or early February walk-through that was coloured by his knowledge of the mercury-contaminated storm water that had arrived from Haywards in 2016. His evidence was that the clear content of the IBCs was consistent with mercury-contaminated storm water, that the IBCs looked to be in good shape and able to safely contain their contents, and there was no reason for him to think otherwise.

[109] Not knowing the IBCs contained sulphide and leaving them outside Building 7 for future testing is negligent. Knowing the IBCs contained sulphide and leaving them outside Building 7 anyway is reckless. The issue then is whether the prosecution can prove beyond reasonable doubt an inference from all the evidence that Mr Pessina knew the IBCs contained something, in this case sulphide, that could expose workers to the risk of death or serious injury.

[110] WorkSafe submitted that he should have been more careful with the IBCs, with his knowledge that mercury sulphide becomes clear over time, and with his awareness that the mercury contaminated waste water was delivered by tanker the previous November. On the other hand, it is plausible that a small amount of left over storm water would be put into IBCs, and indeed Mr Iggulden said the IBCs would have contained, amongst other things, small amounts of storm water.143 Mr Pessina knew he had not tested the contents of the IBCs, but knew he should. It is understandable that having triaged what was in the yard, the secure-looking IBCs would be given lower priority for testing. I do not think it can be inferred from the fact he did not immediately dispose of the contents as trade waste that his evidence that he thought the IBCs contained water contaminated with mercury lacks credibility. It is not

143 NOE 238-239, Iggulden.

necessarily a binary decision-making process. Not moving them to Building 7 is consistent with thinking they did not contain hazardous waste that needed to be stored there. Not immediately disposing of them as trade waste is consistent with being prudent and wanting to test them later to be sure of their contents before deciding what the best way of treating them was.

[111] I do not think there is sufficient evidence to show that Mr Pessina appreciated at the walk-through and afterwards that there was a real possibility that the IBCs contained sodium sulphide solution and a mercury sulphide precipitate. If he did not have this appreciation, then he could not have appreciated the risk that the waste would be mishandled. I therefore have reasonable doubt that Mr Pessina recognised there was a real possibility, that allowing the IBCs to remain in the yard for later testing, would bring about the proscribed result of exposing workers to the risk of death or serious injury.

[112] The prosecution submitted that the third way I could be satisfied that this particular is proved is if I am sure that there is no other reasonable alternative to the two possibilities identified above. Given the effort made by CLL to identify the waste when it was picked up by stickering the IBCs and completing a customer waste declaration form,144 and when it was received at Seaview accompanied with a safety data sheet and a dangerous goods declaration,145 the prosecution submitted that it was not reasonably possible for the sulphide solution to have arrived on site without either Mr Ward or Mr Pessina being aware that it was coming and what it was. The prosecution submitted that Waste Management’s invoicing practices using destruction certificates are separate from, and later than, the procedures in place before the waste arrives on site.

[113] The defence answer to this is in its submission that without knowledge that the waste contained sulphides, neither Mr Ward nor Mr Pessina cannot have had any knowledge of the risk arising from sulphides in this waste.

144 NOE 228-233, Iggulden.

145 NOE 311, Bolt.

[114] There is little evidence about circumstances surrounding the arrival of the six IBCs at Seaview. There is however evidence that “mercury water” was picked up from Haywards in November and that this generated the description “water based waste” on subsequent documents. There is general evidence that truck drivers needed to carry dangerous goods paperwork when picking up waste, and evidence of the labelling or stickering process used when the trucks arrived on site. On the other hand, the words “Hg waste” drawn in red paint on the IBCs would have signified the presence of mercury as a dangerous good, but would not necessarily have alerted anyone to the presence of sulphide when the IBCs arrived. The documents generated from the initial receipt of what actually was mercury contaminated water would have continued the misapprehension. In the absence of evidence from which it can be safely inferred that Mr Ward or Mr Pessina appreciated there was a real possibility that workers would be exposed to the risk of death or serious injury by, in Mr Ward’s case, not accurately communicating the actual contents of the six IBCs after they arrived, and in Mr Pessina’s case, allowing the six IBCs to remain on site for later testing, I do not think it can be inferred that there is no other reasonably possible alternative to either Mr Pessina or Mr Ward having the knowledge required for a finding of recklessness. The absence of evidence surrounding the arrival of the six IBCs shows a failure to exercise the level of care a reasonable person would exercise in these circumstances, but that supports a finding of negligence, not recklessness.

