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Safeguard OSH Solutions - Thomson Reuters

Safeguard OSH Solutions - Thomson Reuters



Alert24 - Safeguard Update

Limits to principals' duties confirmed

Limits to principals' duties confirmed
Article Type:
Cases
Publication Date:
2013-08-09
Jurisdiction:
New Zealand

The High Court has confirmed the broad right of principals to rely on contractors with special expertise to look after OHS requirements within that area of expertise, given the usual provisos that this broad right must be interpreted in light of the particular circumstances.

In dismissing a rare appeal by the Department of Labour, Justice Whata took the view that the lower court judge was entitled to draw the conclusions he did based on the evidence before the court (High Court, Dunedin, 1 July 2013).

The DoL had charged Southroads Ltd and another company, Dennis Industries Ltd, under s18(1)(a) of the HSE Act after a temporary platform being constructed alongside a rail bridge collapsed when the piles gave way, causing a crane to slide into the sea. There were no injuries.

Dennis Industries Ltd pleaded guilty, but Southroads successfully defended the charge on the basis that it had hired DIL for its specialist piling expertise and that it could not be expected to act as an "insurer" of the actions of its specialist subcontractor, and that to require it to double-check safety aspects of DIL's piling work would amount to a "counsel of perfection".

In the earlier hearing the DoL argued Southroads should have ensured DIL had obtained geotechnical analysis of the platform's foundations, had tested the stability of the temporary platform before moving the crane onto it, and had obtained specialist drawings and written certification from a design engineer.

On appeal, the DoL argued, among other things, that the DC judge had erred in concluding that Southroads could "contract out" of its OHS obligations by assigning them to a third party, and again in drawing a distinction between its obligations to monitor matters of a technical nature as compared to general matters of health and safety.

The High Court concurred with the DC judge's view that the circumstances were not similar to those in Central Cranes, because in that case the defendant failed to monitor "basic and obvious health and safety on the site". Justice Whata disagreed there was any notion of "contracting out" in this case.

"The Judge is not saying that, as a matter of law, an employer may contract out of his or her responsibilities under s18. On the contrary, the Judge states that it will be a question of fact and degree as to whether delegation of responsibility was sufficient to discharge the duty under s18."

Section 18, he said, "should not demand an intimate understanding by Southroads of the subcontractor's work", and Southroads had no reason to believe DIL would make the "fundamental error" of designing and building platforms without examining the geology and testing the piling accordingly.

Justice Whata concluded: "Plainly therefore the premise of the judgment was sound - delegation of the key task of ensuring the safety of the platforms to DIL was objectively appropriate."

People Mentioned:
Justice Whata
Organisations Mentioned:
Southroads; Dennis Industries Limited
Reference No:
130809CA-0022

From Alert24 - Safeguard Update

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