The first defended hearing under the Health and Safety at Work Act 2015 (HSWA) required the District Court to consider the duties of a person conducting a business or undertaking (a PCBU) where work was carried out in the context of an “industry wide web of contracts, manuals and practises”.

In our previous article about the District Court’s judgment, we considered the issue of a PCBU’s ability to influence or direct the workers of another business. This article examines a collection of other thorny issues that were raised and determined by the Court:

  • What is a workplace?
  • What if an employee does something he/she was not meant to do?
  • Can PCBUs rely on contractors being competent?

Background

In May 2016, an employee of AgFirst Bay of Plenty Ltd had been tasked with obtaining kiwifruit maturity samples from Athenberry Holdings Ltd’s kiwifruit orchard. The orchard was located on a “generally hilly” 160 hectare site, and due to the size of the orchard, AgFirst’s employees used quad bikes to complete their work.

The employee had been conducting her work at a kiwifruit block on the orchard, and for reasons that remain unclear, she had driven her quad bike into an area of unmown grass on a sloping hill of the orchard. Tragically, the quad bike rolled onto her causing her death.

Athenberry was charged with failing to ensure the safety of a worker, and failing to provide a workplace that was without risks to the health and safety of a worker. It successfully defended both charges.

Where’s the Workplace?

A PCBU who manages or controls a workplace must ensure, so far as is reasonably practicable, that anything arising from the workplace is without risks to the health and safety of any person: section 37.

A “workplace” is defined to mean a place where work is being carried out, or is customarily carried out, and includes “any place where a worker goes, or is likely to be, while at work” unless the context requires otherwise.

The Court considered that the accident site – an area of unmown grass outside a kiwifruit block, as opposed to the formed tracks and kiwifruit vines on the blocks – could not be a kiwifruit sampler’s workplace. The Court concluded that while the accident site, being part of the orchard, would nominally fall within the definition of a workplace, the place where the work activity takes place was relevant and potentially decisive. The accident site was not a place that AgFirst’s employee was expected or had reason to go.

The Court’s approach is consistent with:

  • section 37(3), which deems that, with the exception of farm buildings, any other part of a farm is not a workplace unless work is being carried out in that part at the time; and
  • the District Court’s observations and findings in Department of Labour v Berryman [1996] DCR 121, which held that – while dealing with a different definition – a “place of work” was intended to mean a place where a person is working in more than a transitory sense.

The decision will provide some comfort to those in the agricultural, horticultural and other industries that where a worker is harmed in a place that was unrelated to his or her work, the PCBU is unlikely to have liability under section 37.

“Foolish Carelessness”

Part of Athenberry’s defence was that there was no need for it to provide any hazard information for areas outside the kiwifruit blocks and formed/mown access tracks, because it was not expected that the sampler would be outside of those areas. Athenberry also relied on its understanding that all quad bike riders were appropriately trained, and specifically instructed to remain on the formed tracks and the mown areas on the orchard.

The Court held that it cannot be reasonably practicable for an orchardist to “identify potential hazards and assess risks predicated on contractor misbehaviour or incompetence that is not reasonably foreseeable”.

That finding does not sit comfortably with decisions that the Courts have previously made. Under the Health and Safety in Employment Act 1992 (HSE), the Courts took the approach that an important object of the HSE was to promote a systematic approach to health and safety. Businesses were required to protect against workplace accidents that could result from employees’ “foolish carelessness” (for example: Eziform Roofing Products Ltd (2013) 11 NZELR 1; Waimea Sawmillers Ltd [2016] NZHC 915). This purpose, albeit differently worded, continues under the HSWA.

In Athenberry the Court distinguished Waimea Sawmillers Ltd on the facts, as it did not involve an orchard or farm employee. With respect, we consider the reason for distinguishing that line of reasoning was flawed.

The Courts have previously observed that workers do not always act in a common-sense or rational manner for many different reasons. The interpretation in Athenberry potentially reduces the notion that health and safety systems should take into account that workers will attempt to subvert controls that are put in place to manage hazards or risks or otherwise act in a manner which is careless or foolish. We consider that it would be contrary to the HSWA’s purposes if a PCBU’s duties were limited to where a worker acts in strict compliance with his or her employment obligations.

The Competent Contractor

In the Court’s view, the application of the “reasonably practicable” test in the particular horticultural context it was considering meant that the landowner was entitled to assume that a contractor who comes onto its land is competent to operate the contractor’s machinery or equipment, and to avoid visually obvious hazards. It held that only an incompetent or careless contractor will fail to identify steep terrain as a hazard, and take steps to ameliorate the risk arising by driving appropriately or by avoiding the area.

The Court’s finding in respect of Athenberry’s assumption of competency in its discussion on what may constitute reasonably practicable steps is, in our view, disquieting.

Under the HSE, the Court of Appeal in Central Cranes [1997] 3 NZLR 694 held that the principal (now a “PCBU” under the HSWA) did not take all practicable steps (now “reasonably practicable”) to ensure that its contractor’s employees were not harmed by simply employing a “competent contractor”. Central Cranes remains authority for the proposition that, while not impossible, it is generally not sufficient to discharge a duty holder’s obligations by assuming the competency of another entity however, this was accepted (in part) to allow Athenberry’s defence.

Conclusion

Ultimately, Athenberry had no responsibility to persons it was aware would be lawfully present on the orchard from time to time, and despite Athenberry having knowledge that quad bikes would be used on its “generally hilly” orchard.

Admittedly, there were other PCBUs with obligations involved, however this conclusion sits fundamentally at odds with the HSWA’s principle that workers and other persons should be given the highest level of protection as is reasonably practicable against harm to their health, safety, and welfare from hazards and risks arising from work.

A PCBU should not assume another party will discharge a duty – at a minimum, if there is confusion about who will do work, this should be identified and documented.

Equally, a robust health and safety system should protect against the possibility of foolish carelessness or disobedience on the part of a workers.