Safe Business Solutions Limited v Worksafe New Zealand
[2025] NZHC 979
•28 April 2025
ORDER PROHIBITING PUBLICATION OF NAME OF [PERSON A] PURSUANT TO S 202 CRIMINAL PROCEDURE ACT 2011. SEE
IN THE HIGH COURT OF NEW ZEALAND NEW PLYMOUTH REGISTRY
I TE KŌTI MATUA O AOTEAROA NGĀMOTU ROHE
CRI-2024-443-000039
[2025] NZHC 979
BETWEEN SAFE BUSINESS SOLUTIONS LIMITED
Appellant
AND
WORKSAFE NEW ZEALAND
Respondent
Hearing: 6 November 2024 Counsel:
F Pilditch KC and H Twomey for Appellant R C Woods and T Braden for Respondent
Judgment:
28 April 2025
JUDGMENT OF GRAU J
[Conviction appeal]
An appeal against conviction under the Health and Safety at Work Act 2015
[1] Under the Health and Safety at Work Act 2015 (HSWA), a person conducting a business or undertaking (a PCBU) has a broad duty to ensure, so far as is reasonably practicable, the health and safety of its workers while they are at work in the business or undertaking. A PCBU must also ensure that the health and safety of other persons is not put at risk from work carried out as part of the conduct of the business or undertaking.1 A breach of that duty is a criminal offence.2
1 Health and Safety at Work Act 2015 (HSWA), s 36.
2 HSWA, ss 47–49.
SAFE BUSINESS SOLUTIONS LIMITED v WORKSAFE NEW ZEALAND [2025] NZHC 979 [28 April 2025]
[2] The appellant, Safe Business Solutions Limited (SBS), is a health and safety consultancy. SBS was engaged as an external health and safety consultant by Westown Haulage Limited and Westown Agriculture Limited (Westown), two companies with shared premises involved in agricultural and horticultural transportation and operation services. SBS identified that Westown needed a traffic flow plan for its new site, which SBS agreed it would action as an additional service (it was not included in the package of support services under which it had been engaged).
[3] On 24 August 2020, at Westown’s premises, a Westown employee was injured after being hit by a telehandler driven by another employee.3 No traffic management plan had been put in place at this time, but the creation of a draft plan was underway.
[4] Both Westown and SBS were prosecuted under the HWSA. Westown pleaded guilty. SBS applied for the charge against it to be dismissed.4 The basis of SBS’s application was that s 36(2) of the HSWA did not impose a duty on SBS to ensure the health and safety of Westown’s workers was not put at risk; and Westown’s workers were not put at risk from work carried out as part of the conduct of SBS’s business or undertaking. Judge Walsh declined to dismiss the charge.5 SBS subsequently pleaded guilty and was sentenced.6
[5] SBS now appeals against its conviction, arguing that its guilty plea was induced by a ruling which contains an error of law and/or that, on the admitted facts, SBS could not have been convicted of the offence with which it was charged.
[6]The prosecutor, WorkSafe, supports the District Court’s decision.
3 A telehandler is similar in appearance to a tractor, but is lower to the ground, with a boom in front for lifting. It is able to carry out tasks like a mobile crane. The boom restricts visibility.
4 Pursuant to s 147 of the Criminal Procedure Act 2011.
5 WorkSafe New Zealand v Safe Business Solutions Ltd [2023] NZDC 13435 [Decision on appeal].
6 WorkSafe New Zealand v Safe Business Solutions Ltd [2024] NZDC 19761. The sentence was a
$70,000 fine.
Background
SBS’s engagement with Westown
[7] SBS offers health and safety consulting services, including designing health and safety systems for other businesses. In 2016, SBS was engaged to advise Westown in relation to its bulk agricultural storage and transport operation in New Plymouth. Westown had purchased a “Premium Care Package” from SBS, which was effectively a support service package that included quarterly visits by SBS, an annual review, and telephone support. Sometime in or around the first half of 2019, Westown moved its operations to a new site in New Plymouth (the Site) as it had outgrown its old premises. Work at the Site involved moving mobile plant, light and heavy motor vehicles, and farm machinery.
[8] On 16 July 2019, at the request of SBS, a WorkSafe inspector carried out a workplace assessment at the Site which had just started being used. [Person A], the SBS consultant allocated to Westown, was also present.7 Following the assessment, the WorkSafe inspector recommended that Westown improve (amongst other things) its traffic management at the Site.
[9] On 18 September 2019, SBS undertook one of its health and safety visits to the Site. [Person A] noted on the Health and Safety Visit Report that a traffic management plan (TMP) was required after the new office had been built on the Site. [Person A] had delegated to himself the responsibility to ensure the TMP was actioned. The TMP would be an additional service because it was not included in the Premium Care Package that Westown had purchased.
[10] On 28 February 2020, SBS made another health and safety visit to the Site. This time the Health and Safety Visit Report recorded a “desperate need” for a TMP, but also noted that a TMP was hard to put in place when the new offices were not yet built. Despite identifying that need, no interim traffic management measures were put in place for the Site. [Person A] and Westown agreed the TMP should be implemented after construction of the office was completed. At a health and safety meeting SBS
7 [Person A] was also a Director of SBS but ceased to be so on 12 June 2020.
and Westown agreed on a trial of a flow of traffic direction around the main building, but they did not formally document, implement, or enforce anything.
