Morning all, I was belated reading the older thread on e-scooters, and there was a comment about Wellington Council's duties under s37 which got me thinking, especially in light of what is going on in Auckland at present.
I think we will all agree that Lime is a PCBU but does Lime have any duties under HSWA to a user of its service/property (ie 'other persons') when the wheels of scooter lock during use and the user is badly injured?
In terms of section 36(2) HSWA, is the provision of a service by Lime ‘work carried out as part of the conduct of the PCBU’ in terms of subsection (2)? Work is not defined under HSWA, but perhaps the term is wide enough to mean ‘a task or tasks undertaken’ by Lime (even if that is simply via the ‘juicers’ who are engaged casually or as contractors to collect, charger and re-distribute Lime’s property.
My gut feeling is that be a stretch though, given the purpose of HSWA and its application to work and workplaces. Certainly, I do not think it could be any of the other duty under HSWA as these all flow from the workplace e.g. an upstream duty re supplying plant, or the s37 duty as it the places Lime scooters are used do not fit nicely at all within the definition of workplace, and using the Court's guidance on s37 in the Athenberry decision.
In terms of a Council, we have a PCBU, who has granted a license to Lime (as I understand rather superficially) to trial its services in public spaces. Does it have any duties under HSWA to the public who use the Lime scooters? Again, intuitively, I think it would be a stretch under HSWA to fit AC within s36(2) but, that said, what is the ‘work carried out’ in terms of sub (2)?
Granting a license is part of the tasks a Council undertakes. If you could squeeze through that gate, s30 would be likely to operate to limit the extent of the duty, but who’s to say Council cannot limit the grant of a license to require Lime to provide, say, PPE for end users to use with the scooters?
I think on balance it'd be unusual to see WorkSafe attempting to regulate in this area, but I'd be interested to hear your thoughts on my analysis above.
I doubt WorkSafe would come within sniffing distance of those two scenarios, but there is a third which would give Lime's lawyers conniptions. Regarding the 'juicers', Lime is specifying the tasks they are to perform and is paying them. If a juicer is injured while carrying out his or her juice tasks, there is no reason why WorkSafe should not investigate - or is there?
Welcome to the gig economy, which H&S regulators the world over are struggling to get to grips with.
It seems to me that Lime only has duties when juicers are doing their work, and when maintenance is being done on the scooters (whether by juicers or anyone else). Otherwise, the connection Sam is trying to draw to work seems too remote. I agree with Peter that WorkSafe is not likely to see this as a priority, and suspect that no one else will bring it to court either as the ACC regime effectively protects Lime against almost any claims for personal injury. In that respect, setting up in NZ was a great choice of test location by Lime.
I'm struggling to work out how Lime can influence how their contractor carries out the work.
My customers cannot effectively control what I do at my own work premises - they're not responsible for OOS injuries that I encounter.
Logically, since a 'Juicer' is performing a task for hire or for reward, if they were testing the unit and the wheels locked, then it would be something that required examination to determine whether or not Lime had prior knowledge of the adverse event having occurred before the incident with their 'Juicer'. In the event of the prior knowledge of a problem, then there would logically be a case to answer.
On Radio NZ Checkpoint today, they interviewed a Auckland Councillor (I forget who - maybe Chris Darby?), and he identified that Lime had said they had no knowledge of events occurring prior to a couple of weeks ago. Checkpoint raised the point that they had interviewed people who claimed to have experienced the wheel locking last year. Lime has claimed that they were not notified of these earlier events. If it could be established that these incidents last year had been notified to Lime, and that Lime did not act on those events, and that further, a Juicer was injured by a wheel-lock event, then Lime has a case to answer.
I think the sequence there is logical...
I had another look at the Act.
Section 37(1) seems to me to cover a local authority who manages or controls a workplace such as a footpath. I think that section 37(4) limits that duty in such a way as to leave wide open the duty of a local authority.
Section 42 imposes a duty on (in this case) Lime in relation to "plant that could be used at a workplace" and extends the duty to 42(2)(f) "persons who are at or in the vicinity". If a juicer who is at work or a Lime user is at work and harms such other people there would seem to me to be a breach.
Maybe there is a proper lawyer out there who can comment?
Hi Chris, I do not think that a footpath is a workplace for a local authority unless work, in more than a transitory sense, is being carried out on it so s37 is out.
For the same reason, I would disagree that s42 would apply to Lime as it is confined to plant that is used or could be reasonably expected to be used at a workplace. Again, the definition of workplace in s20 and the District Court's comments in the Athenberry decision do not sit tidily with a footpath as a workplace.
I think Peter and Greg have hit the nail on the head in responding to my original post - interesting, but a bridge too far!
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