• Riki Brown
    7
    If this has been discussed in previous threads, or if there is a good online resource, please point me in the right direction (i searched but didn't find).

    I'm new to this game so forgive my ignorance

    What are the legal liabilities of a heath and safety professional in New Zealand?

    e.g. If I was a health and safety professional contracted (or employed I guess) to advise, consult, review, create documents, create procedures for a company and the company was to have a fatality at work. Could I be prosecuted? If so through what channels?

    Are there any cases I should read?

    Thanks

    Riki
  • Peter Bateman
    213
    I can't recall a New Zealand H&S practitioner being charged by WorkSafe, though it certainly could happen.
    However here's an example from the UK last year where a consultant was fined a modest amount for giving poor advice.
  • KeithH
    15
    Hey Riki
    All things are possible.

    Here in NZ there do not appear to be any legal precidents regarding the legal liabilities of H&S Professions. The nearest I can find is one in the UK - there may be others - https://www.shponline.co.uk/safety-management/director-safety-consultant-jailed-labourers-death/#:~:text=after%20labourer%27s%20death-,Lauren%20Applebey,excavation%20in%20Ellerby%20Street%2C%20Fulham.

    Section 7 of the UK HSWA 1974 appears to equate to Section 45 of New Zealand's HSWA.

    Courts may look at whether a H&S Professional has 'significant influence' over the activity. That may relate to the position within a business as well as responsibility.
    NZ often looks to Australia and the UK for case law.

    Others may know more - Chris Peace is a valuable resource.
  • Steve H
    114
    Here in NZ there do not appear to be any legal precidents regarding the legal liabilities of H&S Professions. The nearest I can find is one in the UK - there may be others - safety-management/director-safety-consultant-jailed-labourers-death.KeithH
    That link certainly shows the potential liability that a "cut and paste job" could get you, nice find Keith :up:
  • SafetylawyerNZ
    70
    The risk seems low to me. It is possible that WorkSafe could argue a consultant had a duty under s36(1)(b) HSWA, on the basis that he/she was a PCBU and "influenced or directed" workers, but the definition of PCBU excludes workers and officers (so would potentially only capture self-employed consultants) and far there is no relevant case law on the extent of what "influence" means.
  • Bruce Tollan
    30
    Adopt the title of 'Health & Safety Advisor' instead of 'Health & Safety Manager'
  • Mark Kenny-Beveridge
    27
    WorkSafe has stated the following in regards to a H&S per not being an officer
    "Who is not an officer?
    People who provide health and safety or other advice, or make recommendations to senior leadership are not officers solely on this basis.

    Some examples of people who are not officers (unless they also fall into one of the officer categories described above) include:

    health and safety managers
    team leaders, line managers and supervisors
    workplace health and safety officers and advisors"

    https://www.worksafe.govt.nz/managing-health-and-safety/getting-started/mythbusting-and-faqs/officer-faqs/
  • Chris Peace
    51
    None of the above would avoid a charge under section 45(b) of the Health and Safety at Work Act if an occupational health and safety advisor/manager/consultant/person did not take reasonable care that their acts or omissions did not adversely affect the health and safety of other people.
    An in-house advisor/manager is just a worker by another name and is caught by 45(b).
    A consultant may be a sole trader (=worker) or work in a small and medium-sized business but is then a PCBU.
    In a case in Ashburton (WorkSafe NZ v Precision Animal Supplements Ltd) a safety consultant got some very poor comments from the judge and I think was lucky that WorkSafe did not prosecute them.
    And a recent event leads me to believe that a lawyer acting improperly for their client so causing considerable stress for other people could fall foul of section 45(b). As could an engineer whose poor design results in harm. Or a traffic controller in road works (although the case in question ended up in the Employment Court).
    I count three successful prosecutions under 45(b) of workers and one under the Health and Safety in Employment Act that would now fall under 45(b)
    I have several short articles on the above from NZ and the UK that my Master's students will be discussing during a block course next week.
    Moral: get qualified and do your job competently.
  • Steve H
    114
    Moral: get qualified and do your job competently.Chris Peace
    Words to live by, Chris.

    WorkSafe has stated the following in regards to a H&S per not being an officer
    "Who is not an officer?
    People who provide health and safety or other advice, or make recommendations to senior leadership are not officers solely on this basis.
    Mark Kenny-Beveridge

    Our friends, the regulators, frequently say things that are at odds with the various Acts and Regulations that they should be overseeing and ensuring compliance with Mark. Doubtless, there are many reasons for this.

    But whatever the cause, the effects are, a largely static workplace death rate and a steadily growing serious workplace accident rate, with the notable exception of the forestry sector, why is that do you suppose?..
  • Franz Assenmacher
    0
    From my experience, it depends on whether the WorkSafe Inspector is trying to make a name for themselves. They will try to find some duty to apply to the situation
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