SBS v WorkSafe [2025] NZHC 979 – Consultants at Risk

The High Court has found that health and safety advisors and consultants may be liable under the Health and Safety at Work Act 2015 (HSWA) for risks arising in their clients’ workplaces.

The case arose following a workplace accident at a bulk agricultural storage and transport operation in New Plymouth operated by Westown Haulage Limited and Westown Agriculture Limited (Westown).

In 2016 Westown engaged Safe Business Solutions Limited (SBS) as an external health and safety consultant. Westown purchased the “Premium Package”, which included four site visits per year, weekly support, annual policy reviews, on-demand telephone assistance, and a designated consultant.

In 2019 Westown moved to a new site. SBS arranged for WorkSafe to carry out a workplace assessment. WorkSafe recommended that Westown improve the traffic management on site. Mr Crafar of SBS agreed to prepare a traffic management plan (TMP).

Despite reporting that there was a “desperate need” for a TMP in subsequent site reports, no TMP was produced due to the ongoing construction of the office on site. Westown and Mr Crafar agreed to delay implementation of the TMP until the construction of the new office building was completed. They agreed on a trial of a flow of traffic direction around the main building, but nothing was documented or implemented.

By August 2020, the office building was finished, but the TMP was still in draft form. The only interim safety measure in place was a hazard board with a 20 km/h speed limit sign, which was too small to read from a vehicle travelling at that speed.

Less than a month later, a worker operating a telehandler struck another worker, causing serious injuries.

Westown and SBS were both charged by WorkSafe. SBS was charged with breaching the primary duty under s 36(2) of the HSWA to ensure that the health and safety of “other persons” (i.e. Westown’s workers) is not put at risk.

While Westown pleaded guilty, SBS sought to have the charge against it dismissed.

SBS argued:

• As a consultant, it did not owe the primary duty to Westown’s workers and that the HSWA did not impose a duty on health and safety consultancies. It relied on the work product/work activity distinction identified in WorkSafe v NEMA,¹ arguing that a duty did not arise in relation to work product.
• The duty owed under s 36(2) to ensure the health and safety of “other persons” is not put at risk only applies to active steps taken by a defendant, rather than a failure or omission to do something.
• If Parliament had intended for consultants to be held accountable under the HSWA, it would have specifically provided for such a duty in the legislation.

WorkSafe argued that SBS had taken on a health and safety role in Westown’s business and that s 36(2) extended to impose duties on SBS for the conduct of Westown’s work.

SBS’s argument was rejected. It subsequently pleaded guilty and was convicted and fined $70,000.

During sentencing, the District Court found that SBS was no less culpable than Westown, as Westown was reliant on SBS preparing a plan to prevent employees from suffering injuries.

SBS appealed its conviction, running the same arguments that it had advanced in the District Court.

The High Court agreed with the District Court finding that SBS was subject to a duty under s 36(2) of the HSWA but reached that result on different reasoning.

Justice Grau dismissed both arguments. In particular:

• Exempting health and safety consultancies/advisors would be illogical since their advice directly impacts workplace safety.
• Work includes both action and
• Failing to complete agreed-upon work does not eliminate liability, as doing so would undermine HSWA’s goal of protecting workers and others.
• SBS had its own separate duty arising from its work to provide a TMP to Westown, concurrent with Westown’s own duty to ensure safety of its workers. That is, they had distinct but overlapping duties.

Justice Grau also considered whether the duty imposed on SBS was excessively broad and concluded it was not. Section 30 of the HSWA requires that a duty must be complied with only to the extent to which the person has, or would reasonably be expected to have, the ability to influence and control the matter associated with the risks. SBS’s duty was therefore to eliminate or minimise health and safety risks so far as was reasonably practicable. In this case, while SBS was not required to control the traffic at the site, it had the ability to produce a TMP, which it failed to do.

She observed that SBS’s obligations would have been met by simply following through on its commitment to implement temporary safety measures, such as an interim TMP and/or proper warning signage, until the final TMP was in place.

The outcome continues a recent trend of Court decisions rejecting the “work product”/“work activity” distinction relied on in the NEMA decision.

Had the distinction been applied in this case, SBS would not have been liable, as the breach concerned its “work product” (the TMP) rather than its “work activity” (ensuring health and safety on site).

The decision illustrates the potentially broad application of the primary duty of care in the HSWA and underscores the importance of s 30, which ensures that PCBUs are only held accountable for matters within their control and influence.

1. [2022] NZDC 8020.

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