First Defended Hearing Under the New Health & Safety at Work

Chapman Tripp’s Garth Gallaway, Partner in Litigation & dispute resolution, and Joseph Lill, Senior Solicitor in Litigation & dispute resolution, discuss the first defending hearing under the new Health and Safety at Work Act 2015, where they acted for Athenberry Holdings Limited. 

The first defended hearing under the new Health and Safety at Work Act 2015 has provided some helpful guidance from the court on the extent of the duty of care.

The case, concerning a fatality in a kiwifruit orchard, involved multiple duty holders and brought into play provisions in the Act designed to recognise the complexity of modern workplace relationships.

The context

The orchard, owned by Athenberry Holdings Ltd (Athenberry), supplied Zespri Group Ltd (Zespri) – which essentially meant that Zespri had substantial control over every aspect of the crop, through to picking, packing and marketing.

Zespri requires that the maturity testing of crops to determine ripeness must be undertaken by an independent organisation; and that the growers must use AgFirst Bay of Plenty Ltd (Agfirst) for the sampling. Zespri had a contractual relationship with AgFirst for this purpose – there was no contract between the growers and AgFirst.

Samplers are trained to minimise contact with the orchardist and to stick to formed tracks and mown areas within the kiwifruit blocks.

The Court describes Zespri as “the industry colossus” against which other players in the chain have no bargaining power.

A sampler was killed when her quad bike overturned on rough terrain adjacent to kiwifruit blocks at Athenberry. She was employed by AgFirst, which had been contacted, as required within the Zespri system, by a local packhouse, Hume Pack-N-Cool Ltd (Hume).

Her job required her to collect samples of around 90 kiwifruit for testing from each block. It did not require her to be in the area where the accident occurred – which was a rough unmown slope near one of the sampling areas.

AgFirst trains its samplers in quad bike riding (including assessing hazards) and instructs them to stay on mown grass. There were obvious tracks in and out of the area being sampled.

The case

WorkSafe brought charges against Athenberry, Hume, AgFirst and Zespri.

Zespri entered into a binding enforceable undertaking with WorkSafe, after which prosecution was discontinued. AgFirst, as the employer, pleaded guilty to a charge under section 36 and sentencing is yet to take place.

Athenberry and Hume successfully defended the charges against them. The Judge said it was not that WorkSafe had failed to prove its allegations beyond reasonable doubt, but that the court was “satisfied on the balance of probabilities that the evidence establishes both defendants have defences to the charges laid”.

WorkSafe’s approach was premised on the basis that owners engaging contractors would have to anticipate all potential hazards and take expert advice if they were not familiar with the specific vehicle or machine. Further, the lowest common denominator would have to be selected where operator competence was not able to be tested.

The defence expert, Melissa Vining, provided a systems-based analysis which examined the roles of the various PCBUs (persons conducting a business or undertaking) and identified their areas of responsibility within that framework.

The Court preferred this approach as “more in keeping with the nuanced and flexible approach adopted and mandated in the new legislation”. WorkSafe’s “narrower focus on each individual entity” was criticised as less apt for the complex work environment.

Reasonably practicable steps

WorkSafe argued that Athenberry should have had a competent person assess the property for hazards to quad bike riders and designate them with signage on a map or notify them through an induction. The Court observed that “[i]n order to undertake any such steps, however, it is axiomatic that Athenberry would have had to recognise that quad bike samplers faced risks posed by hazards on the orchard site.”

The Court found that in this case, the risk of the trained quad bike rider driving into the area of unmown grass was not reasonably foreseeable and Athenberry could not be expected to have taken the steps alleged by WorkSafe. The Court further said:

“In my view, reasonable foreseeability, assuming contractor competence and compliance is the appropriate standard to apply in such circumstances, and it is not practicable for a farmer or orchardist to identify potential hazards and assess risks predicated on contractor misbehaviour or incompetence that is not reasonably foreseeable.”

Influence and direction

The Act does not define this term and so the interpretation will be determined by the courts.   Giving the words their usual meaning, the Court identified five elements, at least one of which would need to be present for a factual finding of influence and direction:

• control over the practical carrying out of the work
• provision of advice
• specification of matters affecting the conduct or methods of work
• reporting requirements
• oversight or supervision.

