District Court – Health and Safety at Work Act 2015

District Court – Health and Safety at Work Act 2015

The new Health and Safety at Work Act 2015 (the Act) came into force on 4 April 2016.  One of the major objectives of the Act was to recognise and legislate for an increasing trend in employment relationships and in the workplace environment where multiple entities simultaneously have control of a workplace and those working in it.  WorkSafe v Athenberry Holdings Limited [2018] NZDC 9987 is the first defended hearing to be brought under the Act.  

The District Court gave guidance on the limit of responsibility of potential defendants to claims under the new legislation. The Court held that it was possible for orchard growers to rely on the professional expertise and training of those who were contracted to carry out work on their orchards.  This has wide implications for New Zealand’s agricultural businesses, as the industry relies heavily on contractors.

The accident

Unfortunately an all too familiar story in the New Zealand agricultural industry, the accident in question was a fatal quad bike rollover.  The deceased was a sampler contracted with AgFirst to conduct maturity sampling on kiwifruit. The judge found that on 13 May 2016 the deceased had driven up and down the kiwifruit lines taking samples as usual, but then went off the designated mown access paths, up a slope through long, unmown grass.  Her quad bike was laden with samples, causing a shift in the centre of gravity which exceeded the stability envelope of the quad bike, causing it to roll, trapping the deceased.

The charges

Zespri New Zealand Limited (Zespri) entered a binding undertaking with WorkSafe, and WorkSafe discontinued prosecution.

AgFirst pleaded guilty to a charge under s 36(1)(a) for failing, to ensure, as far as reasonably practicable, the health and safety of its workers while working to collect the maturity samples and that failure exposed the workers to risk of death or serious injury.

Athenberry and Hume were acquitted of the various charges laid against them.  The judge found that the death was the result of the wider contractual context of the industry, and the orchard and packhouse had discharged the limited responsibly placed upon them.

The result/impact

There are a number of parties involved in a complex chain of authority.  Charges were brought against the orchard owner (Athenberry), the packhouse that requested the sampling (Hume),  the deceased’s employer (Agfirst), and the commercial entity that controls the kiwifruit industry generally (Zespri).

Zespri controls 95% of New Zealand’s kiwifruit exports, and requires its orchards to comply with strict industry standards, specifically regarding kiwifruit maturity.  AgFirst is the independent body contracted to be the industry inspection standard for maturity sampling. An Orchard (Athenberry) must request maturity sampling from AgFirst through a packhouse (Hume).  Orchards are required to provide a map indicating the scope of the orchard and potential hazards. AgFirst can query the provided map if inadequate, and the packhouse would contact the orchard for an amended copy

In order to have independent results from sampling, the samplers are trained by AgFirst to be assertively independent and to minimise contact with the orchards.  It is common for AgFirst samplers to use quad bikes to carry out the sampling. AgFirst makes sure all their samplers had quad bike training. It could not have been foreseen that the deceased was not a sufficiently competent quad bike rider to identify the hazards of the terrain or that she would depart from her training and go into areas of long grass that were potentially dangerous.  

“Reasonably practicable”

Reasonably practical is defined in s 22 of the Act. The Court was clear that an analysis should avoid the “perfection of hindsight.”  The Court should only consider what was known or could reasonably have be known at the time of the accident.

The duty cast by s 37 on those who manage or control a workplace is extensive: they must, so far as it is reasonably practicable, ensure the workplace, the means of entering and exiting the workplace, and anything arising from the workplace are without risks to the health and safety of any person.  The section provides a special regime for farms under s 37(3). The workplace in this context was the kiwifruit block and associated access paths. The Court held the exception in s 37(3)(b)(ii) applied, as the accident occurred in the long, unmown grass, out of the workplace. This area should have been recognised by the deceased as an unsafe area according to her AgFirst training, and the unmown grass was deemed a reasonable step in the industry to restrict entry to the accident site.

Concurrent liability  

This raises issues under s 33(1) and (2) of the Act, covering multiple people having the same duty. Section 33 of the Act provides entities retain statutory duties even if another entity has the same duty. Therefore, each entity must discharge their duties independently.  The prosecution case argued that Athenberry could not rely on AgFirst’s training of their employees. Athenberry was held to be entitled to regard AgFirst’s acceptance of the map as an assurance the map met AgFirst’s requirements, specifically sampler safety.

The Court therefore found that both Athenberry and Hume fell under the protective provisions of s 33(3).  Neither had the requisite ‘influence and control’ over the sampler that would have created liability under the section. Their responsibility was held to be limited to industry standard.  As part of the wider industry context, the packhouses and growers have to deal with Zespri on their terms, or be unable to do business.

Reasonably foreseeable

The critical issue for the Court was whether Mr Thompson and the directors of Athenberry orchard should have foreseen the possibility of a kiwifruit sampler going off the mown grass on the kiwifruit blocks.  The prosecution argued that, under ss 36 and 37, backed up by the concurrent responsibility requirements of s 33, Athenberry and Hume were also responsible for sampler safety.

WorkSafe argued that, given the predominance of quad bike accidents in the agricultural industry, Athenberry should have turned its mind to the possibility of a quad bike rider leaving the access paths on the orchard.  The foreseeability of the risk meant Athenberry should have taken steps to identify and control for risks that would arise to a quad biker entering the property. I.e. Hazard maps should have predicted all possible hazards.

It was found that the evidence did not establish that Athenberry ought reasonably to have known the terrain hazards would present rollover risks to kiwifruit samplers.   It was not reasonably foreseeable that an AgFirst sampler on a quad bike would ignore the formed access paths and enter an area of unmown grass.

Comment from senior associate Bradley Alcorn:

This decision provides useful guidance with regards to the concepts of control and influence of a PCBU over “workers” and “employees”.   Athenberry’s lack of control over the victim meant that it was entitled to assume that the victim was sufficiently trained to operate a quad bike and that she would follow that training in the course of her work.

This decision has also highlighted the importance of the context in which PCBUs operate and the extent of their obligations.   The “workplace” of employees and workers may differ within the same site and PCBUs need to recognise this and respond appropriately.   PCBUs also need to be conscious of the additional complexity involved, and the need to consult, co-operate and co-ordinate with each other, when multiple PCBUs are operating on the same site.