Highlighting steps taken key to defending against health and safety prosecutions
In a recent District Court decision, WorkSafe New Zealand v. Glenbrook Farming & Equipment Hire Limited [2024] NZDC 19871, the defendant successfully defended a charge filed by WorkSafe under the Health and Safety at Work Act 2015 (HASWA).
This case is significant for four reasons:
- The decision continues the recent trend in which defendants have successfully defended charges brought against them by regulators under HASWA.
- It highlights how the courts approach the question of what amounts to reasonably practicable steps to discharge a health and safety duty.
- It is a good reminder of the importance of maintaining detailed records of health and safety training and equipment maintenance to support a PCBUs’ response to an investigation.
- It contains a helpful discussion in relation to causation in circumstances where the regulator alleges a causative link between a breach of duty and incident.
Glenbrook, the defendant PCBU, hired out equipment including trailers.
In February 2021, a customer contacted Glenbrook to hire a vehicle trailer to collect a vehicle from Minginui. The (sole) employee of Glenbrook assisted the customer to attach the trailer to his vehicle. He gave evidence, which the court accepted, that he had followed his usual practice of explaining how to safely use the trailer as well as carrying out a basic check of the trailer prior to its hire (e.g. checking tyre pressure and brake lights).
Accident causing death
After loading a vehicle onto the trailer, the driver of the vehicle towing the trailer lost control resulting in an accident. While some occupants of the vehicle sustained moderate to no injuries, a young passenger who had been seated in the rear died at the scene.
As this was a road accident, the police carried out an investigation to determine its cause. WorkSafe also carried out an investigation. Following the conclusion of those investigations, WorkSafe prosecuted Glenbrook under ss. 36(2), 48(1) and 48(2)(c) of HASWA. To be convicted, WorkSafe had to prove beyond reasonable doubt that Glenbrook, as a PCBU:
- Had a duty to ensure, so far as reasonably practicable, that the health and safety of others, including the passengers of the vehicle, was not put at risk from work carried out as part of the business or undertaking.
- Failed to comply with that duty by failing to take the reasonably practicable steps identified by WorkSafe.
- Those failures exposed other persons to a risk of death or serious injury.
While a charge under s. 48 does not require the prosecution to prove that a failure to comply with a duty under HASWA caused an eventuated harm, the prosecution and court accepted that, where WorkSafe frames its charges and pursues its case on the basis that there is a causal connection between the alleged failure and eventuated harm, it must also prove that causative link beyond reasonable doubt (not just in the context of sentencing but also for the court to reach a conclusion as to guilt).
The reasonably practicable steps that Glenbrook allegedly failed to take were:
- Failing to effectively implement and monitor a safe system of work for the regular maintenance of trailers it hired.
- Failing to develop and implement effective training of, and provision of information to, its workers to carry out the hiring of trailers.
While Glenbrook was found to have maintained “somewhat meagre” records of the maintenance carried out on the trailers it hired, the court found that it had a system of maintenance and had adequately maintained the trailer involved in the accident. Glenbrook had engaged an appropriately qualified and experienced mechanic to repair and service the equipment which was hired and it kept records (albeit limited in nature) of the maintenance and repairs in a diary.
Health and safety training
Similarly, while Glenbrook kept relatively “informal” records of the health and safety training given to its workers, there was evidence that the sole employee had been given a health and safety induction, received health and safety training (both at a general level and specifically in relation to the safe use and hiring of trailers), and that they were provided personal protective equipment to carry out their work. The court also acknowledged the evidence it had received regarding the fact Glenbrook held health and safety meetings.
Having found those reasonably practicable steps had been taken, it was not necessary for the court to consider whether the alleged breach of duty by the defendant caused the accident to occur. Helpfully, however, the court reiterated that the test for causation in a health and safety context required the prosecution to show that the failure of the PCBU “was a substantial and operative cause of the accident” – that is, one that is contributed significantly and continued to have effect up until the time of the accident – where the prosecution frames its charges and pursues its case on the basis that there is such a connection.
There was competing expert evidence on causation. The post-crash investigation showed that (among other things) all four trailer tyres were well below recommended pressure levels and that the wheel nuts were under-torqued. WorkSafe’s expert considered these were material factors in the accident, such that poor maintenance was a substantial and operative cause of it. The defence expert disagreed, noting the tyres had been damaged in the accident and this could explain the low-pressure readings.
He also considered the method of obtaining the wheel torque was unreliable such that there was doubt about whether the wheel nuts were in fact under-torqued when the trailer was hired out.
The court was not able to exclude the reasonable possibility that the defence expert was right (meaning that causation was not proven beyond reasonable doubt).
The outcome in this case continues a recent trend in which defendants have successfully defended prosecutions under the HASWA - other recent cases include WorkSafe v. Whakaari Management Limited [2023] NZDC 23224, WorkSafe New Zealand v. RDAgritech [2024] NZDC 12446, and Maritime New Zealand v. Goodhew [2024] NZDC 12301. This trend should encourage defendants to carefully consider the case against them and, where appropriate, to defend those charges. Significant incentives remain for defendants to plead guilty early in the prosecution process (through sentencing discounts) and those incentives will need to be weighed against the relative strengths of the parties’ cases.
Good records of training, maintenance
This case also highlights the importance of PCBUs maintaining good records of training and maintenance so they can readily show the regulator (and the court) they have taken reasonably practicable steps to discharge their duties under HASWA. As discussed above, the court appeared to take a relatively lenient approach regarding the lack of records maintained by the PCBU in Glenbrook. A court may be less inclined to take such an approach in the context of a larger PCBU.
As such, this case is a good reminder for PCBUs to ensure their records (and record-keeping processes) are up-to-date and capture all information the PCBU may need to rely upon to show they have discharged their duties under HASWA.
Finally, the way WorkSafe framed its charges (by including a causation element) added further complexity to its prosecution. The criminal standard of proof – beyond reasonable doubt – is a high hurdle that will not be met where an alternative conclusion is a reasonable possibility.
This means it may often be difficult in practice to prove that a breach of duty is a substantial and operative cause of an accident (as reflected in this decision, with the judge unable to exclude the reasonable possibility that the factors relied on by WorkSafe were caused by something other than poor maintenance).
Matthew Ferrier is a partner specialising in regulatory investigations and prosecutions at Minter EllisonRuddWatts in Auckland, Mark Calderwood is a senior associate specialising in public and regulatory law in Wellington, and Lauren Furley is a law clerk at MinterEllisonRuddWatts in Wellington.