[11] By around August 2020, the offices were completed, the office staff had moved in, and the Site was fully operational. However, there was still no TMP in place, although [Person A] was in the process of creating a draft TMP. The only physical safety measure in place was a small multi-hazard board which stated a speed limit of 20 km/h.8 It was too small to be legible from a vehicle travelling at that speed.
The accident
[12] On 24 August 2020, a Westown employee, Mr Bowling, was injured at the Site after a telehandler collided with him. Mr Bowling had walked from the workshop across the yard to a wash bay area to talk to another employee, Mr Edmunds, who was washing the telehandler.
[13] After the telehandler had been washed, Mr Edmunds began to drive it forward slowly off the wash pad. The boom of the telehandler, which had a bucket attachment, was raised. Mr Edmunds briefly looked over his shoulder after water hit the back of the telehandler. At the same time, Mr Bowling was standing at the edge of the wash bay with his back turned to the telehandler and was using his mobile phone to clock out for the day.9 Mr Bowling was knocked from behind by the bucket of the telehandler which hit the side of his left leg just above the knee. He was knocked into the bucket and hit his head.
[14] Mr Edmunds continued to drive the telehandler into the shed. He had not noticed that Mr Bowling had been hit and was in the bucket of the telehandler. Another employee in the wash bay area saw Mr Bowling in the bucket with his leg hanging out. That employee yelled out to Mr Edmunds and told him not to put the bucket down or it would crush Mr Bowling’s leg. He also noticed Mr Bowling was unconscious in
8 It is not clear who erected the multi-hazard board, although “new sign for gateway” was another action [Person A] had identified in September 2019 to be actioned by SBS.
9 Those actions were in breach of Westown’s work instruction to workers not to use mobile phones in the yard.
the bucket. He helped Mr Bowling out of the bucket as Mr Bowling was regaining consciousness.
[15] A Westown director, Mr Thomas, had seen someone in the bucket as the telehandler drove past his office window. He telephoned Mr Edmunds, asking who was in the bucket. Mr Bowling then went to see Mr Thomas and told him that he had been hit by the bucket of the telehandler. He said his leg was sore, but he did not think it was broken, nor was his leg bleeding. Mr Bowling declined a ride home. After Mr Bowling had driven himself home, he got out of his car and felt dizzy. He told his wife to take him to the Emergency Department, which she did.
[16] Mr Bowling suffered both bifrontal intracerebral and subdural haemorrhages resulting in three days hospitalisation, loss of sense of smell and taste, and sensitivity to light. As a result of his injuries, he was not allowed to drive. Doctors stated that rest in a quiet environment and ongoing concussion clinic management was required. Mr Bowling could not work for nine months after the accident, and when he did start working again, he was working reduced hours driving smaller vehicles.
The charge
[17] The two Westown companies and SBS were subsequently charged under the HSWA. As above, the Westown entities pleaded guilty and have been sentenced.
[18]SBS was charged under s 36(2) of the HSWA which provides as follows:
36 Primary duty of care
…
(2)A PCBU must ensure, so far as is reasonably practicable, that the health and safety of other persons is not put at risk from work carried out as part of the conduct of the business or undertaking.
[19]The offence description was as follows:
Being [a] PCBU having a duty to ensure, so far as is reasonably practicable, that the health and safety of other persons, including Grant Bowling, was not put at risk from work carried out as part of the conduct of the business or undertaking, namely providing health and safety services, failed to comply
with that duty, and that failure exposed any individual to a risk of death or serious injury.
[20] The particulars of the charging document alleged that it was reasonably practicable for SBS to have:
1.Developed, documented, and provided to Westown Agriculture Limited an effective traffic management plan for 180 Cowling Road, New Plymouth (the Site).
2.Ensured effective monitoring, supervision, and review of work carried out by its workers for or on behalf of Westown Haulage Limited and Westown Agriculture Limited.
3.Effectively consulted, co-operated and co-ordinated activities with Westown Agriculture Limited and Westown Haulage Limited as to traffic management at the site.
The District Court’s decision
[21] In its application to dismiss the charge under s 147 of the Criminal Procedure Act 2011 (CPA), SBS argued that the duty in s 36(2) of the HSWA was not one that applied to SBS’s service output (its work product), but was instead an occupational duty that arose from the carrying out of its work (its work activity).10 This argument relied on the reasoning of Judge Thomas in WorkSafe New Zealand v National Emergency Management Agency (NEMA), a decision dismissing a charge against NEMA in relation to the Whakaari White Island eruption in 2019.11
[22] In that case Judge Thomas had said that while s 36(2) did extend a PCBU’s duty of care to other people affected by the carrying out of the work, the legislative background demonstrated that the duty was intended to cover “work activity” rather than “work product”.12 But NEMA did not physically carry out any work on Whakaari; it did not send any workers there. Judge Thomas held that WorkSafe’s proposed duty went beyond worker and workplace safety and Parliament could have been expected to have made it clear if it was expanding the duty beyond what used to be called “occupational health and safety”.13
