Proposed Changes to the Health & Safety Act

With the 30-year anniversary of the Cave Creek tragedy, the chapter being closed on the Whakaari/White Island prosecutions, and the Government’s recent announcements of a suite of changes to the Health and Safety system, we look at the current legal framework and whether it needs changing.

Introduction

Often when we think of Health and Safety obligations, our minds naturally go to traditional workplaces, but the duties actually extend further than that.

Our diverse landscapes provide thrill seekers and more leisurely recreationists alike plenty of opportunity to experience our great outdoors. But adventure activities are not without risk (some more so than others), so, what happens when things don’t go to plan and who is responsible?

Workplace Relations and Safety Minister Brooke van Velden said, while announcing proposed changes to the Health and Safety at Work Act 2015 (the Act), that the current work health and safety settings have reduced the appetite for landowners, managers, councils, farmers and Iwi to allow access to their land for recreational use due to fear about their legal liability if someone gets hurt.

The Current Framework

Generally, legal obligations for landowners who allow access to their land for recreational activities are provided for under the Act.

Firstly, so long as the activity is conducted in a workplace (more on that later), landowners have a primary duty of care to ensure that the health and safety of others is not put at risk from work carried out as part of the conduct of the business or undertaking. ¹

Secondly, landowners who manage or control a workplace must ensure, so far as is reasonably practicable, that the workplace, the means of entering and exiting the workplace, and anything arising from the workplace are without risk to the health and safety of any person. ²

There are two important exceptions to the Management and Control of Workplaces Duty:

Firstly, residential homeowners which is why you do not have to induct your builder before starting your home renovation), and farm owners where the risks arise away from the main part of farm structures, equipment, or buildings are exempted, and
Secondly, landowners’ obligations only apply to the extent that their business involves the management or control of workplace.

You would be forgiven for thinking that both duties described are doing the same thing. Helpfully the Courts explained the difference between the two. We will touch on that below.

So, I’m a landowner, what are my safety obligations?

Over the years our Courts have grappled with the questions “what is a workplace”, and “who has management and control of that workplace”.

The question is increasingly complex where there are multi layered workplaces, multiple parties, and varying degrees of control. The issue also comes up in the context of outdoor recreation activities, which commonly involve acceptance of a certain amount of risk, and arise in unique, and often atypical, workplaces.

Helpfully this has been clarified in Zespri case, and more recently in the Whakaari White Island prosecution.

Whakaari Management Ltd v WorkSafe New Zealand 

Background

Following the eruption of Whakaari (White Island) eruption in December 2019, WorkSafe charged Whakaari Management Limited (WML) under both the Duty to Other Persons and the Management and Control of Workplaces Duty.

In December 2019, Whakaari was owned by Whakaari Trustees Limited, which leased the island to WML. WML was responsible for managing the island. WML entered into license agreements with tour operators on the island, but did not itself operate any tours or engage in any activity on the island.

In the District Court, the charge under the Duty to Other Persons was dismissed but ultimately convicted WML under the Management and Control of Workplaces Duty charge. The High Court later overturned that decision, dismissing the Management and Control of Workplaces Duty charge also.

The District Court Decision

Despite having no trouble finding that Whakaari/White Island was a workplace, the fact that WML did not itself operate tours or engage in activity on the island, meant that WML did not have liability under the Other Person’s duty to the walking tour group.

The District Court dismissed a charge under that duty reasoning that it is about risks to other persons from WML’s own work, and as WML was not actively conducting work or had workers on the island, risks did not arise from WML’s own work activities.

However, the District Court found that WML did manage or control Whakaari/White Island. The District Court reasoned that to be captured by the Management and Control of Workplaces Duty, a PCBU must exercise active control or management of the workplace in a practical sense. This is a factual assessment that turns on the circumstances.

The District Court found that WML actively managed or controlled Whakaari for reasons including:

It remained involved with tour operators and stakeholders once license agreements were entered into,
Its license agreements suggested that WML was proactive in setting conditions around access to the island, and
It could terminate the license agreements for any breach which meant it had control over access to the island.

The High Court Decision

In February this year, the High Court overturned WML’s conviction. The High Court disagreed that WML ‘actively’ managed or control the workplace in a practical sense.

The High Court found that management and control of a workplace will fall on a continuum, at one end there is mere ownership, while at the other there is active control over the work carried out.

In considering the purpose of the Act, the High Court acknowledged that on the one hand, it would be inconsistent if a PCBU could avoid an obligation under the Management and Control of Workplaces Duty simply by neglecting to be actively involved in a workplace that is otherwise within its management or control, while on the other hand Parliament deliberately adopted the phrase “who manages or controls” to exclude PCBUs who merely have the ability to do so.

The High Court adopted three questions to determine whether a PCBU has an obligation under the Management and Control of Workplaces Duty:

What is the workplace?
What would it mean for a PCBU to have the power to actively manage or control the workplace?
Did the PCBU actually have that power?

The High Court found that in this case:

The workplace was the “walking tour workplace” on Whakaari,
To have the power would be to be able to control what happened at the workplace on a day-to-day basis, and
While WML had the power to grant access to the workplace, it did not have an ability to control what happened at the workplace in any active or practical sense, (such as what tours happened, when the tours happened, or how the tours happened), that ability was held by the tour operators.

For these reasons, the High Court found that WML did not have an obligation under the Management and Control of Workplaces Duty as it did not manage and control the “walking tour workplace”. That responsibility fell to the tour operators, who were also prosecuted and convicted.

The Effect of the Announced Changes

The announced changes are intended to clarify the law for landowners to make clear that they will not be responsible if someone is injured on their land while doing recreational activities, that liability would sit squarely with the recreational activity business.

The Minister provided the following example, “a farmer might worry they are responsible for the risks of a horse trekking business on their land. I am making it clear in the law that in this case the health and safety duties sit with the horse trekking business. The farmer would only need to consider the risks for their work where that work is happening in the immediate vicinity of the horse trekking. They are not responsible for risks of the recreational activity itself.”

A Bill has not yet been introduced to implement these proposed changes. Until we see the Bill it is difficult to assess whether the Minister’s objectives will be achieved. Practically, if implemented as proposed the changes might create certainty in some cases but create uncertainty in others. For example:

Will the exemption go too far to exclude responsibility despite the landowner actually being the best person to manage or control the risk (for example, in Cave Creek, where the Coroner found poorly a poorly maintained viewing platform was the cause of the tragedy), and
Where will the line be drawn? What happens when the landowner does have some influence on the adventure workplace.

Our Take

Clarity and certainty of law is to be promoted. Whether the proposed changes will meet that objective remains to be seen. Any change should not be at the expense of promoting safety by disincentivising those who are best placed to manage risk, which is one of the key purposes of our Health and Safety framework.

If you would like to discuss your obligations in more detail, we encourage you to get in touch with one of our experts.