Health & Safety
Newsletter
Updates from our
national team
ISSUE ONE
NOVEMBER 2023
Introduction
Following on from our first
Employment Newsletter, we
are pleased to bring you our
latest publication focused on
workplace Health and Safety.
It has been over seven years since
the Health and Safety at Work
Act 2015 (HSWA) was passed,
introducing a risk management
framework to health and safety.
Many strategic plans have been put
in place by the regulator, WorkSafe,
together with ambitious targets
for reducing workplace injuries
and ill health across New Zealand.
The targets have come and gone,
mostly unmet, and we continue
to have higher rates of workers
being harmed at work than other
OECD countries such as the United
Kingdom, Australia, and Singapore.
The right to a safe and healthy
working environment is a
fundamental principle and
workplace right, endorsed by the
International Labour Organisation
in 2022. Despite this, our statistics
on workplace death and illness are
three times as high as the United
Kingdom, with the latest estimates
of 750 to 900 deaths each year
caused by health risks associated
with work.
Olivia Lund
Partner
LLB
PGDipHlth (Workplace Health and Safety)
It is worth noting that this figure
has not changed significantly since
1999, prior to the introduction
of HSWA. Recent reports claim
workplace death and injuries are
significantly impacting productivity
and costing the New Zealand
economy an estimated $4.4 billion
a year.
WorkSafe has faced the brunt
of the criticism for our poor
performance, with many thinking
the regulator has failed to meet the
mark following several high-profile
unsuccessful prosecutions. While
many are calling for change and
placing the blame on the regulator;
there is an equal debate that
embedding change from reactive to
proactive risk management takes
time. We urge all organisations
to continue giving their focus and
attention to the proactive actions
they can take to minimise risk and
harm in their workplaces.
In this issue, our national health
and safety team highlight
important trends, relevant cases
and upcoming health and safety
changes. We cover the recent
decisions regarding the Whakaari/
White Island prosecutions, along
with some recent coronial decisions
looking at the effects of fatigue.
We also look at the changes to
health and safety in our ports
and the implications for those
doing business through the ports,
and share an article co-written
with John Fitzgerald, Manager
at WorkSafe which explores
bullying in the workplace and when
WorkSafe will intervene. This article
provides some valuable discussion
on how organisations can reduce
the risk of psychosocial harm in the
workplace.
I hope that you will find these
articles informative and invite you
to contact us with any enquiries
you may have for further advice and
guidance.
Contents
Snapshot of New Zealand’s health and safety performance
Learnings from the Whakaari / White Island prosecutions
Falling short of safety: the underlying issues in health and
safety prosecutions
Case update: Managing Director and Health & Safety Officer
sentenced over workplace accident cover-up
12
Can a trust be prosecuted under the HSWA?
14
Changes in our ports: Maritime New Zealand’s expanding jurisdiction
16
Bullying: when does WorkSafe New Zealand intervene and how
does that intersect with employment law obligations?
20
Falling asleep at the wheel or driving towards health and safety?
26
Our specialist team
28
Disclaimer: The content of this publication is general in nature and not
intended as a substitute for specific professional advice on any matter
and should not be relied upon for that purpose.
Snapshot
of New
Zealand’s
health
and safety
performance
TOTAL
ACCIDENT TYPE
30
12
Vehicle incident
Fall from height
Being Hit by Falling Objects
Drowning
Being Trapped in Moving Machinery
FATALITIES
62 fatalities
From Jul 2022 to Jun 2023
INJURIES RESULTING IN
MORE THAN A WEEK AWAY
FROM WORK
34,887 injuries
From Jun 2022 to May 2023
MOST COMMON FACTOR
INVOLVED IN INJURIES
RESULTING IN MORE THAN
A WEEK AWAY FROM WORK
Muscular Stress While
Lifting, Carrying or Putting
Down Objects.
From Jun 2022 to May 2023
WORK-RELATED HEALTH
DEATHS ARE ESTIMATED AT
750-900 a year
WorkSafe has revised its work-related
health estimates, and has also worked
on a measure of the quality and length
of life lost to injuries and illness
Source: data.worksafe.govt.nz
Most common accident type in fatalities
From Jul 2022 to Jun 2023
Source: data.worksafe.govt.nz. Work-related fatalities are deaths that occur as a result of injury
from work. This data includes workers who die from injuries while working and members of
the public who die as a result of someone else’s work activity. It excludes deaths from natural
causes and self-harm. The data is unable to include deaths from occupational disease.
