Consultancy had duty under Health and Safety at Work Act
In a New Zealand first, a health and safety consultancy has been charged under the Health and Safety at Work Act 2015 (HSWA) after a worker suffered a traumatic brain injury.
The worker was hit from behind by a telehandler, leading to the sentencing of a number of organisations (PCBUs) – including last month’s sentencing of a health and safety consultancy with a price-tag of almost $100,000.
The case is an important reminder of the obligations of health and safety consultancies under the HSWA in relation to services provided to clients – and the costly consequences of getting it wrong.
In August 2020, a worker of Westown Agriculture Ltd (Westown) was using his mobile phone to clock off from work when he was hit from behind by moving plant. The worker suffered two brain bleeds, permanent loss of taste and smell, and was diagnosed with post-traumatic stress disorder.
Following a WorkSafe New Zealand investigation, three PCBUs were charged with breaches under the HSWA. Westown, a related entity Westown Haulage Ltd, and consultancy Safe Business Solutions (SBS), were all charged with breaching their primary duties of care and exposing persons at the workplace to the risk of death or serious injury.
Westown and Westown Haulage Limited were jointly sentenced in November 2022 and were ordered to pay a fine of $270,000 and reparations of $50,000. SBS had applied to have the charges dismissed but was found liable for health and safety breaches. It was not until August 2024 that SBS was also sentenced and ordered to pay a fine of $70,000 and reparations of $28,403.
Consultants’ liability
SBS consultants gave paid health and safety advice to Westown and had identified an “urgent need” for it to adopt a workplace traffic management plan. Despite this, no steps were taken to manage the risks of uncontrolled traffic, aside from a small sign about speed at the entrance.
SBS had described its services to clients as “ensuring compliance” and “developing policies and procedure.” However, WorkSafe’s investigation found that: “In this case, the consultants offered active and ongoing management of health and safety risks, but did not deliver work they said they would. “
The District Court found that SBS had a duty under s. 36(2) of the HSWA to provide a traffic management plan, arising from it being a person conducting business for its client, Westown.
The failure of SBS to implement the health and safety plan resulted in it being liable for breach of the duty to ensure so far as reasonably practicable, that the health and safety of other persons, was not put at risk from work carried out as part of the conduct of its business – namely, providing health and safety services.
This failure exposed an individual to a risk of death or serious injury in breach of s. 48 of the HSWA, which carries a fine of up to $1.5 million.
Key points for health and safety
- This prosecution is a cautionary reminder for businesses who provide health and safety consultancy services to clients that they too have responsibilities under the HSWA.
- As demonstrated in this case, those who are contracted to provide consultancy services may be just as much a part of the conduct of the business as a person which provides plant or maintenance.
Andrew Shaw is the managing partner and head of the Employment Law Team at Lane Neave in Christchurch. Fiona McMillan is a partner with the Employment Law Team at Lane Neave in Christchurch. Andy Bell is a partner specialising in employment law and relationship property at Lane Neave in Wellington.