10 Decision on appeal, above n 5, at [20]–[22].
11 WorkSafe New Zealand v National Emergency Management Agency [2022] NZDC 8020 [NEMA].
12 At [18].
13 At [21].
[23] WorkSafe opposed SBS’s s 147 application, submitting that, because SBS had taken on a health and safety role in Westown’s business, s 36(2) extended to impose duties on SBS for the conduct of Westown’s work. WorkSafe contended that SBS misunderstood s 36(2) as the business or undertaking did not necessarily have to be the business or undertaking that SBS conducted in its own right.14 Rather, a person playing a part in any business or undertaking was a PCBU of that business or undertaking.15 WorkSafe said that on SBS’s approach, s 36(2) would have to be read as requiring a PCBU to manage risks arising from work it carries out or work carried out by its workers. It said this would be inconsistent with the words of the provision and would amount to a return to the contractual focus of the preceding legislation.16
[24] SBS had also argued that the duty in s 36(2) was a “negative” duty to refrain from putting others at risk from SBS’s work.17 Based on the decision in NEMA, SBS said there was a distinction between a PCBU’s “work activity” and their “work product”, with only the former being able to result in the relevant risks under s 36.18 SBS also observed that to breach the s 36(2) duty, the PCBU needed to have introduced a hazard or risk.19 The risk here was of pedestrians coming into contact with vehicles, but that risk would have been present even if SBS had never been involved.
[25] Judge Walsh began by setting out the two questions he saw as being relevant: whether the duty in s 36(2) could extend to cover the situation; and whether there was sufficient evidence of a breach in that SBS “had sufficient control and influence to act in the way WorkSafe alleges it did not”.20
[26] Judge Walsh disagreed with the reasoning in NEMA. He stated that the focus of the duties in the HSWA was on people, rather than on work. There was no reason to distinguish between a “work product” and a “work activity”, nor was there a
14 Decision on appeal, above n 5, at [50].
15 At [50].
16 At [56].
17 At [88].
18 At [72].
19 At [28].
20 At [70].
meaningful distinction between ss 36(1) and (2) and positive and negative duties.21 The distinction between a “work product” and a “work activity” was not a distinction in the HSWA itself, and “someone being affected by a work product meant the same thing as [someone being] affected by the carrying out of work”.22
[27] The Judge also disagreed that the reading of s 36(2) proposed by WorkSafe would create an extremely broad public duty and would impose a significant, if not impossible, burden on PCBUs. His Honour’s view was that the exercise of a duty is limited to the amount of influence and control a PCBU has, and the purpose of the HSWA “plainly” shows this broad public duty is warranted.23
[28] His Honour rejected the submission that SBS needed to have created a new risk for the duty to apply. He stated:24
What matters is that SBS began acting within Westown’s business and as such became a PCBU in respect of the matters for which it was acting. It therefore inherited a duty to address risk insofar as it had influence and control to do so.
[29] The Judge noted that, under the HSWA, two PCBUs can have the same duty, and a person sufficiently involved in a business is a PCBU in relation to the business.25 The question was whether SBS was sufficiently engaged in the conduct of the business or undertaking. This engagement could be in respect of only part of the business.26
[30]On this point, the Judge concluded:27
WorkSafe’s case, taken at its highest, is that SBS was sufficiently involved in the business of Westown by fulfilling the health and safety role of the business. It was therefore a PCBU and as such had duties in respect of that business under the Act.
21 At [83]–[91].
22 At [76].
23 At [85].
24 At [94].
25 At [97].
26 At [104].
27 At [98].
Approach on appeal
[31] The overriding test in a conviction appeal following a guilty plea is whether a miscarriage of justice will result if the conviction is not overturned.28 A miscarriage of justice is defined in s 232(4) of the CPA as:
(4)… any error, irregularity, or occurrence in or in relation to or affecting the trial that—
(a)has created a real risk that the outcome of the trial was affected; or
(b)has resulted in an unfair trial or a trial that was a nullity.
[32] For the purposes of subs (4), a “trial” includes a proceeding in which an appellant pleaded guilty.29 A miscarriage may have occurred in the context of a guilty plea being entered where:30
(a)the appellant did not appreciate the nature of, or did not intend to plead guilty to, a particular charge;
(b)on the admitted facts, the appellant could not in law have been convicted of the offence charged;
(c)the guilty plea was induced by a ruling which contained a wrong decision on a question of law; or
(d)where trial counsel errs in their advice as to the non-availability of certain defences or if counsel acts so as to wrongly induce a decision to plead guilty under the mistaken belief or assumption that no tenable defence existed or could have been advanced.
[33] These examples, however, are not a closed list, and should not “operate to confine or restrict the inquiry, which is whether justice has miscarried”.31 The
28 Re Solicitor-General’s Reference (No 1 of 2023) [2023] NZSC 151, [2023] 1 NZLR 457 at [39].
29 Criminal Procedure Act 2011, s 232(5).
30 Re Solicitor-General’s Reference (No 1 of 2023), above n 28, at [40]–[41]; citing R v Le Page
[2005] 2 NZLR 845 (CA) at [17]–[19]; and Merrilees v R [2009] NZCA 59 at [34].
