A constructor that argued the "mistake of fact" due
diligence defence was instead found to have made a "mistake of
law" and was convicted of a charge under the Occupational
Health and Safety Act.
A construction employee was injured when a large slab of ice
fell from the face wall of a water intake tunnel being constructed.
A few minutes before, workmen suspended by a crane in a basket had
been chipping away ice from that area. The constructor was charged
with three offences under the Occupational Health and Safety
Act. The second charge, which the Ministry of Labour inspector
admitted alleged "technical" safety violations that
played no role in the accident, alleged that the constructor failed
to ensure that a load rating chart, prepared by a professional
engineer, was affixed in a conspicuous place on the crane.
The crane operator admitted that he was "still
waiting" to receive the load rating chart from the
professional engineer. As such, the appeal court found that the
constructor guilty on the second charge.
The constructor argued the "mistake of fact" branch of
the due diligence defence. It argued that there was a rating chart
at the base of a removable plywood platform (that is, at the
workers' feet) that was a suitable "variation" on the
legal requirement. It also purported to rely on a
"comfort" letter from an engineering firm. The appeal
court held, however, that any mistakes the constructor made were
"mistakes of law not fact": the variations were not
permissible because the employer had not given written notice to
the joint health and safety committee, and the engineering
firm's letter did not refer to the regulation and could not, in
any event, displace the requirements of the regulation. A mistake
of law is not a defence. As such, the constructor was convicted on
the rating chart charge. Two other charges against the constructor
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