[115] For these reasons, I cannot be sure the prosecution has proved the third way it submitted the first particular can be proved, that it was not reasonably possible that the IBCs arrived on site without either Mr Ward or Mr Pessina being aware of their actual contents and appreciating the possibility that their actions would risk exposing workers to death or serious injury.

2. The second particular
   

[116] In the second particular, WorkSafe alleges Waste Management was reckless by

• Directing and/or permitting workers to process the mercury waste containing sulphides using other chemically reactive substances, without having

undertaken a risk assessment to assess the risks to health and safety of workers, and then implementing the appropriate controls

[117] There is no dispute that the contents of the IBCs were not tested before treatment began. This is negligent. As discussed above, they were, however, visually assessed in the light of knowledge of the nature of the nature of mercury waste previously received from the same source.

[118] WorkSafe alleged that Mr Abrahams acted recklessly when he directed [the victim] and Mr Wilson to begin processing the IBCs despite knowing the hazards associated with this process and despite knowing that the waste had not been properly identified. WorkSafe submitted that the hydrogen sulphide gas that killed [the victim] was present only because Mr Abrahams directed him to add acid to the sulphide solution, which was exactly the opposite to what should have been done.146 WorkSafe submitted that Mr Abrahams appreciated the risk of death or serious injury because he had experience processing heavy metal waste,147 he had an approved handler certificate,148 he knew he ought to consult Mr Pessina if he was unsure of the treatment process indicating he was aware of risks of processing substances with which he was unfamiliar,149 he knew how to reset the alarm once gas got to a “safe” level,150 he knew to wear a mask when treating waste in the pits and that masks would “mitigate” the risk posed when waste “gassed off”,151 and he knew to evacuate the building when the waste gassed off.152 WorkSafe submitted that I can infer from this evidence that Mr Abrahams “was aware of a real possibility that reacting an untested substance in the pit with other heavy metals would expose himself and other workers to a risk of death or serious injury.”153 Given Mr Abrahams’ appreciation of the risk, WorkSafe submitted that a reasonable person would not have started to process the untested waste in the six IBCs.

146 NOE 653-660, Dickson.

147 NOE 549, Abrahams.

148 Exhibit 2, Tab 16, p 76.

149 NOE 551, Abrahams.

150 NOE 570, Abrahams.

151 NOE 566, 593, 611, Abrahams

152 NOE 567, Abrahams.

153 Prosecution Closing Submissions, para 188.

[119] The defence submitted that Mr Abrahams did not appreciate there was a risk with what he did on 22 August 2017 because he thought he was treating mercury water. The defence submitted that he did not appreciate the risk posed by hydrogen sulphide in the circumstances: his experience was that any gas release would be for a short time and would dissipate; that the alarm could only be reset when the gas reached safe levels; that they would be safe if they left the building when the alarm went off; and that wearing masks “would protect us from the risk”.154 The defence submitted that the allegation of recklessness therefore fails at the first hurdle: Mr Abrahams did not recognise there was a real possibility that his actions would bring about the proscribed result, the risk of death or serious injury posed by the release of hydrogen sulphide gas.

[120] Much of what the prosecution alleges are facts from which reckless knowledge can be inferred are the same facts the defence say show an absence of knowledge of a real possibility that beginning treatment of the contents of the IBCs would risk exposing workers to the risk of death or serious injury. Once again, in order to succeed the prosecution must prove beyond reasonable doubt that Mr Abrahams recognised that there was a real possibility that his decision to begin processing the waste in the six IBCs would expose his fellow workers to the risk of death or serious injury. The symbol Hg painted on the side of the IBCs did not alert Mr Abrahams to the possibility the IBCs contained sulphides, only that they contained mercury from the Haywards site. He said this was consistent with what he was told by Paul Ward and Pat Fabish. On his evidence, he does not appear to have made any distinction between mercury water and mercury waste or been aware there was a possibility that the IBCs contained sulphide.155 He was asked what he knew about hydrogen sulphide gas. He said he knew it was the gas you could smell in Rotorua, but he “did not understand it was so dangerous that it could kill you at all.”156 He said he thought “you would have to have a prolonged exposure to it at quite high quantities to be a problem and is why it wasn’t a problem in Rotorua, but we had gas masks.”157