31 Re Solicitor-General’s Reference (No 1 of 2023), above n 28, at [43].
circumstances must nevertheless be exceptional, bearing in mind the policy considerations underpinning guilty pleas. Those considerations include finality and individual autonomy.32
[34]SBS’s appeal is said to fall within categories (b) and (c) listed above.
The parties’ positions
SBS
[35] On behalf of SBS, Mr Pilditch KC submits that the District Court Judge erred in his interpretation of the duty imposed on SBS by s 36(2). He submits the Judge’s interpretation is not supported by the plain language of s 36, which is couched in language that confines it to the same duty owed to SBS’s own workers arising from the work SBS carries out. In other words, the primary duty for SBS is to ensure the health and safety of its own workers, and to ensure the health and safety of others is not put at risk by the work of that same PCBU. Accordingly, s 36 indexes the duty to the work carried out by a PCBU itself. It is not correct, as WorkSafe has argued, that a PCBU can have a duty in relation to work carried out by another PCBU even though it does not itself conduct that work.
[36] SBS notes its application before the District Court was approached with reference to the distinction between work activity and work product as set out in the NEMA decision. This was because the offence description communicated to SBS that what WorkSafe was criticising was the manner in which SBS carried out its consultancy work. SBS questions how its consultancy work gave rise to a risk of a vehicle collision with a person when SBS did not operate or control the Site.
[37] Accordingly, SBS considered WorkSafe must have been alleging that it was the output of its service that generated the risk, and so it relied on the NEMA decision to say that s 36(2) amounted to a duty arising from its work activity and was not product liability from the output of its work.
32 At [44]–[45].
WorkSafe
[38] As it had submitted in the District Court, WorkSafe’s position is that, in providing health and safety services to Westown, SBS was conducting part of the business or undertaking at the Site. On that basis, SBS was a PCBU in respect of that business or undertaking—that is, Westown’s business—such that it was subject to duties under s 36 in respect of that business or undertaking. Those duties included the duty under s 36(2) to ensure that the health and safety of other persons, including Mr Bowling, was not put at risk from work carried out as part of the conduct of that business or undertaking. In this case, the relevant part of the business or undertaking was the movement of vehicles and plant at Westown’s premises.
[39] Ms Woods submits for WorkSafe that the HSWA is intended to provide a flexible framework designed to give the highest level of protection to workers and other persons from risks arising from work. There is no chance of overreach because of the requirement in s 30 that, in order to be liable under the HSWA, a person must have the ability to influence and control the matter to which the risks relate. She says this is a significant limit on s 36. A PCBU will only be required to take those steps which are reasonably practicable, by reference to that PCBU’s influence and control. This limitation ensures a duty is commensurate to the nature and extent of the PCBU’s involvement in conducting the business or undertaking.
[40] Ms Woods says that, given the nature of the role of a health and safety consultant engaged by another PCBU to provide health and safety systems, policies, and advice, the health and safety consultant is likely to have a degree of control or influence over matters of health and safety within the business of the PCBU that has engaged them. Where the consultant assumes responsibility for specific health and safety related tasks, their degree of influence and control in respect to that matter will be elevated. This applies to SBS, given it had assumed the responsibility for preparing the TMP, and it was reasonably practicable for SBS to have done so.
The Health and Safety at Work Act
[41] The main purpose of the HSWA is to provide a “balanced framework” to secure the health and safety of workers in workplaces. This purpose is to be achieved by:33
(a)protecting workers and other persons against harm to their health, safety, and welfare by eliminating or minimising risks arising from work or from prescribed high-risk plant; and
(b)providing for fair and effective workplace representation, consultation, co-operation, and resolution of issues in relation to work health and safety; and
(c)encouraging unions and employer organisations to take a constructive role in promoting improvements in work health and safety practices, and assisting PCBUs and workers to achieve a healthier and safer working environment; and
(d)promoting the provision of advice, information, education, and training in relation to work health and safety; and
(e)securing compliance with this Act through effective and appropriate compliance and enforcement measures; and
(f)ensuring appropriate scrutiny and review of actions taken by persons performing functions or exercising powers under this Act; and
(g)providing a framework for continuous improvement and progressively higher standards of work health and safety.
[42] The importance of the first purpose of protecting workers and other persons against harm to their health, safety, and welfare is made clear by s 3(2) of the HSWA. Section 3(2) emphasises that regard must be had to the principle that, “workers and other persons should be given the highest level of protection against harm to their health, safety, and welfare from hazards and risks arising from work” as is reasonably practicable.34
[43]The HSWA creates the primary duty of care in s 36.
[44] Under s 36(1), a PCBU must ensure so far as is reasonably practicable, the health and safety of:
33 HSWA, s 3(1).
34 Section 3(2).
(a)workers who work for the PCBU, while the workers are at work in the business or undertaking; and
(b)workers whose activities in carrying out work are influenced or directed by the PCBU, while the workers are carrying out the work.