25.06
TOTAL
RATE*
INDUSTRY
22.83
13.67
24.24
10.24
6249
5898
3348
2658
2496
Construction
Manufacturing
Health Care and Social Assistance
Transport, Postal and Warehousing
Retail Trade
Industries with highest numbers of injuries resulting in more than
a week away from work
From Jun 2022 to May 2023
* Total per 1,000 people in employment. Rates are 12 month annual rates.
Source: data.worksafe.govt.nz
Work-related health data
The revised estimate for work-
related health deaths is: 750-900
Of all
estimated
750 deaths
APPROXIMATELY
50%
APPROXIMATELY
DEATHS (approximately
35%of all deaths)
Lung cancer
Asbestos related lung cancer
accounts for about half of
these deaths. Other important
causes are silica dust and
diesel engine exhaust.
WorkSafe’s enforcement focus
Given the statistics, it’s perhaps
unsurprising that WorkSafe’s recent
focus has clearly been on those
two industries. In the 12 months
to July 2023, 4,843 enforcement
activities (enforcement excluding
prosecution) were conducted
in Construction and 2,574 in
Manufacturing. Between them,
this represents more than 3 times
the enforcement activity than all
other industries in New Zealand
combined.
Mesothelioma
Asbestos related cancer of the
lining of the lungs and other
organs.
Breast cancer
(from exposure to shift work)
250
APPROXIMATELY
DEATHS (approximately
10%of all deaths)
90
APPROXIMATELY
DEATHS (approximately
3%of all deaths)
25
Are caused
by cancers
Source: data.worksafe.govt.nz
Learnings
from the
Whakaari /
White Island
prosecutions
The Whakaari/White Island
volcanic eruption killed 22
tourists and tour guides and
left 25 injured, with many still
suffering from their injuries.
WorkSafe originally charged
13 individuals and companies
in 2020 for health and safety
failings in relation to the volcanic
eruption in the Bay of Plenty on 9
December 2019.
Below we examine the outcomes
from the trial and learnings
regarding the Health and Safety at
Work Act (HSWA)
Trial outcomes
With the trial now finished, all guilty
parties are due to be sentenced on
26 February 2024.
A number of parties pleaded guilty
or had charges dismissed, prior to
the judge-alone trial, which began
on 11 July 2023:
• InFlite Charters pleaded guilty to
one charge and were sentenced
on 31 March 2022.
• The National Emergency
Management Agency had one
charge dismissed on 29 April
2022.
• The Institute of Geological
Nuclear Sciences Limited had
one charge dismissed on 6
October 2022 and pleaded
guilty to an amended charge on
30 May 2023.
• White Island Tours pleaded
guilty to two amended charges
on 15 June 2023.
• Volcanic Air Safaris Ltd, Aerius
Ltd and Kahu New Zealand
Ltd each pleaded guilty to two
amended charges on 7 July
2023.
During the trial, defendants Peter
Buttle, Andrew Buttle and James
Buttle each had one charge
dismissed on 5 September 2023.
ID Tours and Tauranga Tourism Ltd
each had one charge dismissed on
12 September 2023.
At the end of the trial on 21
September 2023, one defendant
remained – Whakaari Management
Limited.
On 31 October 2023 Judge Thomas
found Whakaari Management
Limited guilty of the charge under
Section 37 of the Health and Safety
at Work Act 2015 and the company
was convicted. The charge under
Section 36 of the Health and Safety
at Work Act 2015 was dismissed1.
What have we learnt?
The primary duty of care is
limited to risks arising from work
activities, not work product – s 36
HSWA
WorkSafe charged National
Emergency Management Agency
(NEMA) with a breach of section
36(2), the duty requiring a PCBU
to “ensure, so far as is reasonably
practicable, that the health and
safety of other persons is not put at
risk from work carried out as part
of the conduct of the business or
undertaking.” WorkSafe claimed
that NEMA breached this duty
by failing to properly consult,
co-operate, and co-ordinate
with GNS Science and Whakaari
Management about the implications
of volcanic activity, and by failing
to communicate the risk of volcanic
activity to the public.
NEMA applied for the charge
against it to be dismissed, on the
basis it was not a PCBU in relation
to activities on Whakaari and did
not put any persons at risk on
Whakaari, as it did not carry out
any work physically on Whakaari,
nor did it send any workers or place
any people on Whakaari. WorkSafe
argued that “work means work,
without differentiating between the
process of carrying out that work
(work activity) and the result of that
work (work product).”
