4.03.2021

Demolishing the “I’m not a PCBU” defence

In WorkSafe New Zealand v Dong SH Auckland Limited [2020] NZHC 3368, the High Court considered the statutory concept of a Person Conducting a Business or Undertaking (PCBU). 

The facts of the prosecution were uncomplicated.  During the demolition of a residential property in December 2017, a wall fell onto a neighbouring property causing damage.  Asbestos was subsequently discovered in the demolished building materials.  Quick Earth Moving Limited had carried out the demolition. It was charged by WorkSafe, pleaded guilty and was fined $150,000.  WorkSafe laid 3 charges against Dong SH Auckland Limited, a project management consultancy, in respect of the incident. 

Dong SH denied liability saying that it was neither a project manager nor a head contractor for work undertaken at the residential property.  Dong SH said that it had merely acted as a facilitator between the property developer and Quick Earth Moving, with Dong SH’s director assisting the property developer on the basis of friendship.

The District Court held that WorkSafe had not proved the charges beyond reasonable doubt and dismissed all charges. The District Court was not satisfied that Dong SH had been engaged in any role in respect of demolition work at the property, and as such it did not have duties under the Health and Safety at Work Act 2015 (HSWA) in respect of that work.

WorkSafe appealed, arguing that a person who manages a demolition project for another as their friend is under the same obligations as someone who is not a friend.

The High Court agreed with WorkSafe.  It held that the issue for the District Court was not whether Dong SH had contractually agreed to manage or supervise the demolition. Instead, the question was whether Dong SH was actually managing or supervising the demolition, and was therefore a PCBU in relation to the demolition.  The matter was remitted back to the District Court for a new trial.

The simple point is that there is no requirement that a PCBU be contractually tied to the activity in question, for a duty to arise under HSWA.  If it were otherwise, a fundamental purpose of HSWA –that workers and others affected by work be afforded the highest level of protection against harm to their health, safety, and welfare from hazards and risks arising from work – could be frustrated or undermined.

If you have any questions about your health and safety obligations as a PCBU, please get in touch with our Health and Safety Team or your usual contact at Hesketh Henry.

 

Disclaimer:  The information contained in this article is current at the date of publishing and is of a general nature.  It should be used as a guide only and not as a substitute for obtaining legal advice.  Specific legal advice should be sought where required.

 

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Kerry
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