[45] As noted above, s 36(2) provides that a PCBU must ensure, so far as is reasonably practicable, that the health and safety of other persons is not put at risk from work carried out as part of the conduct of the business or undertaking.
[46] Subsection (3), without limiting subs (1) or (2), places further requirements on PCBUs to ensure, as far as is reasonably practicable:
(a)the provision and maintenance of a work environment that is without risks to health and safety; and
(b)the provision and maintenance of safe plant and structures; and
(c)the provision and maintenance of safe systems of work; and
(d)the safe use, handling, and storage of plant, substances, and structures; and
(e)the provision of adequate facilities for the welfare at work of workers in carrying out work for the business or undertaking, including ensuring access to those facilities; and
(f)the provision of any information, training, instruction, or supervision that is necessary to protect all persons from risks to their health and safety arising from work carried out as part of the conduct of the business or undertaking; and
(g)that the health of workers and the conditions at the workplace are monitored for the purpose of preventing injury or illness of workers arising from the conduct of the business or undertaking.
[47] In addition to the primary duty of care in s 36, there are a number of “upstream” duties imposed on PCBUs. For example, ss 37 and 38 impose duties on PCBUs who manage or control a workplace, or the fixtures, fittings and plant at those workplaces, respectively. Such PCBUs must ensure, so far as is reasonably practicable, that the workplace, or its fixtures, fitting and plant, is without risks to the health and safety of any person. Other upstream duties in ss 39 to 43 concern PCBUs in the supply chain who design, manufacture, import, supply or install/construct/commission plant,
substances or structures. They are similarly required, so far as it is reasonably practicable, to ensure the plant, substances and structures they design, manufacture or supply are without health and safety risks in a workplace.
[48]The phrase “reasonably practicable” is defined in the HSWA as:
22 Meaning of reasonably practicable
In this Act, unless the context otherwise requires, reasonably practicable, in relation to a duty of a PCBU set out in subpart 2 of Part 2, means that which is, or was, at a particular time, reasonably able to be done in relation to ensuring health and safety, taking into account and weighing up all relevant matters, including—
(a)the likelihood of the hazard or the risk concerned occurring; and
(b)the degree of harm that might result from the hazard or risk; and
(c)what the person concerned knows, or ought reasonably to know, about—
(i)the hazard or risk; and
(ii)ways of eliminating or minimising the risk; and
(d)the availability and suitability of ways to eliminate or minimise the risk; and
(e)after assessing the extent of the risk and the available ways of eliminating or minimising the risk, the cost associated with available ways of eliminating or minimising the risk, including whether the cost is grossly disproportionate to the risk.
[49] The HSWA also sets out key principles that relate to duties. Section 30(1) sets out that a duty imposed on a person requires them:
(a)to eliminate risks to health and safety, so far as is reasonably practicable; and
(b)if it is not reasonably practicable to eliminate risks to health and safety, to minimise those risks so far as is reasonably practicable.
[50] A person must comply with the requirements in s 30(1) “to the extent to which the person has, or would reasonably be expected to have, the ability to influence and control the matter to which the risks relate”.35 Further, it is not possible to contract
35 Section 30(2).
out of any duty,36 or insure against liability to pay a fine under the HSWA. A person must not enter into any such policy, which is an offence under the Act.37
[51] Duties are not transferable.38 However, a person may have more than one duty,39 and more than one person may have the same duty at the same time.40 If that is the case, each duty holder must comply with that duty to the standard required under the HSWA.41
[52] The HSWA also prescribes criminal offences for breaches of duty.42 Reckless endangerment is the most serious offence,43 attracting a maximum penalty of five years’ imprisonment and a fine of $600,000 for an individual who is a PCBU or an officer of a PCBU. For all other persons who are not individuals, the maximum fine is $3 million. The second most serious offence, the one that SBS pleaded guilty to in this case, is failing to comply with a duty that exposes an individual to the risk of death or serious injury or illness.44 That offence attracts a maximum penalty of $300,000 for an individual who is a PCBU or an officer of a PCBU, or a fine of $1.5 million for non-individuals. There is also an offence of lesser seriousness requiring proof only of a failure to comply with a duty.45
[53] The concept of a PCBU is central to the scheme of the HSWA. As Moore J noted in the recent decision of Whakaari Management Ltd v WorkSafe, the concept was adopted to ensure duties aimed at ensuring workplace health and safety were not simply on employers, but on all persons conducting a business or undertaking.46 A PCBU is very broadly defined in s 17, effectively including any person who conducts a business or undertaking, whether alone or with others, aside from limited exceptions.47 Any person (natural or legal) undertaking any form of activity is likely
