High Court Decision: Safe Business Solutions Limited V WorkSafe New Zealand
In a recent High Court decision, Safe Business Solutions Limited v WorkSafe New Zealand [1], an appeal against a conviction relating to a breach of the primary duty of care was dismissed.
The case is significant as the Court:
essentially rejected the 'work product' / 'work activity' distinction that was referenced in the District Court's decision in NEMA v WorkSafe New Zealand (one of the prosecutions associated with the Whakaari | White Island tragedy) in terms of the circumstances in which the primary duty of care applied [2]; and
emphasised the potentially broad application of the primary duty of care and the importance of the influence or control of the PCBU over the matters to which the risks to health and safety related as a mechanism for ensuring the application of that duty was not 'unduly wide'.
Background
Safe Business Solutions Limited (SBS) was engaged as an external health and safety consultant by two companies involved in agricultural and horticultural haulage to assist them with health and safety matters related to the shared premises they were moving into.
In providing those services, SBS identified the need for the haulage companies to have in place a traffic flow plan for the new site. SBS agreed it would prepare the plan as an additional service. Before a traffic flow plan was put in place, and accident occurred at the site when a telescopic handler (a forklift/crane with a long boom) was driven into a worker causing significant injuries.
WorkSafe charged one of the haulage companies and SBS with breaching the primary duty of care under the Health and Safety at Work Act 2015 (HSW Act). The haulage company plead guilty. On the other hand, SBS applied to have the charge against it dismissed under the Criminal Procedure Act 2011, s 147 on the basis that the HSW Act did not impose a duty on it to ensure the health and safety of the haulage company's workers was not put at risk. The Court declined to dismiss the charge. SBS subsequently plead guilty and was convicted.
SBS appealed its conviction arguing that its guilty plea was induced by an error of law (in terms of the ruling to not dismiss the charges) and that on the admitted facts, it could not have been convicted of the offence with which it was charged.
The decision
The first question Grau J had to consider was whether the HSW Act applied to health and safety consultants like SBS. SBS argued that because the HSW Act contains 'upstream' duties (eg the duty of a PCBU who supplies plant, substance, or structures), had Parliament intended that a health and safety consultancy would be subject to a duty under the Act, it would have created a specific duty for them. Her Honour found that the position of upstream PCBUs under the HSW Act was distinct from the position of a PCBU in SBS' position as SBS had a direct connection with the work of the PCBU that had engaged them.
Grau J concluded that the scheme of the HSW Act indicated that the duties contained in the Act were intended to apply to a wide variety of relationships and actors in a workplace and that it would be contrary to those matters if the Act was to be interpreted in such a way that meant a health and safety consultancy was exempted from owing a duty under that legislation for work they did for another business. On that basis, Grau J concluded the HSW Act applied to SBS.
Having established the HSW Act applied to SBS, Grau J then had to consider whether the Judge at first instance had erred in his interpretation of the duty in s 36(2) when declining to dismiss the charge against SBS. Her Honour found that in light of the purpose and scheme of the HSW Act, s 36 had a broad application and applied to SBS because:
While s 36(2) was framed in relatively more negative terms than s 36(1), all of the duties under the HSW Act required PCBUs to take positive actions (eg take actions to eliminate or minimise the risks to health and safety). Accordingly, s 36(2) applied to SBS in relation to its failure to produce the traffic flow plan for the haulage companies. The Court noted that to find otherwise would enable a PCBU to escape liability from failing to do work it had agreed to do.
Section 36(2) should not be interpreted in a way that merely extended the duty owed by a PCBU under s 36(1) to other people. The Court explained this would be an interpretation that meant SBS simply owed a duty to ensure its own workplace was safe for its workers/workers under its influence or direction which would be an interpretation that would lessen the protection of the HSW Act for other people might be affected by the work of a business. Here, the 'other people' were the workers at the haulage companies that would have benefitted from the implementation of a traffic flow plan.
SBS also argued that the Judge at first instance made an error of law by conflating ss 30 and 36 to find that whether or not SBS owed a duty depended upon its 'influence and control'. Section 30 of the HSW Act requires a person who owes a duty under the Act to comply with that duty to the extent they have an ability to influence and control the matter to which the risks relate. The Court concluded that no error of law occured because the Judge applied the test in s 30 to the question of whether SBS breached the duty it owed rather than whether it owed the duty at all.
The Court explained that while the HSW Act imposes 'very broad' duties, s 30 plays an important role to ensure their application 'is not unduly wide' by limiting the application of the duty to what is within the PCBU's influence and control. In this case, it meant that SBS was not required to physically stop traffic at the haulage companies' workplace as it had no ability to influence or control that matter. However, SBS did have an ability to influence or control the production of a traffic flow plan and could have taken steps to produce one.
Our view
The outcome in this case continues a recent trend of decisions in which the Courts have not applied the 'work product' / 'work activity' distinction from NEMA when interpreting the primary duty of care [3]. Had such a distinction been applied here, SBS would not have faced liability as the breach of the primary duty of care in this case related to SBS' 'work product' (eg the production of a traffic flow plan) rather than its 'work activity' (eg how it ensured the health and safety of its workers when they visited the site). We consider this outcome would be at odds with the broad purpose of the HSW Act and could lead to unfairness in terms of the application of the Act. For example, in this case, while SBS would not be liable in connection with its 'work product', the haulage company would be liable as the accident arose in connection with its 'work activity'.
The Courts' rejection of the 'work product' / 'work activity' distinction means that the primary duty of care potentially has a very broad application. This highlights the important role that s 30 plays in avoiding overreach in the application of duties under the HSW Act (as highlighted by Grau J) and serves as a good reminder to PCBUs to understand their influence or control over a matter to understand the extent to which they are required to discharge the duties they owe.
Footnotes:
[1] Safe Business Solutions Limited v WorkSafe New Zealand [2025] NZHC 979.
[2] WorkSafe New Zealand v National Emergency Management Agency [2022] NZDC 8020.
[3] WorkSafe New Zealand v RDAgritech Limited [2024] NZDC 12446, WorkSafe New Zealand v S [2023] NZDC 13435, WorkSafe New Zealand v The National Science Technology Roadshow Trust Board [2024] NZDC 3258 and WorkSafe New Zealand v Te Roopu Taurima O Manukau Trust [2023] NZDC 4212.
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