A judge has called WorkSafe's actions "negligent" after it pushed ahead with prosecuting a quarry after a flying visit to check if it was safe.
Photo: RNZ / Samuel Rillstone
Its two inspectors spent only 15 minutes or so at Mount Somers Sand's quarry before concluding an excavator operator was in danger of being engulfed at the bank he was digging at.
A judge last year rejected that - and has now ordered WorkSafe to pay almost $160,000 to the quarry owners mostly for their legal costs.
"The charge ought never to have been laid," said Judge Joanna Maze in her ruling.
WorkSafe's attempt to fundamentally alter the charge when it realised the prosecution had little chance, was "an abuse of process", she said.
Its decision to push on, even after an expert report discounted the risks and the company proposed a truce, "was unfortunate and negligent", the judge added.
But WorkSafe was unrepentant.
"With respect, we disagree with the comments made about the conduct of the prosecution and are disappointed Crown Law refused consent to appeal against the decision," a spokesperson told RNZ today.
Ian Claridge and Lynley Green owned a small quarry inland from Ashburton, extracting silica sand.
They were inspected in February 2018, cleared at a trial a year ago, then pursued costs.
Their lawyers said the costs awarded "are substantial and unprecedented".
"It is understood that this is the first time a charge laid by WorkSafe has been dismissed on the basis there was no case to answer following trial," Olivia Lund and Sean Brennan, of law firm Duncan Cotterill, said in a commentary on the case.
Claridge did all the excavating at the quarry, at the base of an 80m high bank, where silica sand at the top would fall into a catching trench at the bottom.
WorkSafe made an unannounced visit in early 2018.
"The two inspectors considered on visual assessment extending over about fifteen minutes that there were risks of catastrophic failure of the slope" which would lead "to the excavator being engulfed", the judge's findings after last year's trial said.
Another short inspection went ahead a year later.
The quarry owners were experienced and with good track records, though Claridge lacked the certificate of competence required to run a quarry - but he was not charged over that.
An expert for the defence, after assessing the slope and the way hazards were handled, concluded "the risks of engulfment were overstated and highly unlikely - and said that WorkSafe's assertion there was proof of a previous engulfment was wrong.
WorkSafe never challenged that.
"There is, therefore, no case to answer," the judge ruled last year.
"The evidence shows adequate control of risks."
WorkSafe knew, or should have known, by mid 2021 there was very limited basis to prosecute but went ahead anyway.
"Any prosecuting body has a duty of care to members of the public to ensure they undertake proper and careful investigations," the judge said.
The quarry owners told the court how the investigation took a toll on them physically and emotionally.
WorkSafe said in a statement today the "prosecution was diligently conducted using the expertise of external counsel".
It was considering its next steps in light of the judgment.
It had an 80 percent success rate in prosecutions, it said.
