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Safeguard OSH Solutions - Thomson Reuters

Alert24 - Safeguard Update

Section 16 amendments 'unhelpful'

Section 16 amendments 'unhelpful'
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New Zealand

An amendment made to the HSE Act back in 1998 in response to the so-called beekeeper/Berryman case is still causing confusion today, according to a High Court judge.

In dismissing an appeal against conviction by Alliance Roof Solutions Ltd (High Court, Auckland, 24 October), Justice Rebecca Ellis revisited the amendment made to section 16 in response to the prosecution of Berryman, a farmer who had permitted a beekeeper to keep hives on the farm. The beekeeper was killed when a bridge on the farm collapsed while he was driving across it.

The amendment to section 16 sought to limit the liability of landowners to people in the place of work for reasons other than the work purposes of the landowner. In her decision, Justice Ellis says the amendment made the distinction between "place of work" and "vicinity to the place of work" much more important.

"It is quite clear that the liability of a person who controls a place of work to those 'in the vicinity' was not intended to be and was not (on the face of it) changed by the amendment. But the fact that the amendment did seek to impose limitations on liability to people who were neither employees nor contractors and who entered into the place of work, potentially has a knock-on effect.

"In particular, the restrictions make it much more important to clearly define the boundaries between the 'place of work' itself (where liability to strangers is limited to particular classes) and the 'vicinity' (where liability to strangers is not so limited)."

In December 2013 Alliance Roof Solutions was convicted in the District Court under s16(1)(a) and fined $30,000 after a woman walking along the driveway of a block of flats was struck by a piece of wood thrown from the roof by an employee of another company contracted by Alliance to replace the roof. The other company - which was actually carrying out the roof job - was also prosecuted.

Appealing that decision, Alliance disputed the DC judge's conclusions that Alliance controlled the place of work, that s16(1)(a) applied, and that the exemption clause s16(4) did not apply.

In accordance with the 1998 amendment, Justice Ellis said the key question was whether the driveway was in the place of work. If it was found to be in the place of work then Alliance would have no liability to the victim under s16, as she was neither an employee nor a contractor of the company, nor was she a customer or anyone else with consent to be in the place of work.

"[The amendment] was not intended to limit liability in relation to cases such as the present. But if the driveway forms part of the place of work, then that is its effect."

Justice Ellis said that a 'place of work' could only be a place where a reasonable person would appreciate that work is being undertaken. In this case the driveway onto which roof debris was being thrown was not cordoned off in any way, nor were there any signs warning that roof work was being undertaken. The driveway was the only means of access for pedestrians and vehicles, which remained its principal purpose. The place of work, therefore, was confined to the roof of the units and to the scaffolding attached to them.

"I consider that a 'place of work', at least for the purposes of s16(1), must be clearly identifiable as such and not be serving some other function that is not related to the work being done there. On that analysis the 'place of work' here did not include the driveway."

The victim, therefore, was in the vicinity of the place of work; the liability exclusion clause s16(4) applies only to the place of work, so does not apply in this case.

The question then arose: did Alliance have control over the place of work (ie: the roof and scaffolding)? Justice Ellis found it did. Alliance held the contract with the owners of the building for the reroofing. The contract expressly referred to health and safety and to the need for edge protection. While Alliance had chosen to subcontract out the roofing job, it remained responsible for ensuing systems were in place to protect workers and members of the public - for example, barriers, ropes, signs or use of a spotter.

Alliance, said Justice Ellis, knew or ought to have known about the circumstances, including the possibility that debris would fall or be thrown from the roof.

In dismissing Alliance's appeal, she said it had not been unwarranted given the way in which the statute had been interpreted in the lower court. "I have differed [from the DC judge's] analysis in some respects and, in my view, s16 was unhelpfully muddied (at least in relation to circumstances such as the present) by the 1998 amendment."

People Mentioned:
Justice Rebecca Ellis; Berryman
Organisations Mentioned:
Alliance Roof Solutions
Reference No:

From Alert24 - Safeguard Update

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