Look out for strangers

By - , Build 150

The High Court ruled that the person controlling a workplace must take all practicable steps to protect those on site, as well as strangers in the vicinity, from harm.

IN OCTOBER 2014, the High Court considered the meaning of a ‘place of work’.

Visitor to vicinity injured

A roofing company, Alliance Roof Solutions Limited, was convicted in the District Court for an offence under the Health and Safety in Employment Act 1992. A visitor to the driveway of a block of residential units was struck on the head by roofing material thrown from above directly onto the driveway below.

Alliance appealed its conviction. The issue in the appeal was whether or not the driveway was a place of work.

In the District Court, the judge had found the driveway was a place of work. They also found that Alliance owed a duty to ensure that someone in the vicinity could not enter that place of work and be harmed.

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Liability to strangers

The High Court disagreed with the District Court’s interpretation of section 16 of the Health and Safety in Employment Act although not the outcome of the case.

A 1998 amendment to the Act had intended to limit a persons’ liability to persons who entered into a place of work who were neither employees nor contractors of that person, in other words, liability to strangers.

This 1998 amendment was introduced after widespread publicity about the unfairness of a farmer being prosecuted for a beekeeper voluntarily entering his property and dying when a farm bridge collapsed.

The High Court agreed that, if the driveway was a place of work, the victim was a stranger who was not one of the categories of persons Alliance owed duties to in that place of work.

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Defining the place of work

Justice Ellis found that the driveway was not a place of work. However, Alliance was liable for the harm suffered under a different subsection of the Act, section 16(1)(a) – responsibility for persons in the vicinity of the place of work.

Justice Ellis considered that a place of work could only be a place where a reasonable person would appreciate that work was being undertaken.

In this case, because there was no clear signage to warn that work was being done on the roof implicating the driveway in that work, it was not a place of work. The driveway was still serving its function as a driveway. Alliance was unable to avoid liability by relying on the statutory amendments to limit protections to certain classes of persons at a place of work.

Alliance also tried to argue that it was not in control of the place of work at the time of the accident because it was a contractor who was carrying out the work. The High Court rejected this argument.

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Responsibility to protect

Alliance had the contract with the owners to perform the works, and that contract had expressly required it to take certain steps to prevent harm. It was its responsibility to ensure that adequate systems were in place to protect both workers and members of the public from hazards associated with the job. The Court considered that the fact Alliance paid its contractor $100 to look after health and safety matters was no indication it had subcontracted its own responsibilities.

Alliance’s appeal was, therefore, unsuccessful.

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Important reminder

The case serves as an important reminder of the need to consider health and safety obligations not just at a building site itself but also around the vicinity of the site.

In this case, warning signage and roping were viewed as minimum practicable steps that Alliance ought to have taken. A person spotting the driveway and bin into which rubbish was being thrown below were also other reasonably practicable steps Alliance could have taken to prevent harm.

For contractors who subcontract works, it is important to ensure that subcontractors meet their health and safety obligations.

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Note

This article is not intended as legal advice. For further information, please contact the Harkness Henry Building and Construction team on (07) 838 2399 or email [email protected]

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