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WorkSafe has charged a health and safety consultant for health and safety failures relating to its services to another company.

Case details

S is a health and safety consulting company that designs health and safety systems, and provides assistance with auditing, consulting and support packages.

S was engaged to assist Westown Haulage Limited and Westown Agriculture Limited (collectively Westown) with health and safety services. In August 2020 and employee (Mr Bowling) of Westown was injured after moving plant collied with him on work premises owned by Westown.

WorkSafe investigated and charged and sentenced Westown under Health and Safety at Work Act 2015 (HSWA). S was also charged, and S subsequently applied to have the charge dismissed.

It was alleged that S had a very close relationship with Westown’s health and safety operations and that it was reasonably practicable for S to have:

• Developed, documented and provided to Westown Agriculture Limited an effective traffic management plan for the site.
• Ensured effective monitoring, supervision, and review of work carried out by its workers for or on behalf of Westown.
• Effectively consulted, co-operated and coordinated activities with Westown as to traffic management at the Site.

WorkSafe Charges

The charge against S (under s 36(2) of HSWA) alleges:

• S failed to comply with its duty to ensure that the health and safety of other persons, including Mr Bowling, was not put at risk from work carried out by S in providing health and safety services; and
• The above failure exposed an individual to a risk of death or serious injury.

The Decision

A charge can be dismissed where the evidence is poor and its clear that there is no case to answer.

S argued that the s 36(2) duty does not apply to what occurred in this case, and that even if it did, it would not have been able to fulfil that duty in the way WorkSafe alleges it should have. The Court disagreed and held (amongst other points) that:

• A PCBU may arise when a person is contracted to provide consultancy services. They are just as much a part of the conduct of the business as a person which provides plant or maintenance.
• There was clear evidence that S was responsible for actioning the traffic management plan. S’s description to clients about their services of ensuring compliance and developing policies and procedure affirmed that.
• S had its own duty under s 36(2) to provide a traffic management plan arising from it being a person conducting the business of Westown. The failings of Westown were not relevant to S’s failings.
• S 36(2) is not restricted to “negative” actions as argued by S.

The Judge said that there was a case to answer and that the charge should not be dismissed.

Message for Health and Safety Consultants

This case is of interest given it involves prosecution of a health and safety consultancy in New Zealand for breaches of the HSWA. If your business is providing consultancy services, it is essential to ensure that the health and safety of other people is not put at risk by a failure to carry out work or work carried out as part of the conduct of the business.

This case also highlights the importance of accounting for all possible risks in the workplace, even if you may not consider it your workplace.

If you are a consultancy company and would like to discuss what this means for you, please contact our team.

Disclaimer: We remind you that while this article provides commentary on employment law, health and safety and immigration topics, it should not be used as a substitute for legal or professional advice for specific situations. Please seek legal advice from your lawyer for any questions specific to your workplace.