The Court found that none of these applied to either Athenberry or Hume and the way in which samplers carried out their work was over an obvious bright line and outside the statutory test of “influence and control”.

Practical messages

• Whether the PCBU exerts influence or control will depend on the practical context.  It will not be as simple as ‘you own the land and are therefore liable for everyone and everything thing that might enter it’. In this case, neither Athenberry nor Hume had any control over the sampler, her training or her equipment.
• The “workplace” might differ between workers on the same site. The effective workplaces for the sampler were the kiwifruit blocks and the tracks linking them which were without hazards. The rough hill country, although on the same property, was outside the sampler’s workplace.
• Multiple duty holders should consider entering Memoranda of Understanding with other PCBUs to agree primary responsibility where there are overlaps. This may reduce their exposure to liability, or might at least influence the view of the courts.
• The Court had regard to expectations which had built up over time. In this case, that AgFirst had created an “industry standard” over many years of accepting unmown grass as a sufficient boundary for the operation of quad bikes, obviating the need to provide a full-property map. The extent to which this applies will be very much context driven.

Overall, the decision is a helpful example of how a system of “differing work arrangements will produce differing responsibilities” and how influence and control over a work activity determines the duties held by multiple PCBUs.

There is, however, one lingering concern – the approach taken by WorkSafe. WorkSafe’s case was that, notwithstanding Athenberry did not use quad bikes at the orchard and the samplers were trained appropriately, Athenberry had an obligation to assess every potential hazard for quad bikes on its 160ha property.

This is, in our view, contrary to WorkSafe’s guidance material and is a worrying, and plainly wrong, interpretation of the legislation.

Garth Gallaway and Joseph Lill acted for Athenberry Holdings Limited.

Garth Gallaway specialises in insurance and health & safety related civil litigation. Garth has extensive experience in advising clients on professional indemnity, statutory liability and public liability insurance and is one of New Zealand’s leading legal experts in the Health and Safety (H&S) area. He has a broad civil litigation practice and has appeared before all levels of the court system and before numerous specialist tribunals. He frequently acts for solicitors, accountants, real estate agents, valuers and a range of organisations in professional negligence proceedings. Garth is also experienced in alternative dispute resolution, especially mediation. Garth acts for employers in H&S investigations and prosecutions, both on direct instructions and through insurers. He has been involved in some of New Zealand’s highest profile coronial inquests, provides strategic legal advice to leading corporates and Boards on H&S matters and is regularly called on to speak on health and safety and insurance issues at industry conferences. He is recognised as a leading individual by Legal 500 Asia Pacific 2018 and as a leading lawyer by Chambers Asia Pacific 2018. Garth has been elected chair of the Arts Foundation of New Zealand and is a former member of the Film and Literature Board of Review. He is a trustee of the Christchurch Art Gallery Foundation and Honorary President of New Zealand Football. Garth has been a member of Radio Sport’s cricket commentary team (since 1996). Contact Garth at garth.gallaway@chapmantripp.com

​Joseph Lill is a senior solicitor in the litigation and dispute resolution team based in Christchurch. He specialises in health and safety as well as general civil litigation and insurance law. Joseph regularly supports clients during health and safety investigations by WorkSafe and other regulators. He has appeared in the High Court and District Court during both prosecutions and appeals. He also provides advice to clients on compliance with the requirements of the Health and Safety at Work Act 2015. Prior to joining Chapman Tripp, Joseph worked at a magic circle firm in London. Previously he was employed by the Ministry of Business, Innovation and Employment and at another New Zealand law firm. Joseph’s recent experience includes: appeared in the first defended hearing under the new Health and Safety at Work Act which involved a multi-party prosecution by WorkSafe New Zealand; appeared at the first sentencing appeal under the Health and Safety at Work Act; acted for a client who successfully obtained an enforceable undertaking after being charged by WorkSafe; advised on high hazard regulatory compliance for a major hazard facility, and, advised on claims arising out of the Canterbury earthquakes. Contact Joseph at joseph.lill@chapmantripp.com

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