36 Section 28.
37 Section 29.
38 Section 31.
39 Section 32.
40 Section 33(1).
41 Section 33(2).
42 Sections 47–49.
43 Section 47.
44 Section 48.
45 Section 49.
46 Whakaari Management Ltd v WorkSafe New Zealand [2025] NZHC 288 at [117].
47 HSWA, s 17. See subs (1)(b) for the exceptions.
to be covered. A “person” includes “the Crown, a corporation sole, and a body of persons, whether corporate or unincorporate”.48
[54] A “worker” is defined as “an individual who carries out work in any capacity for a PCBU”, including as an employee, a contractor or subcontractor (and their employees), or as an employee of a labour hire company assigned to work in the business or undertaking.49 Also included are apprentices or trainees, people gaining work experience or undertaking a work trial, and volunteer workers.50
[55] “Workplace” is also defined.51 It is “a place where work is being carried out, or is customarily carried out, for a business or undertaking”.52 It includes any place where a worker goes or is likely to be while at work (which includes vehicles, vessels, aircrafts, ships, or other mobile structures).53
[56] As Downs J has commented, what stands out is the breadth of duties created by the HSWA, the Act’s emphasis of its purpose, the breadth of the concept of a PCBU, and “the Act’s emphatic rejection of form in the advancement of purpose”. His Honour said those features left no room for the conclusion a PCBU must arise in a particular way.54
Analysis
[57] Unfortunately, in this case the parties appear to have been arguing at cross purposes. As well, the terminology of “work product” and “work activity” from the NEMA decision is, in my view, complicating and unhelpful. Nor is it helpful to use terminology such as “inheriting a duty” as the District Court did. It is the words of the HSWA, informed by its purpose, that must be given primacy. Accordingly, I have found the approach of Downs J in Dong to be of the most assistance, with its focus on the Act itself and its purpose.55
48 Section 16, definition of “person”.
49 Section 19(1)(a)–(d).
50 Section 19(1)(f)–(h).
51 Section 20.
52 Section 20(1)(a).
53 Section 20(1)(b) and (2).
54 WorkSafe New Zealand v Dong SH Auckland Ltd [2020] NZHC 3368, (2020) 17 NZLER 841 [Dong] at [28]–[29].
55 Dong, above n 54.
Does s 36(2) apply to health and safety service providers?
[58] SBS is clearly a “person conducting a business or undertaking” when it is a business that provides health and safety advice and services to other businesses, as it did to Westown. In agreeing to provide a TMP to Westown as a service additional to its existing agreement with Westown to provide health and safety services, and undertaking steps to do so (with [Person A] being in the process of creating a draft TMP at the time the accident happened), it was a PCBU in respect of that additional service.56 I note here that the Ministry of Business, Innovation and Employment’s (MBIE) report on the Health and Safety Reform Bill 2014 (the Officials’ Report) rejected a submission that the meaning of “supply” under the Act should be broadened to include the supply of services such as information technology or health and safety services. It took that position on the basis that “[t]he supply of services would be covered, where appropriate, by the primary duty of care”.57 That must be the case, given the broad wording of the primary duty, consistent with the “highest” level of protection against harm the Act seeks to provide.
[59] I do not accept SBS’s submission that health and safety service providers were not intended to be within the scope of s 36(2). The background to the development of the Australian Model Work Health and Safety Bill (the Model Act) on which the HSWA is based, and of the HSWA itself, makes this clear:
(a)The creation of a specific duty for occupational health and safety providers was rejected in the Model Act on the basis that such providers were considered to be covered by the general duty of care.58
(b)The select committee that considered the Health and Safety Reform Bill 2014 which later became the HSWA, also found that, while experts
56 I note that in Dong at [31], Downs J observed that given the nature of a PCBU, the issue was not whether the defendant had contractually agreed to do something, but whether it in fact was doing something.
57 Ministry of Business, Innovation and Employment Health and Safety Reform Bill: Officials Report to the Transport and Industrial Relations Committee – Part B (March 2015) (Officials’ Report) at 26.
58 Department of Employment and Workplace Relations National Review into Model Occupational Health and Safety Laws: First Report (October 2008) (the First Report); and Workplace Relations Ministers’ Council WRMC response to recommendations of the National Review into Model WHS Laws (January 2009) (WRMC response).
engaged to advise a PCBU on health and safety issues were not officers of the PCBU in question, they might themselves be a PCBU with duties under ss 36(1)(b) and 36(2).59
[60] Nor do I consider that the “upstream” duties in ss 37–43 of the HSWA mean that, if health and safety service providers were intended to be subject to a duty, there would be a specific upstream duty to that effect. As outlined above, those duties specifically concern PCBUs who manage or control workplaces,60 or fixtures, fittings and plants at those workplaces,61 as well as those who design, manufacture, import, supply and install/construct plants, substances or structures.62 In particular, the PCBUs covered by ss 39–43 may have no knowledge of, or involvement in, the business or undertaking utilising those plant, substances or structures.
[61] The position of such “upstream” PCBUs is thus distinct from the role of a health and safety consultant who is engaged by another PCBU. As noted by WorkSafe, the potential impact on health and safety within the business or undertaking from an “upstream” PCBU comes from a “more remote connection” which is not necessarily provided for under s 36. In contrast a health and safety consultant is likely to have direct involvement within the business it is providing its services to.
