19.02.2021

When is someone ‘at work’ under the Health and Safety at Work Act?

The High Court has confirmed that to be ‘at work’ for the purposes of the Health & Safety at Work Act 2015 (HSWA), a link between the particular activity undertaken and the work of the PCBU is required. If that link is established, any person engaged in the activity will be 'at work' for the purposes of the HSWA.

Sarginson v Civil Aviation Authority [2020] NZHC 3199

Introduction

In December 2020, the High Court dismissed two appeals arising from the prosecution of a helicopter pilot involved in a fatal crash.  The decision provides High Court authority in relation to four important issues under the Health & Safety at Work Act 2015 (HSWA):

  1. Liability of ‘officers’ of a person conducting a business or undertaking (PCBU);
  2. When a person is ‘at work’ for the purposes of the HSWA;
  3. Clarification of the elements of the ‘recklessness’ offence (s 47 of the HSWA); and
  4. The correct calculation of reparation for consequential loss for family members of the victim of a fatal workplace incident.

This article addresses the second of these topics – when a person is ‘at work’.  
Background

Following a trial in the District Court, Murray Sarginson was convicted of two charges of engaging in conduct that recklessly exposed a person to the risk of serious injury or death (s 47 of the HSWA).

Mr Sarginson appealed those convictions.  One of Mr Sarginson’s grounds of appeal was whether he, and the victim, were ‘at work’ at the relevant time.

Facts

Mr Sarginson and the victim, Liam Edwards, had been partners in an earthmoving business, AgWorks South (AgWorks).  On Sunday, 30 April 2016, the two men were flying in a helicopter from Mr Sarginson’s farm at Athol in Southland to the remote Mount Algidus Station, where AgWorks was working.  Mr Sarginson co-owned the helicopter with his nephew.

Approximately one hour into the flight, the helicopter reached the mountains around the MacKenzie Basin and Lindis Pass area.  Mr Sarginson, who was flying the helicopter, discovered the area was shrouded in a heavy layer of cloud, which diminished visibility and obscured the ground below.

Mr Sarginson decided to descend.  During the descent, Mr Sarginson brought the helicopter to a hover.  The helicopter had difficulty sustaining the hover because it was overloaded.  The additional weight compromised its balance.  The combination of reduced visibility and compromised balance was disastrous.  It caused Mr Sarginson to lose spatial awareness and concentration.  As a result, the helicopter struck the side of the hill. Mr Edwards died from his injuries at the scene.  Mr Sarginson also suffered serious injuries, but later recovered.

Mr Sarginson was convicted of two charges under the HSWA, both under s 47: that, as an officer of AgWorks, and as a worker of that business, he, without reasonable excuse, engaged in conduct that exposed Mr Edwards to the risk of death or serious injury, and was reckless as to that risk.

‘At work’ under the HSWA

Why is the definition of ‘at work’ important?

The HSWA is concerned, amongst other things, with “protecting workers and other persons against harm to their health, safety, and welfare by eliminating or minimising risks arising from work or from prescribed high-risk plant”.

In order to achieve that purpose, the HSWA imposes on a PCBU certain duties.  One limb of the so-called “primary duty” (section 36) is: a PCBU must ensure, so far as is reasonably practicable, the health and safety of workers who work for the PCBU, while the workers are at work in the business or undertaking.

An officer of a PCBU (which includes a partner in a partnership, like Mr Sarginson) must exercise due diligence to ensure that the PCBU complies with that duty or obligation.

The HSWA also imposes duties on workers, including:

While at work, a worker must—

  1. take reasonable care for his or her own health and safety; and
  2. take reasonable care that his or her acts or omissions do not adversely affect the health and safety of other persons.

As the provisions of the HSWA set out above demonstrate, whether a person is ‘at work’ is an important element of the relevant HSWA duties in this case.  If Mr Sarginson and Mr Edwards were not ‘at work’ during the helicopter flight, then the PCBU did not owe a duty. By extension Mr Sarginson did not owe a duty as an officer to undertake due diligence. Further, as he was not at work, he did not owe a duty as a worker. Ultimately, had Mr Sarginson’s arguments been accepted, he would not be guilty of an offence under the HSWA.

The Appeal

On appeal, Mr Sarginson argued that the District Court made an error when assessing whether or not the two men were ‘at work’ during the helicopter flight.

