The resulting investigation by WorkSafe was the most extensive and complex ever undertaken by the health and safety regulator and led to charges being laid against 13 parties, including a charge against the National Emergency Management Agency (NEMA).
WorkSafe alleged that NEMA had a duty under the Health and Safety at Work Act 2015 (HSWA) to ensure that the health and safety of tourists and tour operators to Whakaari was not put at risk from work carried out by NEMA. This was on the basis that NEMA is the government agency responsible for leadership in reducing risk, being ready for, responding to, and recovering from emergencies, including volcanic eruptions.
On 15 May 2022, NEMA successfully argued that the charge against it should be struck out. The District Court decided that for a NEMA to owe a duty of care to “other persons” under HSWA, it must have been carrying out “work”. The decision turns on the distinction between carrying out the work (for example, conducting sightseeing trips to the island) and the result of that work.
The District Court Decision
The word “workplace” is defined in HSWA, but the word “work” is not. 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).
NEMA did not carry out work on or send workers to Whakaari. All the same, WorkSafe argued that NEMA had a primary duty of care to tourists and tour operators because section 36(2) HSWA created a stand-alone duty to ensure the health and safety of “other persons” arising from its work product. (The judgment does not explain what this work product was, but we expect that it relates to NEMA’s volcanic bulletins and emergency warning processes).
The Court disagreed. The Court held that interpreting section 36(2) in this way stretched the duty beyond that intended by parliament.
The Court considered that section 36(2) requires a PCBU to ensure 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”. It was found that “work carried out” referred to the activity of work itself, rather than the product of that work. (There are separate “upstream” duties within HSWA that contemplate liability in respect of the design, manufacture, supply and installation plant, substances or structures where the product of the work could result in liability).
The Court concluded that while there is a duty to “other persons”, this is in the context of protecting workers from workplace risks. The purpose of protecting “other persons” was a part of securing the health and safety of workers and workplaces i.e. the primary duty to protect workers set out in section 36(1). The section 36(2) duty only went as far as protecting other persons from work being carried out, not the work product. The Court concluded that sections 36(1) and (2) must be read alongside one another.
Allowing the duty to “other persons” to be isolated from duties to workers carrying out work would have significant consequences – effectively creating a broad public safety duty that was not contemplated by parliament when the law was drafted. WorkSafe argued that the duty to other persons was reasonably limited by HSWA’s proportionality concepts (influence and control; what is reasonably practicable). The Court rejected that approach on the basis that no duty applied to “other persons” in the context of this case i.e. there was no work, or a workplace that gave rise to a section 36(1) duty.
The decision is interesting for the distinction between work carried out by a party and that party’s work product, but one must bear in mind that the decision was made on a specific and unusual set of facts – a government agency produced warnings which informed the activities of parties out of its control, in their operation of adventure activities on an active volcano.
Given the range of parties to be charged in respect of the Whakaari tragedy – government agencies, private landowners and adventure tourism operators – the prosecutions will continue to develop health and safety law in New Zealand, in particular in relation to the regulation of adventure activities.
If you have any questions in relation to this article or require specific advice in relation to a health and safety matter, please feel free to get in touch with Hesketh Henry’s Health & Safety Team.
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.