Health and safety consultants and advisors who fail to implement health and safety measures for other organisations can be prosecuted

Health and safety consultants and advisors who fail to implement health and safety measures for other organisations can be prosecuted

The High Court has confirmed that health and safety consultants and advisors are liable under NZ’s health and safety legislation in the recent case of Safe Business Solutions Ltd v WorkSafe.[1]

Case Background

SBS was engaged as an external health and safety consultant by Westown Haulage Ltd and Westown Agriculture Ltd (Westown), two related companies with shared premises.  Services provided by SBS included four site visits per year, weekly support, annual policy reviews, on-demand telephone assistance, and a designated consultant – a director of SBS.

Westown had recently moved to new premises, and a new office was being built at the new location. 

After a WorkSafe inspection in July 2019 highlighting the need for an improved traffic management plan (TMP), the consultant decided to delay implementation until the new office building was completed. Despite the consultant acknowledging the urgency of the issue, including that there was a “desperate need for a traffic management plan” in subsequent site reports, no interim TMP was introduced during construction.  Importantly, neither the consultant nor SBS had in-house expertise to develop a TMP.

By August 2020, the office building was finished, but the traffic management plan was still in draft form.  The only safety measure in place was a hazard board with a 20 km/h speed limit sign. Less than a month later, a worker operating a telehandler struck another worker, causing serious injuries.

Charge

SBS was charged for breaching the primary duty under s 36(2) of the Health and Safety at Work Act 2015 (the HSWA) for putting the health and safety of “other persons” (i.e. Westown’s workers) at risk.  In the District Court it sought to argue that because of its role as a consultant, it did not owe the primary duty to Westown’s workers.  SBS’s argument was rejected and it subsequently pleaded guilty and was convicted and fined $70,000.

High Court Decision

SBS appealed its conviction arguing the District Court was wrong to find it owed the primary duty and that even on the facts of the case it could not have been convicted. The High Court’s decision has confirmed that SBS’s conviction remains in place and that health and safety advisors and consultants may be liable under the HSWA for risks arising in their clients’ workplaces.

The scope of the duty applies to health and safety providers

SBS argued that health and safety advisors should not fall under section 36(2), but the High Court dismissed this argument, citing the Australian Model Act’s[2] refusal of a separate legal duty for such providers and New Zealand’s reinforcement of this principle in the HSWA. The court emphasised the Act’s broad scope, noting that exempting health and safety consultancies/advisors would be illogical since their advice directly impacts workplace safety.

Actions and inactions are captured

SBS also argued that the duty under s 36(2) to ensure the health and safety of “other persons” is not put at risk only applies to active steps taken by a defendant, rather than a failure or omission to do something. The High Court disagreed, stating that work includes both action and inaction, and that failing to complete agreed-upon work does not eliminate liability, as doing so would undermine the HSWA’s goal of protecting workers and others.

SBS liable under the HSWA

The High Court agreed with the District Court finding that SBS was subject to a duty under section 36(2) of the HSWA but based its decision on different reasoning.

In response to the District Court’s comment that SBS “inherited” the duty, the High Court considered that concept “puts a gloss on the Act and may lead to confusion”. Rather, SBS had its own separate duty arising from its work to provide a TMP to Westown, concurrent with Westown’s own duty to ensure safety of its workers – rather than “inheriting” Westown’s duty. That is, they had distinct but overlapping duties.

The High Court examined whether the duty imposed on SBS was excessively broad and concluded that it was not. Section 30 of the HSWA requires that a duty must be complied with only to the extent to which the person has, or would reasonably be expected to have, the ability to influence and control the matter associated with the risks.

SBS’s responsibility was to eliminate or minimise health and safety risks so far as was reasonably practicable. In this case, it would likely have met that standard by simply following through on its commitment to implement temporary safety measures, like an interim traffic plan and/or proper warning signage, until the final TMP was in place. If SBS had provided a TMP but Westown had disregarded it, then SBS would probably not have breached its duty.

Key messages for health and safety consultants and advisors

This case highlights the need for organisations to be proactive in managing health and safety and uncovers a range of practical considerations, including:

• Health and safety consultants and advisors, and others who are engaged by an organisation to implement health and safety controls have duties under HSWA and could be found in breach if agreed safety measures are not in put in place as required and expected.
• Health and safety consultancies cannot absolve themselves of responsibility merely by delegating duties to an in-house consultant/advisor without adequate oversight. Regular oversight and verification of work as done is crucial to ensure responsibilities are met.
• SBS did not have the required expertise to develop a TMP. Health and safety consultants and advisors must ensure they are suitability qualified and competent to carry out the work they are engaged to do. Organisations should also check the consultants and advisors they engage are suitability qualified and competent to carry out the work requested otherwise they will be found in breach of their own health and safety duties.
• Future work and initiatives can be a distraction and create gaps. Critical risks must be addressed in a timely manner while working on longer-term safety solutions.