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Safeguard OSH Solutions - Thomson Reuters

Safeguard OSH Solutions - Thomson Reuters



Safeguard Magazine

Legal viewpoint—Consultants at risk

Could a health & safety consultant be charged under the HSW Act for giving poor advice? AARON LLOYD and NATALIE HEALY cite a UK case in saying yes, it could happen.

In the UK, there have been a handful of high profile prosecutions of health and safety consultants by the Health and Safety Executive. The most notable, in our view, saw a consultant sentenced to nine months’ imprisonment for providing poor health and safety advice which culminated in the death of a worker on site.

Given the new health and safety landscape in which we are all now operating, the UK prosecutions raise the question: could the same happen here?

THE UK CASE

Mr Goulding, a qualified health and safety advisor employed by AllDay Safety Services Ltd, advised Siday Construction Ltd in relation to a basement excavation in Fulham, London. Mr Goulding carried out a risk assessment on the site, but was found to have cut several corners, including copying and pasting a work method statement for the job from a previous instruction. He also claimed that he was unaware of the extent of the excavation work on site, a claim which the Court found “ludicrous” given that he had carried out a site inspection nine days prior to the incident.

The collapse of a trench at the site, which resulted in a worker’s death, was found to be reasonably foreseeable and both Mr Goulding and Siday Construction’s owner were successfully prosecuted for failing to comply with their duties under the UK’s Health and Safety at Work Act 1974.

THE NZ POSITION

Since the Health and Safety at Work Act 2015 came into effect in New Zealand, there has been a focus on the duties of PCBUs and officers, and the heightened responsibility that they all now carry. However there has been less discussion about the duty that all workers owe under the Act to take reasonable care to ensure that their acts or omissions do not adversely affect the health and safety of others (section 45(b)). A similar duty also existed under the now repealed HSE Act 1992.

It was the equivalent section in the UK statute that Mr Goulding was charged under. That section is drafted on very similar terms to the New Zealand provision, and requires every employee while at work to take reasonable care for the health and safety of himself or herself and of other persons who may be affected by his or her acts or omissions at work.

Given the parallel duties under the HSW Act 1974 (UK) and HSW Act 2015 (NZ), it is entirely conceivable that a New Zealand-based health and safety consultant could face prosecution if their advice contributed to an incident or the potential for an incident, which is exactly what happened to Mr Goulding in the UK.

OFFICER DUTIES

Indeed, in our view, section 45(b) of the HSW Act (NZ) is not the only avenue of potential liability for health and safety consultants. Consider section 18(d), which provides an exemption for an advisor from being an “Officer” of the PCBU they advise if they are not in a position to exercise significant influence over the management of the business or undertaking. While this section may exempt a health and safety consultant from being an Officer of a PCBU in the company that receives their advice, it does not prevent them from being an Officer of the PCBU that they are operating through.

Under section 36(2), a PCBU has a primary duty to 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. Arguably, for a health and safety consultant, that includes the workers of any PCBU to which they provide health and safety advice in the course of their work. As noted above, they may be an Officer of the PCBU they are operating through and, if they are, they have personal due diligence obligations which include, among other things, to ensure that the PCBU meets its primary duties.

PROSECUTION POSSIBLE

The UK case received a lot of publicity when it was decided in 2014 because it was the first time that an immediate custodial sentence had been handed down for a breach of section 7(1) of the HSWA (UK), and one of the first times a health and safety consultant had been prosecuted in their personal capacity.

We have not seen this kind of prosecution in New Zealand yet, but with the new regime in its infancy, it is not beyond the realm of possibility that this may arise in the future.

Aaron Lloyd is a partner and Natalie Healy a senior solicitor with Minter Ellison Rudd Watts.

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