WorkSafe New Zealand v National Emergency Management Agency [2022] NZDC 8020

The judgment confirms that the purpose of the HSWA is to secure the health and safety of workers and workplaces, not to protect against faulty work product, even if that work product put the health and safety of others at risk.

In December 2019 there was a catastrophic eruption of Whakaari which resulted in 22 dead and 25 injured. WorkSafe laid charges against 13 organisations and individuals, including NEMA.

NEMA is responsible for coordinating the central government’s response and recovery functions for national emergencies. NEMA did not carry out any work physically on Whakaari. It did not send any workers to Whakaari, and it never placed any person on Whakaari. Its “work” in relation to the volcanic activity was advisory/information based.

WorkSafe said NEMA had a duty under s36(2) HSWA to ensure that the health and safety of tourists and tour operators to Whakaari was not put at risk from work it carried out as part of its business or undertaking. Further, it alleged that NEMA breached this duty by failing to consult, co-operate and co-ordinate with GNS Science and Whakaari Management regarding the implications of volcanic activity, and communicate the risk posed by volcanic activity to the public.

Judge Thomas disagreed and dismissed the charges against NEMA.

Section 32 HSWA sets out the primary duties of a person conducting a business or undertaking (PCBU). In particular s32(2) provides that:

A PCBU must 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.

At issue was whether this duty applied to NEMA and its work product in relation to Whakaari’s volcanic hazards. The issue was a matter of statutory interpretation, with the meaning of s36(2) to be construed by reference to the plain language, context and the purpose of the Act.

WorkSafe said that “other persons” on plain reading included Whakaari visitors and tour operators, and that “work” means the process of carrying out work (work activity) and the result of that work (work product). Section 36(2) created a stand-alone duty not to put people at risk from work. It said this interpretation of the duty was consistent with the purpose of the Act.

Judge Thomas considered that s36(2) is intended to be read alongside s36(1), which imposes a duty on PCBUs to ensure the health and safety of workers who are at work or otherwise carrying out work. In this context, the s36(2) duty to protect “other persons” is part of the overall aim of securing the health and safety of workers and workplaces. Further, none of the other subsections of s36 impose health and safety obligations on PCBU’s beyond worker and workplace safety.

Judge Thomas considered that the duty proposed by WorkSafe would go far beyond worker and workplace safety. It would create significant additional duties on businesses in relation to work product, require significant regulation or at least statutory guidance and would require a wide-ranging monitoring regime. If Parliament had intended to impose such a duty, it would have done so expressly and used very clear language. Further, as fines under the HSWA are uninsurable, he considered it unlikely that Parliament would have intended to prevent suppliers from insuring themselves against the consequences of faulty work product.

Judge Thomas rejected WorkSafe’s submission that the duty was not wide-open and unrealistic because it would be limited by factors like influence and control, reasonable steps, and foreseeability. These factors do constrain duties owed under the Act, but only if a duty is owed in the first place.

He also considered that the legislative background of the Act did not support WorkSafe’s position.  Imposing such a duty would have been controversial, particularly when there is no evidence of it being debated in Parliament. Parliament had also modelled the HSWA on the equivalent Australian legislation, where express care had been taken in drafting to limit the duties to occupational health and safety.

We agree with His Honour that the s36(2) duty not to put other persons at risk from work does not (and should not) extend to faulty work product. However, the HSWA only prohibits insurance against fines under the Act. Therefore, if WorkSafe was correct, businesses would still be able to insure against the consequences of faulty work product such as liability for reparation, defence costs and civil liability.

If accepted, WorkSafe’s interpretation would have extended the scope of the Act far beyond its intended purpose, to protect occupational health and safety for workers and workplaces. WorkSafe, has, for good reason, focused its regulatory guidance function on workplaces, workers and work activity. It would require significantly more resources if its role were expanded to include regulating and monitoring the risks to public safety from faulty work product. A clear indication from Parliament would be necessary to impose a strict liability offence for faulty work product and expand the role of WorkSafe in this way.

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