Judge Thomas decided that he
needed to consider Parliament’s
intention when determining how
to interpret section 36(2). He
noted that the purpose of the
Act was focused on workers and
workplaces, and said that:
“protecting ‘other persons’ is
part of the overall aim of securing
‘the health and safety of workers
and workplaces.’ The Act’s
purpose would have been drafted
much differently if workers and
workplaces had not been the main
aim.”
Judge Thomas dismissed the
charges against NEMA. In doing
so, he decided that the Act was
focused on health and safety in
relation to work activity, not work
product:
“it is much more likely that if
Parliament intended WorkSafe’s
interpretation to be preferred
there would have been clear
signs of that. Expanding the
duty beyond what used to be
called occupational safety and
health would be significant and
controversial. The Act creates a
strict liability offence. It imposes
a higher standard of care.
Insurance is unlawful. WorkSafe’s
own obligations to monitor and
improve safety conditions would
be potentially vast. Had Parliament
intended this, any of this, it would
have been referred to somewhere,
anywhere.”
WorkSafe NZ did not appeal the
NEMA decision, and it was applied
by Judge Thomas in his dismissal
decisions regarding Tauranga
Tourism Services Limited, ID Tours
New Zealand Limited and Whakaari
Management Limited discussed
further below.
Protecting
‘other persons’
is part of the
overall aim
of securing
‘the health
and safety of
workers and
workplaces’.
The Act’s
purpose would
have been
drafted much
differently if
workers and
workplaces had
not been the
main aim.
“
Tauranga Tourism and ID Tours
were essentially booking agents
for tours to Whakaari/White Island;
they coordinated logistics and
passed on booking information
within the supply chain. They were
charged under s 36(2) of the HSWA
with failing to properly consult,
co-ordinate and co-operate with
others to ensure that necessary
safety information reached Royal
Caribbean passengers.
Judge Thomas dismissed the
charges on the basis Tauranga
Tourism and ID Tours owed no
duties in connection with the
Whakaari/White Island eruption
because they did not have workers
on the island, conduct work on the
island, or influence or direct work
that was conducted on the island.
The lesson being that the primary
duty to other persons only applies
to risks and hazards arising directly
from work activity carried out at a
PCBU’s workplace (which includes
where a worker goes), whether the
work is carried out by the PCBU’s
workers or by other workers whose
activities the PCBU influences or
directs.
The officer due diligence
obligation is personal to each
individual officer – s 44 HSWA
Whakaari Management Limited’s
(WML) three directors, ‘the Buttles’,
were each charged under s 44 of
the HSWA with failing to exercise
the necessary due diligence as a
director of WML to ensure WML
complied with its duties under
the HSWA, particularly relating to
seeking expert advice about risk.
Judge Thomas dismissed the
charges against the Buttles on the
basis WorkSafe had not produced
sufficient evidence to allow the
Court to assess what each of
the three directors had done by
way of due diligence. The only
evidence WorkSafe had showed
what the Buttles had done as a
group. The Judge was not willing
to draw the inference that evidence
of wrongdoing by WML was also
evidence of wrongdoing by the
individual directors.
To prove a charge against an
individual officer, WorkSafe had
to prove that the relevant officer
personally failed to exercise
the care, diligence, and skill
that a reasonable officer would
have exercised in the same
circumstances. Judge Thomas
was critical that there was no
evidence of what happened behind
the boardroom door as it was
information that WorkSafe could
have obtained but had not asked
for. The Judge said that “how a
company presents itself to the rest
of the world reflects the will of the
board as a whole, not the will of
individual directors.”
The following lessons can be taken
from the decision:
• Officers’ due diligence
obligations are assessed on an
individual basis.
• The officer duty is to be
assessed in accordance with
what a reasonable director
would do in the circumstances
with reference to the specific
responsibilities of the director
and the context of the
operations.
• Officers looking to protect
themselves should consider
how they can prove that they
have exercised due diligence.
This might involve documenting
questions, recording critical
analysis, and detailing the
individual decision making of
directors where necessary.
Landowners and managers must
be exercising active control and
management of the workplace to
owe a duty – s 37 HSWA
WML leased and was responsible
for managing the island. It entered
into licence agreement with tour
operators to permit them to operate
tours on the island, however it did
not itself operate tours or engage in
any activity on the island itself.