[62] The HSWA’s scheme makes it clear that it is intended to apply broadly to cover a wide variety of relationships and actors in a workplace. As acknowledged by Downs J in Dong, it emphatically rejects “form in the advancement of purpose”,63 that purpose being the protection of the health and safety of workers and other persons. In my view, therefore, it would be odd if health and safety consultancies were by implication exempted from any duty under the Act in relation to the work they do for another business. Such an exemption would not accord with the very wide protection the HSWA provides to people at workplaces. The very business of a health and safety consultancy is providing other businesses with health and safety advice and support,
59 Health and Safety Reform Bill 2014 (192-2) (Select Committee Report) at 5–6.
60 HSWA, s 37.
61 Section 38.
62 Sections 39–43.
63 Dong, above n 54, at [28].
and it has the obvious potential to affect the health and safety of people at the other business’s workplace. Indeed, it is intended to; in a positive way.
Construction of s 36(2)
[63] I reject SBS’s argument that the negative framing of s 36(2) means PCBUs need only ensure they do not do a positive act that risks the health and safety of other persons. I observe here that the Officials’ Report rejected a submitter’s concern that the Health and Safety Reform Bill 2014 could be interpreted as requiring a positive act to constitute breach of a duty, with the submitter noting that the previous Health and Safety in Employment Act 1992 (HSEA) had expressly included breach by inaction.64 As the Report noted, and with which I agree, carrying out work includes inaction or omission.
[64] In my view, it cannot be the case that a failure to do the work a PCBU agreed to do (as is the case here) removes liability. It would be contrary to the HSWA’s purpose of providing the highest level of protection to workers and others to read it as such. Although the s 36(2) duty is framed in more negative terms than the duty under s 36(1), as Judge Walsh pointed out, all duties under the HSWA require a PCBU to eliminate or minimise risks, which are clearly positive actions. And, as his Honour acknowledged, it may be reasonably practicable for a PCBU to ensure that a person is not put at risk by doing something positive, rather than simply refraining from doing something.65 That will depend on the nature of the work and the circumstances. In short, the wording of s 36(2) does not preclude a PCBU from having a duty to other persons that requires the PCBU to do something, rather than merely refrain from doing something.
[65] Additionally, I do not agree with the construction put forward by SBS that the duty in s 36(1) to a PCBU’s own workers is extended by s 36(2) to cover other persons, meaning the concern is about whether the same risks faced by the PCBU’s workers impact other persons as well. In the context of SBS’s business, this would suggest that
64 Officials’ Report, above n 57, at 52.
65 Decision on appeal, above n 5, at [89].
it simply owed a duty to ensure that its own workplace was safe for its workers and for other persons.
[66] Such a narrow reading of s 36(2) would significantly lessen the protection for people who may be affected by the work of a business. The reality of the work of a business in the 21st century is that it may not be limited to its own physical workplace, nor limited to physical work. The HSWA itself is of the 21st century and I have seen nothing to suggest it was intended to be limited in such a way. The breadth of duties it creates, and its purpose, leave no room for such limitation. As WorkSafe submitted, if Parliament had intended to restrict the duty to the risks posed to a PCBU’s workers, in conflict with the otherwise broad scope of the HSWA, it would have expressly provided as such.
[67] It is also apparent that Judge Walsh did not, as SBS contended, conflate ss 30 and 36 of the HWSA to find that whether or not a PCBU has a duty depends on its “influence and control.” Rather, when setting out the two matters that required determination, his Honour made it clear that “sufficient control and influence” concerns whether a duty was breached, rather than whether a duty existed.66 The Judge noted that SBS’s duty was to address risk “insofar as it had influence and control to do so”. I agree with SBS’s submission that, if an influence and control test was imported into s 36(2), it would cause difficulties for a PCBU in determining the scope of its duty. But that is not what the Judge did in this case. As I will discuss below, the Judge appropriately considered influence and control to be the mechanism employed by the Act to ensure an unreasonably wide duty is not imposed on any PCBU.67 Put shortly, the HSWA imposes a very broad duty, but s 30 ensures it is not unduly wide, by limiting that duty to what is within the PCBU’s influence and control.
[68] Consequently, I do not consider the Judge erred in his construction of s 36(2). He correctly determined that the negative framing of the provision did not preclude an omission from falling within its scope, did not limit the duty to the same risks posed to the PCBUs workers, and did not import an “influence and control” test into s 36(2).
66 Decision on appeal, above n 5, at [70].
67 See, for example, Sarginson v Civil Aviation Authority [2020] NZHC 3199, [2020] NZAR 349 at [34].
Was SBS’s guilty plea induced by a wrong decision?
[69] For the reasons that follow, I consider Judge Walsh was correct to find that SBS was subject to a duty under s 36(2) of HSWA, although I differ from his reasoning in some respects.
