Guidance on the First Defended Hearing for New Zealand's H&S at Work Act 2015

Posted by Craig Thornton

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Video Background

In this video, Susan Rowe, Partner at Buddle Findlay Lawyers talks about the first defended hearing since New Zealand's Health and Safety at Work Act 2015 was introduced. 

This case was Athenbury Orchard vs WorkSafe NZ. In this specific case a kiwifruit tester went off course and was unfortunately killed when their quad-bike rolled. In this video Susan explains how Athenbury managed to successfully defended the prosecution. 

Watch this 12 minute video to find out everything you need to know. 


Video Transcription

So today we're going to talk about the first defended hearing under the Health & Safety at Work Act.

It might surprise you to learn that it's been two years since we've had the Act introduced.

But most people have either entered in to enforceable undertakings or pled guilty.

Recently there was a decision in relation to a successful defended hearing. 

Athenbury vs Worksafe NZ

Now the case is called Athenberry and Worksafe and the case involved the kiwifruit industry. It involved a large number of parties in that industry.

I guess it’s a little bit fact specific, only in the sense that the kiwifruit industry have got a very specific way in which they've managed their contracts.

So Zespri sits over the top of the industry and it sets up the way that the contracts are operated. It controls the testing process of kiwifruit. So, in order to sell your product to Zespri, you have to be able to demonstrate that you meet a number of standards and criteria. And you have to use specific testing organisations that are contracted with Zespri.

So the way that it worked in this particular incident was that Athenberry was the orchard owner and they needed to have testing done of their product.

So when they test, they then engage a packhouse. In this instance it was called Hume.

They send in their requests for the testing process. Hume then engage with the testing operation which in this instance was called AgFirst Bay of Plenty. They have a contract with Zespri.

You can see there's quite a few PCBUs in this chain.  There's the orchard owner, there's the packhouse, there's the employer of the person who is doing the actual testing on quad bikes and then there's Zespri. So there's quite a lot of different PCBUs that were involved in this incident.

What happened, unfortunately, was the tester, who was engaged to do the testing by using quad bikes driving through the orchard, had been given, in the usual way, maps of the orchard.

What happens is the orchard owners submit some maps in, they submit them in via the packhouse.

They're actually maps that are kept on a sort of normal permanent basis. If there's any issues with the mapping, comment comes back to the orchard owner. There are hazards that are identified in the place that you would expect a tester of kiwifruit to go.

So the kiwifruit testing which is done by driving the four wheel bikes through the orchard. They have mown paths through the orchard.

In this instance the orchard owner had made sure that the hazards and risks were identified where the testing people would normally go. They made sure that the paths were mown, that the tracks were apparent, they were marked.

What they hadn't done was look wider, outside where the testing process would take place. It's a very big orchard, they hadn't marked out hazards and risks that were outside these marked paths and this area that the kiwifruit was in.

How did the accident occur?

What happened on that particular day was that the employee of the company that had been sent to do the testing, had taken the quad bike and at some point and, for reasons that no one understands, had driven the bike, outside of those mown tracks.

Unfortunately, the quad bike had gone up a slight hill and had rolled and had killed the driver.

The Investigation 

What had taken place by the way of investigation from Worksafe was actually, when they looked at it in the court, was quite a short investigation. It didn't really delve into, it didn't take too many measurements.

So I suppose the first problem for Worksafe when prosecuting some of the entities was that the investigation itself was pretty substandard.

What the orchard owner and also the packhouse took umbrage at was the suggestion that they hadn't taken all reasonably practicable steps.

The issue was, "was it reasonably practicable for Athenberry, the orchard owner, to identify hazards and risks outside where a well-trained reasonable operator of a four wheel bike would go?"

Worksafe had said yes they should of taken these steps.

Athenberry's argument was that this was simply not reasonably practicable.

The court agreed with Athenberry.

When you get a contractor that's experienced and you've got the evidence that, they've got trained riders, that it's not reasonably foreseeable that such a rider would go outside of their training, and go outside of the clearly marked paths that are used for quad bikes, and go up a hill.

They said that it wasn't reasonable to expect Athenbury to identify risks and hazards in this way, and that it was able to rely on the fact that it got an experienced contractor in to do that work.

I think that's an important part of the case. It really shows what is reasonably practicable. You'll remember that in the Health & Safety at Work Act, the company is responsible, for the health and safety of other workers or employees of other PCBUs, if it has influence and control over those workers.

What is Influence and Control?

In this case, the court gave really helpful guidance to what influence in control actually means.

They looked at that test and they've set out a test that can now be used.

They've said, and I’ll just quote from the case: "The PCBUs must be entitled to assume that contractors that come onto their properties, are competent to operate the machinery that they bring with them and to operate their vehicles with sufficient care and skill to avoid visually obvious hazards."

That's a really helpful quote that the court has given us.

They also said that one of the following factors has to be present, for a PCBU to have influence in control over another PCBUs workers:

  • So it has to have control over the practical carrying out of the work
  • It has to give provision of advice to those workers
  • Has to specify matters affecting the conduct or methods of work of those employees
  • There have to be reporting requirements in to the PBCU
  • Or it has to have oversight or supervision.

So it requires at least, one of those things to be present before it says that, you will influence or control another PCBUs workers.

Now if you think about that in relation to this Athenbury case where the orchard owner didn’t have that much control, you need to probably understand that in this particular industry with Zespri,

Zespri wanted the product testers to remain completely independent. When they had set up the industry with this quite convoluted contractual process, they'd made it really clear that the testers were completely independent. That's why the orchard doesn't contract directly with those testers. It also had quite strict rules for testers. So they weren't able to approach the orchard in any way, and the orchard was instructed not to approach the testers. They had to maintain independence, in fact the testers had received training on how to deal with situations. Where an orchardist had approached them while their doing the testing and they were trained not to interact with them. And to keep their distance.

So you can understand how the orchard might say:

"Well we don't have any influence in control."

"We couldn’t control how that carried out the work."

"We couldn't provide them with advice."

"We didn’t have any reporting requirements."

"We didn’t have any oversight or supervision."

So you can see that in that particular industry it was very easy for Athenberry to identify, that they didn't have those factors. But that's not to say that it couldn't be applied to a more broad scenario, any number of situations.

If you can establish that you don't have any of those factors, or many of those factors that are at play, then you might be able to show you don't have influence and control workers.

What Does this Case Highlight?

So I think that what that case shows is a number of things.

The important thing is that you are able to successfully defend a claim.

Just because Worksafe have taken an approach and lodged the charges and are taken the action against you, it doesn't mean that you won't be successful in defence.

I think that it also will mean that Worksafe will be quite careful about how they approach and who they prosecute.

It shows that a number of PCBUs can be prosecuted.

It's interesting to note that in that case though that Zespri, for example, entered into an enforceable undertaking quite early and they were not prosecuted.

The court was quite critical of Zespri in this case. It seemed because it had the most control over the industry and the contractual and health and safety arrangements.

I don't think that Worksafe would perhaps enter into an undertaking at that early stage in the investigation again.

You might find that Worksafe are a little bit more hesitant now at the stage they'll enter into in enforceable undertakings. They might give that some more thought.

But it certainly gives us some clear guidance on how to successfully defend a charge under the Health and Safety at Work Act

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