Mr Sarginson argued that the HSWA is focused on risks ‘arising from work’.  Therefore, the relevant risk (in this case the risk of a helicopter crash) must have a necessary connection with the work itself.  That is, the risk of serious injury or death needed to arise out of the type, or nature, of the work done by the business (for example a farmworker being injured while on a quadbike).  Alternatively, the risk may arise from work but manifest during travel (for example, a person crashing on the way home from work after working excessive hours).

Mr Sarginson argued that the risk of the helicopter crashing while on transit to the Mount Algidus Station was unconnected to AgWorks business or undertaking.  In particular, pilot error “is a risk inherent to the nature of helicopter travel”.  He emphasised that the helicopter was not used for any aspect of the work at the station “either to move workers or equipment around the worksite, nor did it have any role in the earthmoving operation”.  Further, the overloading was not due to AgWork’s business (it was not, for example, transporting equipment to Mount Algidus Station).

In the absence of any connection between the risks identified by the prosecution (of the helicopter crashing) and AgWorks operations, Mr Sarginson argued that the helicopter flight did not give rise to any duties under the HSWA.  If the Court failed to focus on whether the risk arose from work, he argued, the Court risked extending the reach of the HSWA to all risks “inherent to the travel itself unconnected to the duty holder’s work”, and that they are already regulated and controlled by applicable transport law.

Ultimately, if AgWorks was not subject to any duties as a PCBU (in relation to the helicopter travel), Mr Sarginson could not be subject to any duties as one of its officers nor subject to any duties as a worker.

The Decision

The High Court dismissed Mr Sarginson’s appeal on this ground.  It found that Mr Sarginson’s argument placed a “gloss on the statutory purpose by imposing a qualifying requirement that the risks to be eliminated or minimised must arise from or be connected with the PCBU’s particular business or undertaking”.

The Court considered that this “gloss” would be an unduly restrictive interpretation of the HSWA and “limit the duty holders obligations to those directly associated with the carrying out of the PCBUs particular work”.  Instead, the Court found that the correct approach was to find a link between the travel (in this case, the helicopter flight) and the work of the PCBU (earthmoving operations on a remote high country station).  Once that link has been established, the risks that arise from the relevant mode of travel will, necessarily, be risks which arise from work – no matter how generic.

The Court went on to clarify the extent of the duty holder’s obligations to manage such risks.  Section 30 of the Act sets out two constraints.  First, the steps taken to mitigate or eliminate the risks must be reasonably practicable.  Second, the duty holder must only eliminate or minimise those risks to the extent that the person has, or can be reasonably expected to have, ability to influence or control the matters, in this case the travel, to which the risks relate.

It does not matter whether the risks are also covered by some other branch of transport law.  Rather, the focus of the inquiry is the extent of the duty holder’s obligation in any given set of circumstances.  The Court gave the following example:

If a PCBU was to arrange a flight for a worker using a licensed carrier such as Air New Zealand, it would likely have disclosed and discharged its HSWA obligations in respect of the work travel simply by making a booking.  There were no other reasonably practicable steps that the PCBU could take to practically mitigate the risk of air travel.  On the other end of the spectrum, the Court noted that the obligations on the duty holder will likely be substantially greater when a worker is required to voyage on a private vehicle through the Atlantic Ocean to a Subantarctic island.

The Court concluded by confirming that the main purpose of the HSWA was to protect workers by eliminating or minimising risks arising from work.  The risks associated with the helicopter flight in this case arose from work, specifically work travel.  As such, the District Court was correct to hold that the two men were ‘at work’ during the helicopter flight and that the HSWA duties applied to Mr Sarginson.  This ground of appeal was dismissed.

Comment

The High Court has confirmed that once a link is established between a particular activity (in this case travel), and the work of the PCBU, the risks associated with the particular activity will be deemed to be risks arising from work.  It does not matter how generic the risks are, or that risks are regulated by some other legislative scheme.  The individuals engaged in the activity ‘arising from work’, will be ‘at work’ or the purposes of the HSWA.

In many respects, the outcome of this aspect of the appeal is not unexpected. Prosecuting agencies have been operating in accordance with this understanding of when a person is ‘at work’ for some time.  However, it is still a helpful decision.  It provides High Court authority for the approach taken by prosecuting agencies, and helps to clarify the position for PCBU’s seeking to comply with the HSWA.

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

Do you need expert legal advice?
Contact the expert team at Hesketh Henry.
Kerry
Media contact - Kerry Browne
Please contact Kerry with any media enquiries and with any questions related to marketing or sponsorships on +64 9 375 8747 or via email.

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