[70] I do not agree with the Judge’s finding that SBS “inherited” Westown’s duties towards its own employees. As with the adoption of concepts such as “work product” and “work activity” in the NEMA decision, “inherited” is a concept that puts a gloss on the Act and may lead to confusion. And it does not accord with the HWSA’s prohibition on transferring duties. Nor do I align with his Honour’s view, and the submission of WorkSafe, that SBS was itself conducting part of Westown’s business or undertaking. Rather, SBS and Westown had separate and overlapping duties arising from the work in relation to the Site that each was engaged in. Such overlapping duties are clearly anticipated in the HSWA, given it recognises that a PCBU can have more than one duty, and multiple PCBUs can have the same duty.68
[71] In this case, Westown’s work included the movement of traffic at the Site, and it consequently had a duty to ensure this work did not risk the health and safety of its workers. SBS’s work was to provide Westown with a TMP to reduce the risks to Westown’s workers from the movement of traffic at Westown’s site. As a PCBU in relation to its undertaking to provide a TMP to Westown, SBS had a duty under the Act to ensure that “other people” were not put at risk from its work in creating and supplying the TMP. The workers at Westown’s site were the “other people” who had the potential to be affected by the work SBS had agreed to do. It is of course the case that SBS did not itself create the relevant risk (from traffic at the Site) in this case. But SBS had agreed to assist Westown to reduce the risks to Westown’s workers from traffic movement at the Site. Thus, under the HSWA, SBS had its own duty not to put Westown’s workers at risk from the work it agreed to do.
[72] The short point is that is irrelevant that SBS was not conducting Westown’s business in which the risk arose. SBS had its own separate duty to the persons working
68 HSWA, ss 32 and 33.
at the Site arising from its work to provide the TMP to Westown. As noted above, the HSWA is clear that separate concurrent (or different) duties can arise.
[73] Section 30 of the HSWA answers any suggestion that the duty I have found the Act imposed on SBS is too wide. I agree with WorkSafe’s position, and Judge Walsh’s findings, that overreach is avoided by the requirement in s 30 that, in order to be liable under the HSWA, a person must have the ability to influence and control the matter to which the risks relate. This is a significant limit on s 36. For example, SBS could not itself physically control—or stop—traffic movement at Westown’s site. Thus, if it had provided a TMP and it was simply disregarded by Westown, it would be difficult to see any breach of duty arising. But that is a separate question to whether SBS had a duty in the first place. Overreach is avoided when a PCBU is only required to take those steps which are reasonably practicable, by reference to its influence and control.
[74] Therefore, as WorkSafe submits, SBS was only required to eliminate risks to health and safety, or otherwise to minimise those risks as far as it was reasonably practicable for it to do. In the present case, that might simply have been achieved by SBS doing what it said it would do, or, for example, by providing a temporary traffic plan, and/or adequate warning signage until the final TMP could be put in place.
[75] Consequently, I consider that the District Court did not err in finding that SBS had a duty under the HSWA. SBS had its own duty, concurrently held with Westown’s separate duty to its workers, as the Act provides for. As a result, SBS’s guilty plea was not induced by a ruling than contained a wrong decision on a question of law.
Could SBS have been convicted of the offence charged?
[76] The issue then arises whether on the agreed summary of facts, SBS could not in law have been convicted of the offence charged.
[77] When, as I have found, SBS had undertaken to provide a TMP to Westown, and thus had a duty to ensure other people were not put at risk by that work it had undertaken to do, its failure to do so amounted to a failure to undertake a reasonably practicable step. As the decision on appeal recorded, there was clear contemporaneous documentary evidence that [Person A] was responsible for actioning the TMP. That
was in contrast to an assertion by SBS that it would not be involved in that capacity, but it was consistent with SBS’s own description of its services which it offered to clients.69
[78] I agree with the District Court that WorkSafe’s evidence, taken at its highest, could prove an agreement between Westown and [Person A] that [Person A] would action a TMP. SBS’s reference to a lack of instructions and inability to engage and participate with Westown were not matters that showed SBS lacked the influence and control to act as WorkSafe alleged it should have. I note that, in the hearing, Mr Pilditch conceded that “despite the controversy around [Person A], it has to be accepted on behalf of [SBS]” that SBS undertook to develop a TMP for the premises.
[79] I therefore find that SBS could in fact have been convicted of the offence charged.
Conclusion
[80] I can understand the sense of grievance SBS feels from the circumstances in which the charge against it arose, when it appears that the SBS director, [Person A], had not been acting in SBS’s interests over the relevant period,70 and as the District Court said when SBS was sentenced, SBS was “very much left holding the baby”.71
[81] But the HSWA imposes a stringent regime to ensure there are “no gaps” in the protection of the health and safety of people at work.72 It cannot be correct that a health and safety service provider who had agreed to provide a plan to reduce the risk of harm to workers at a worksite, and failed to do so, is excluded from the very broad duties imposed under the HSWA. The construction of s 36(2) sought by SBS would amount to a rewriting of the provision that would revert the health and safety obligations of PCBUs back to what they were under the old HSEA regime.
69 Decision under appeal, above n 5, at [120]–[125].
70 SBS’s position is that there was ample evidence [Person A] deferred the preparation of the TMP so he could complete it after he left SBS and set up his own consultancy service, in breach of his restraint of trade clause.
71 WorkSafe New Zealand v Safe Business Solutions Ltd, above n 6, at [14].
72 Officials’ Report, above n 57, at 39.
[82]The appeal is therefore dismissed.
Grau J
Solicitors:
Robertsons Law, Auckland for Appellant WorkSafe New Zealand, Auckland for Respondent
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