154 NOE 611, Abrahams.

155 NOE 585, Abrahams.

156 NOE 594, Abrahams.

157 NOE 594, Abrahams.

[121] He was, however, familiar with treating heavy metals, knew mercury was a heavy metal, and discussed with Mr Pessina how to treat mercury at the walk-through. I do not think the presence or absence of the definite article in front of “mercury water” during the discussion during the walk-through matters much. There is no evidence of any other mercury waste on site, and there is evidence that both Mr Pessina and Mr Abrahams thought the IBCs contained mercury waste from Haywards based on previous delivery of mercury waste from Haywards. It can be inferred that the conversation could only have related to the six IBCs and there is nothing to reveal any awareness they contained sulphide. Mr Abrahams knew he had to get the pH of the pit to 9 to precipitate the heavy metal out of the solution and be able to safely dispose of the remaining liquid. He said “as long as we can get it to pH 9 this is going to be a stable solution” without risk of further gassing off.158 His description of the risk associated with treating heavy metals in the pit was that when the alarm went off, “alarms don’t mean good,”159 but he also said “if we took our masks off then it wasn’t going to be great for us but I don’t think it was dangerous at the time, I didn’t think it would kill you.”160 He also said they used the digger to avoid getting too close to the pit because “there’s a risk of falling”161 as distinct from a risk from inhaling gas.

[122] The prosecution submitted that taking steps to mitigate risk and protect one’s self indicates knowledge of what the risk is. It might also be evidence that employees knew generally there was a risk without knowing specific details, and were doing what they were told by systems their employer put in place. In this case, Mr Abrahams said he knew to wear a mask when processing chemicals in the pit, and did; he knew to evacuate the building when the alarm went, and did; he knew that once the level of gas was low enough for the alarm to be reset, he could stop waiting because it was safe to go back into the building – he did this by waiting until the alarm could be turned off to return to the building. When the contents of the pit were not behaving as they should, he knew to phone the chemist for advice, and did. He followed the chemist’s advice to add lime to bring the pH to 9, which worked to bring the pH to 9. Although Mr Pessina said he thought he said add lime and “leave it” intending to test it when he

158 NOE 609, Abrahams.

159 NOE 566, Abrahams.

160 NOE 612, Abrahams.

161 NOE 614, Abrahams.

returned, there is no evidence that he expressed that intention to Mr Abrahams and conflicting evidence about whether he said it at all. Mr Abrahams said on the basis of his experience treating heavy metals that getting the pit to pH 9 meant the pit was stable and processing could therefore continue.

[123] To my mind, Mr Abrahams was negligent, but I do not think he was reckless in the sense he recognised that there was a real possibility that his decision to begin processing the waste in the six IBCs would expose his fellow workers to the risk of death or serious injury. In Sarginson, Mander J said that if the area where Sarginson started his descent had been totally clear of cloud, “there may have been no reason for Mr Sarginson’s knowledge of the hazard of cloud to have been triggered.”162 Similarly, with respect to the finding of recklessness when taking off, Mander J said “knowing it would be unsafe to exceed the manufacturer’s weight limit and knowing the weight of the helicopter was at that very limit, to have taken off without carrying a proper weight check was reckless”.163 With respect to the weight of the helicopter and its descent through a hole in the cloud, Mander J found Sarginson had knowledge of circumstances that posed a risk. In this case, in the absence of knowledge that the IBCs contained sulphide, there was no reason for Mr Abrahams to think that beginning treatment of what he thought was simply mercury water would expose his fellow workers to the risk of death or serious injury by treating the waste in the manner he usually treated heavy metals. For these reasons, I cannot be sure the prosecution has proved the defendant acted recklessly in the way alleged in the second particular.

3. The third particular
   

[124] In the third particular, WorkSafe alleges Waste Management acted recklessly by

• Directing and/or permitting workers to continue processing the mercury waste containing sulphides with other chemically reactive substances including reagents and hazardous waste in the pit, knowing that there was a real
  

162 Sarginson v CAA [2020] NZHC 3199 at [67].

163 Sarginson v CAA [2020] NZHC 3199 at [108].

possibility that such conduct was exposing workers to potential harm as a result of unsafe levels of hydrogen sulphide gas.