Whakaari Management was
charged under s 37 as a PCBU who
manages or controls a workplace
for failing to ensure, so far as is
reasonably practicable, that the
island, the means of entering and
exiting the island, and anything
arising from the workplace was
without risks to the health and
safety of any person.
Judge Thomas held that for a
PCBU to owe a duty under s 37
of HSWA a PCBU “must in fact
be exercising active control or
management of the workplace in
a practical sense. Owning it is not
enough. Making money from it is
not enough. Merely being able to
manage or control a workplace, but
not doing so, is not enough.”
Judge Thomas found WML was
actively managing and controlling
the island as a workplace as:
• The licencing agreements in
place with the various tour
operators included details and
conditions around access to the
island;
• There was engagement and
involvement with tour operators
about licence agreements and
the conditions of accessing the
island; and
• It had the power to control
access to the island by
terminating access under the
licence agreements for any
breach.
Judge Thomas found WML in
breach of its duties under s 37 as it
failed to undertake an adequate risk
assessment before allowing tours
to commence on the island, and
that such risk assessment should
have been revisited and reviewed
periodically due to the variable
conditions on the island.
The Judge held that WML needed
to take its own expert advice to
understand the risks present at
the island and the appropriate
steps that could have been taken
to manage the health and safety
risks present. It was not enough to
obtain information from others; the
information needed to be assessed
and verified independently for WML
to discharge its own duties.
The Whakaari/White Island eruption
and subsequent prosecutions
has attracted attention worldwide
and the friends and families of
the 47 victims from New Zealand
and around the globe will no
doubt be watching again when
the sentencing commences on 26
February 2024.
This article was written by
Olivia Lund
1 This update was originally published
by the Ministry of Justice
Prosecutions brought under the
Health and Safety at Work Act
2015 (HSWA) are increasingly
failing on technical arguments
about the criminal law and not
by reference to health and safety
principles. A reminder that
HSWA prosecutions are first and
foremost criminal prosecutions,
where health and safety
principles come second.
In a recent series of cases,
regulators have fallen short of the
key concepts of “burden of proof”
and “the standard of proof” as they
apply in criminal cases, resulting
in the charges being dismissed.
We look further into why this is
occurring.
HSWA prosecutions are
criminal cases
HSWA prosecutions are criminal
cases in just the same way
that prosecutions for more
conventional charges like assault
and murder are. This has important
ramifications for the way that
regulators are required to handle
prosecutions and the way a Judge
will assess the evidence.
In deciding whether to lay a charge
under the HSWA, a regulator
such as WorkSafe, Maritime
New Zealand or the Civil Aviation
Authority, must apply the Solicitor-
General’s Prosecution Guidelines
(Guidelines).
The Guidelines set out principles
and practices relating to all
prosecutions in New Zealand
that are underpinned by core
“prosecution values”. Those values
aim to achieve consistency and
common standards in key decisions
around whether charges should
be laid, what charges should
be filed and whether criminal
proceedings should be continued
or discontinued. They apply to all
prosecutions.
Falling short
of safety
The underlying issues
in health and safety
prosecutions
The Guidelines specify that
prosecutions should only be
initiated or continued if the
prosecutor is satisfied that the “test
for prosecution” is met. The test is
considered met if:
• the evidence is sufficient to
provide “a reasonable prospect
of conviction” (known as the
evidential test); and
• a prosecution is required in
the public interest (the public
interest test).
The public interest test acts
as a cross-check on whether
a prosecution is appropriate
and necessary: there is no
requirement that every suspected
criminal offence automatically
be prosecuted. But there is a
presumption that serious offences
will be prosecuted. Cases involving
fatalities, injuries or illness are
treated as especially serious.
If a regulator considers that both
parts of the test for prosecution are
met, it may decide to lay a charge
or charges against a defendant
under the HSWA. Commonly,
those charges are for breaching the
primary duty of care in s 36 of the
HSWA.
The burden of proof and the
standard of proof
Once a charge or charges have
been laid, a prosecution is
underway. It is a critical aspect
of all criminal prosecutions that
the prosecutor has the job or
responsibility of proving the
charge and that they must prove
the charge beyond reasonable
doubt: the highest standard of
proof known to the law. These
concepts are known as the burden
of proof and the standard of proof
respectively.
The burden of proof and standard
of proof set a rigorous task for
prosecutors to meet, and rightly