The recent health and safety decision, WorkSafe New Zealand v National Emergency Management Agency [2022] NZDC 8020, will be of interest to those who have been following the aftermath of the eruption on Whakaari White Island. It also contains an important clarification of the Health and Safety at Work Act for anyone who is on the periphery of a workplace incident.
Background
The National Emergency Management Agency (NEMA) is the government agency responsible for civil defence and emergency management. It is one of thirteen defendants charged with breaching the Health and Safety at Work Act in relation to the eruption on Whakaari White Island, which resulted in the deaths of 22 people and serious injuries to many more.
WorkSafe charged NEMA with a breach of section 36(2), the duty requiring 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.” WorkSafe claimed that NEMA breached this by failing to properly consult, co-operate, and co-ordinate with GNS Science and Whakaari management about the implications of volcanic activity, and by failing to communicate the risk of volcanic activity to the public.
NEMA applied for the charge against it to be dismissed, under section 147 of the Criminal Procedure Act. NEMA’s position was that it was not a PCBU in relation to activities on Whakaari and did not put any persons at risk on Whakaari, as it did not carry out any work physically on Whakaari, nor did it send any workers or place any people on Whakaari. WorkSafe argued that “work means work, without differentiating between the process of carrying out that work (work activity) and the result of that work (work product).”
The District Court’s decision
Judge Thomas decided that he needed to consider Parliament’s intention when determining how to interpret section 36(2). He noted that the purpose of the Act was focused on workers and workplaces, and said that:
“protecting “other persons” is part of the overall aim of securing “the health and safety of workers and workplaces”. The Act’s purpose would have been drafted much differently if workers and workplaces had not been the main aim.”
Judge Thomas dismissed the charges against NEMA. In doing so, he decided that the Act was focused on health and safety in relation to work activity, not work product:
“it is much more likely that if Parliament intended WorkSafe’s interpretation to be preferred there would have been clear signs of that. Expanding the duty beyond what used to be called occupational safety and health would be significant and controversial. The Act creates a strict liability offence. It imposes a higher standard of care. Insurance is unlawful. WorkSafe’s own obligations to monitor and improve safety conditions would be potentially vast. Had Parliament intended this, any of this, it would have been referred to somewhere, anywhere.”
Judge Thomas also made the interesting observation that, given fines under the Act are incapable of indemnification, the expansion of the Act’s applicability in the way WorkSafe contended for would have far reaching consequences. His Honour said that Parliament would have been clear had it intended to create such an expansive regime of uninsurable penalties.
Comment
Recently, WorkSafe has become more likely to charge multiple parties in respect of one incident, and it has also sought to expand the activities it regulates through a broad interpretation of the s 36(2) duty to “other persons”. This decision may rein in that tendency by requiring the focus to be on those parties involved in work activity.
Duncan Cotterill Partner Duncan McGill and Senior Associate Edwin Boshier both acted for the insurer of NEMA, advising it on policy response and strategy in relation to the prosecution and the application to discharge.
Disclaimer: The content of this article is general in nature and not intended as a substitute for specific professional advice on any matter and should not be relied upon for that purpose.
