Dive charge wrong, says appeal court
September 11, 2004: A Labour Department attempt to prosecute
a company whose contract diver got the bends has come to an end in the Court
of Appeal. The company, Diveco, hired a contractor to take samples from the
bottom of the Rangitoto Channel in the Waitemata Harbour in 2000. The diver
made a series of dives, with a short time at the surface in between, a technique
which increased the risk of decompression sickness. The diver became ill and
spent three days in a recompression chamber. Diveco was charged with failing
to take all practicable steps to ensure safety in a workplace it controlled.
It was convicted in the District Court, but won its appeal in the High Court.
The Labour Department tried to get the conviction re-entered but the Court
of Appeal yesterday refused. The court said Diveco had control of the boat
from which the diver worked, but did not control the water or the seabed,
and the hazard arose in the water, not on the boat. It said the department
could have charged Diveco with a different offence, but realised the problem
with its first charge too late to change it.
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