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Deliver the health and safety work you promise, or there may be legal consequences – as a health and safety consultancy recently learnt!
Earlier this year, WorkSafe prosecuted Safe Business Solutions (SBS), a specialist health and safety consultancy after it was found that it was partly culpable for a serious incident because they failed to deliver a traffic management plan.
Background
The story starts with Westown Haulage Ltd and Westown Agriculture Ltd (Westown), family operated companies which share the same site in New Plymouth. One company provides transportation of agricultural products and livestock, and the other offers farm operation services.
Westown contracted SBS to provide ongoing health and safety advice and services, which they subsequently delivered as an ongoing “package”. In early 2020, SBS identified that there was a “desperate need” for a traffic management plan at Westown’s shared site, however noted that it would be difficult to implement this until a new structure was built. Although SBS did not create an interim plan until the structure was built, Westown informally agreed on a trial of traffic flow direction around the main building.
In August 2020 there was a serious incident on site, in which Grant Bowling (an employee of Westown) was knocked unconscious after being struck from behind by an agricultural vehicle. Mr Bowling suffered two brain bleeds, permanent loss of taste and smell, and PTSD.
Investigations into the incident soon revealed that although the structure had been completed earlier that month, the traffic management plan that SBS had identified as “desperate[ly] needed” was not in place. In fact, SBS was still in the process of drafting it, despite having identified six months earlier that it was needed. At the time of the incident the only physical traffic safety measure in place was a multi hazard board, which included a small sign with the speed limit.
Westown was charged with, and pleaded guilty to, exposing an individual to the risk of harm or illness, and SBS faced charges under section 36(2), s 48(1) and 48(2)(c) of the Health and Safety at Work Act 2015 (the Act).
SBS’s Charges under the Act
Section 36(2) of the Act requires that a person conducting a business or undertaking (PCBU) must ensure that the health and safety of others is not put at risk from work carried out as part of the conduct of the business or undertaking.
Sections 48(1) and 48(2)(c) of the Act provide that a person has committed an offence if they have failed to comply with their duty and this exposes any individual to a risk of death, serious injury or serious illness, and is liable to a fine not exceeding $1.5 million.
Findings / Sentencing
SBS was initially reluctant to accept and plead guilty to the charges (although later did plead guilty), likely because it was the first time that a consultant in health and safety at work practices had been prosecuted. The person in charge of the traffic management plan had also left the business to set up in competition – during the sentencing, it was agreed that there had been a failure by SBS to oversee this person’s work.
However, in their investigation, WorkSafe found that a traffic management plan would have implemented measures which could have avoided the incident, and the serious consequences caused to Mr Bowling.
Therefore, as SBS had not only undertaken to provide the traffic management plan but was also a business that specifically provided health and safety services, they failed to comply with their duty under s 36(2) of the Act to ensure that the health and safety of Mr Bowling was not put at risk and that failure exposed Mr Bowling to a risk of serious injury.
Interestingly, after applying the tests during sentencing, the District Court found that SBS was no less culpable than Westown, as the companies were reliant on SBS coming up with a plan to prevent Mr Bowling and other employees from suffering injuries. For this reason, the starting point for SBS was the same as Westown, however the District Court applied discounts (the reason for some of these discounts is suppressed).
In total, SBS was fined $70,0000 and ordered to pay $28,403 in reparations.
Key takeaways
This case signals that consultants who provide health and safety advice to companies are not immune from the Act and may also be held responsible for ensuring health and safety outcomes for workers.
It also highlights that where multiple PCBUs have the same duties in respect of the same work, workplace or workers, more than one PCBU can be prosecuted for the same breach of duty.
WorkSafe’s criticism of SBS’s failure to deliver the specialist health and safety service that SBS promised indicates that WorkSafe is no longer shy to scrutinise the actions of consultants who fail to provide promised health and safety services to businesses and prosecute where appropriate.
We may even begin to see WorkSafe prosecute health and safety consultancies that also deliver reports and recommendations that fail to adequately eliminate or minimise health and safety risks.
Remember though, that Westown was also convicted, so it is clear that PCBUs cannot just hand over their obligations to a consultant. It is important that businesses take the time to understand the purpose and nature of any health and safety recommendations that they receive and be proactive in applying these recommendations.
If you have any questions about your health and safety obligations please get in touch with our Employment 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.
