The District Court has dismissed a charge against the National Emergency Management Agency (NEMA) by WorkSafe New Zealand (WorkSafe), finding that NEMA's duties under the Health and Safety at Work Act 2015 (HSWA) did not extend to communicating volcanic activity risk on Whakaari (White Island) to ensure the safety of members of the public.
Duties under the HSWA are extensive and cover many operations whose activities could affect the public, including commercial landlords, transport operators and, arguably, providers of information that may be relied on by the public. WorkSafe has also cast its net more widely in recent years by looking to hold accountable PCBUs even where they were not "on the spot".
Even so, the prosecution of 13 parties, including three individuals, generated comment at the time. One of those, a tourism company with no customers on Whakaari when it erupted, was recently fined $227,000 and ordered to pay $40,000 in prosecution costs.
The District Court's decision in WorkSafe v NEMA is a rare case considering the duties that a PCBU owes to the general public, in this case people who were far removed from NEMA's actual workplace.
What was the case about?
WorkSafe alleged that NEMA failed to adequately communicate the risk posed to the public by volcanic activity on Whakaari and that it failed to consult, co-operate, and coordinate with the Institute of Geological and Nuclear Sciences and others about the implications of that volcanic activity.
WorkSafe argued that NEMA's alleged failures exposed visitors and tour operators on Whakaari to the risk of death or serious injury from volcanic activity. Unfortunately, that risk was realised in tragic circumstances in 2019, leading to 22 deaths and serious injuries to another 25 people.
As NEMA did not carry out any work on Whakaari, did not send workers to Whakaari, and never placed anyone else on Whakaari, the question was whether s 36(2) of the HSWA created a duty to communicate to the public the risks posed by volcanic activity (the case did not address whether or not such a failure had occurred).
Section 36(2) states that a PCBU (in this case, NEMA) must ensure, so far as is reasonably practicable, that the health and safety of "other persons" (ie people who are not workers) is not put at risk from work carried out as part of the conduct of the business or undertaking.
WorkSafe argued that "other persons" included visitors and tour operators on Whakaari and that the "work carried out" included NEMA's work product, such as advisory statements, and not just the process of carrying out that work.
The District Court disagreed, holding that:
the HSWA's primary focus is on workers and workplaces, not duties to the general public;
the legislative history, including the bill, clearly demonstrated an intention that any duty is in respect of work activity as opposed to work product; and
a duty to the public would be wide-ranging and require significant regulation and/or statutory guidance, and was unlikely to have been created without additional detail in the HSWA itself.
WorkSafe argued that a wider interpretation of s 36(2) would not result in unrealistic duties. That was because any duty would be limited by the PCBU's actual influence and control over the activities, and would be confined to reasonable steps and foreseeable risks.
The Court recognised that those limitations would apply. However, it held that s 36(2) was simply not intended to create a duty of this kind. The Court noted that while duties do arise to non-workers, the cases on which WorkSafe relied were much more closely connected to the physical work activity than was the case for NEMA.
The District Court has limited, at least for the present, the scope of the duty to protect the general public from risks that do not arise directly from the work undertaken by a PCBU. However, it is clear that there is a duty to the public in some circumstances, and the appropriate boundary has not yet been worked through in detail by the courts.
It should also be recognised that the judgment is limited to its facts. The result can be contrasted with cases where the worksite creates hazards that could harm members of the public, and does not limit the duty that PCBUs have to ensure the safety of visitors or those in the vicinity of their worksites.
The distinction drawn between work activities and work products is likely to be a key focus of future litigation. For example, it could be argued that a general duty to public could equally apply to WorkSafe itself, given the criticisms of the independent report into WorkSafe's role at Whakaari. WorkSafe's regulatory activities are perhaps closer to the "activity" end of the spectrum than was NEMA's conduct. However, much may depend on the type of the work product. An instruction manual for handling heavy machinery or dangerous substances would seem to be work product, but is clearly different to an inaccurate weather forecast.
Further definition of the boundaries of the duty under s 36(2) will depend on the types of prosecutions that WorkSafe brings in future, and on defendants who are prepared to defend charges brought against them, but it is an area to watch with interest including as to any appeal that might be brought.
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