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The Cat in the Hat and the Bouncing Diver
Theodore Giesel was, without doubt, one of the most influential authors of the last century.
For reasons which others found difficult to fathom at the time, Giesel believed that he could revolutionise children's learning by creating books that they actually wanted to read.
It was, however, an extraordinary challenge that brought fame to Giesel's nom de plume, Dr Seuss. He was asked to write a book which would use a vocabulary of no more than 200 mainly single syllable words. He did so, and The Cat in the Hat was a runaway success. When asked how he did it, he explained that he could have completed his task by using only 50 words. And just to prove his point, he then wrote his greatest work of all time, Green Eggs and Ham - doing precisely that.
Dr Seuss's magic was his ability to break down complex concepts by using simple words and, along the way, telling a story with moral application to children.
If only Dr Seuss could have been a High Court Judge! how wonderful it would be if he could have used his genius to turn a complicated employment law case into a simple one - with a lesson for those who might care to read it.
Whilst not pretending to be Dr Seuss, a recent case offers up a fact situation which would have well suited his abilities. Its factual background was complex - but it offered a simple lesson for employers who might care to learn from it.
Perhaps if he had turned his hand to it, Dr Seuss would have started his tale as follows:
At sea there are such things to see,
if you can see beneath the sea.
And (skipping to its conclusion) might have finished thus:
The man who saw then got the bends.
And that is how our story ends.
The decision in Diveco Ltd v The Department of Labour (Unreported, High Court, Auckland, 11 November 2003) concerned an appeal from a health and safety prosecution.
The Ports of Auckland Ltd needed information about a certain part of seabed in order to make a resource management application. The port company contracted with a company which took responsibility for the job. That company contracted with Diveco - which was able to provide an appropriate boat, digital camera equipment and a dive supervisor. In turn, Diveco retained the services of a diver - Mr Morgan - to carry out the work on the seabed.
In other words, by this convoluted contractual arrangement, Morgan was the person who ultimately agreed to travel to the ocean floor to see what he could see for the port company.
Morgan performed his work by utilising a technique known as "bounce diving". Put simply, he made a series of dives, spending no more than ten minutes at the surface between them.
The trial judge found that bounce diving increased the risk of decompression illness. Following one particular day's work, Morgan displayed symptoms which were subsequently diagnosed as "the bends". He subsequently required treatment in a decompression chamber.
It is perhaps self evident that such a thing should not happen to a professional diver. But who (if any one) could be said to be at fault?
The health and safety inspectors of the Department of Labour alleged that Diveco was to blame because it knew (or ought to have known) that bounce diving was a hazard for the purposes of the health and safety legislation - and that it was in control of Morgan's "place of work".
And therein lay the problem.
Exactly where was Morgan's place of work (that was said to be controlled by Diveco)?
It could not be the open sea: a previous decision (involving a diving tragedy in the Marlborough Sounds area) had established that open water could not be regarded as a place of work - at least not one that could truly be said to be within anyone's real control.
But what about the boat? Diveco was in control of it - and Morgan had prepared for his dives on the boat - and his work was connected with work being performed on it. Not so, concluded the High Court. At the time that the prosecution was brought, the definition of "place of work" in the health and safety legislation did not include mobile workplaces. Because Diveco's boat was not in any sense a building (or other permanent structure) Diveco could not owe any relevant obligations allowing a prosecution to be brought.
The position would, however, have been different had the prosecution been brought today (after the amendments brought about to the health and safety legislation last May). Employers - and contractors - now owe obligations in respect of mobile places of work.
In other words, had the prosecution been brought now, Diveco could not have availed itself of this offence. And that, of course, is the valuable lesson that those in charge of mobile workplaces should take from this sad story.
How, then, might Mr Giesel have put it?
I can get off this, yes I can. Thank you, thank you, Sam I am.