[125] WorkSafe submitted that if the processing had stopped after the first gas alarm, [the victim] would not have been put at risk. WorkSafe submitted that Mr Abrahams knew that the sounding of the alarm meant that dangerous levels of hydrogen sulphide were being generated in the pit, he knew that the frequency of the alarms was unusual, and he knew that something he was doing in the pit was causing the generation of gas. WorkSafe invited me to infer from this evidence that Mr Abrahams knew that workers were being exposed to dangerous levels of gas each time they added more acid to the pit, which is why he rang Mr Pessina. WorkSafe submitted “it cannot be true that Mr Abrahams thought that there was no risk as long as he was wearing his respirator. Such a belief would be, for example, inconsistent with the caution he showed when adding lime to the pit.”164 The prosecution submitted that the only reasonable course of action was to stop adding acid to the pit and wait for Mr Pessina’s return.

[126] The defence submitted that Mr Abrahams did not appreciate there was a risk in directing or permitting workers to continue processing the waste. He wore a mask in the building and every time the alarm sounded they left the building and did not return until the alarm has been reset. The defence also submitted that Mr Abrahams knew that the ability to reset the alarm meant the gas was at a safe level, and any further gas would dissipate and no longer be generated once the pit contents reached pH 9.

[127] The significant difference between what is alleged in particulars 2 and 3 is that the processing continued notwithstanding the alarms going off several times. This is the particular that gets closest to recklessness. If the subjective branch of the test for recklessness is proven, that Mr Abrahams knew it was not just mercury waste, but mercury waste containing sulphides that he was treating, then he ought to have recognised there was a real possibility that continuing his actions would expose him and his fellow workers to a risk of death or serious injury as a result of unsafe levels of hydrogen gas, and a reasonable course of action would have been to just stop. On

164 Prosecution Closing Submissions, para 203.

the evidence discussed above though, Mr Abrahams did not know the mercury waste he was treating contained sulphides, but he did know that when the pH got to 9 the solution was stable, and when the alarm could be reset, the gas levels were safe enough to return to work, which is what happened without incident before lunch. The fact that Mr Abrahams added acid after adding lime shows how little understanding he had of the risk his action posed. The fact that he walked to the road to put a drill bit [the victim] gave him in his car after saying they needed to get the pit sorted before the end of the day is evidence of how little appreciation he had that continuing to process the pit contents put himself, the other workers, and his best friend, at risk of death or serious injury.

[128] Unlike Sarginson, this is not a case in which Mr Abrahams had the requisite triggering knowledge that would have enabled him to recognise there was a real possibility that continuing to treat the pit after he thought it was safe would expose workers to the risk of death or serious injury. There is enough evidence to find the defendant negligent by failing to exercise the level of care a reasonable person would exercise in these circumstances, but I am left with reasonable doubt that the defendant was reckless in the way alleged in the third particular.

V. Conclusion

[129] For these reasons, I find the defendant not guilty of the charge under s 47.

[130] Having pleaded guilty to the charge under s 48, Waste Management is remanded for sentence on that charge.

[131] This has been a difficult case. By including employees in the class of people through whom recklessness can be attributed to their corporate employer, Parliament has extended the reach of corporate criminal liability beyond the directing minds of defendant corporations to include employees who have much less “skin in the game.” Because the law does not permit aggregation, individual employees must be found to have been reckless for a prosecution to succeed against their employer. Such a finding risks exposing them to individual personal criminal liability and creates the possibility they will rely on the privilege against self-incrimination not to give evidence that could

shine light on corporate practices that very much need to be improved. A successful prosecution may also require the prosecutor to ask the Court to find aspects of the evidence of its own witnesses unbelievable or unreliable. This is particularly difficult for witnesses who have answered summons to come to court at the request of the prosecutor to give evidence to the best of their ability about their involvement in circumstances that led to the serious injury and then death of their work colleague. Most importantly, I acknowledge how difficult this trial has been for [the victim]’s whanau and work colleagues, who have had to relive that awful day, 22 August 2017.

Judge WK Hastings

District Court Judge

Date of authentication: 29/06/2021

In an electronic form, authenticated pursuant to Rule 2.2(2)(b) Criminal Procedure Rules 2012.