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In May 2016, a kiwifruit maturity sampler employed by AgFirst Bay of Plenty Limited (‘AgFirst’) was killed at Athenberry Holdings Limited’s (‘Athenberry’) kiwifruit and avocado orchard near Katikati, when her quad bike rolled on uneven terrain.

WorkSafe New Zealand (‘WorkSafe’) charged Athenberry, AgFirst, Hume Pack-n-Cool Limited (‘Hume’), and Zespri Group Limited (‘Zespri’) with offences under the Health and Safety at Work Act 2015 (‘HSWA’). AgFirst pleaded guilty, and Zespri entered into an enforceable undertaking with WorkSafe. Athenberry and Hume each pleaded not guilty to the charges against them, resulting in the first defended hearing under the HSWA.

After a seven day trial, both defendants were acquitted. The decision has wide implications beyond just the agriculture and horticulture sectors.

The accident and charges

The accident occurred when the victim attempted to drive her quad bike over an area of steep, hazardous terrain obscured by unmown grass. AgFirst had trained her to drive only on mown grass and access tracks, and no one knows why she travelled away into an unmown area.

WorkSafe alleged Athenberry and Hume breached section 36(1)(b) of the HWSA by failing to ensure, so far as was reasonably practicable, the health and safety of a worker whose activities in carrying out work were influenced or directed by Athenberry and Hume, while the worker was carrying out the work.

Athenberry was also charged under section 37(1) of the HSWA on the basis it controlled a workplace but failed to ensure (so far as was reasonably practicable) that the workplace was without risks to the health and safety of workers.

The kiwifruit industry

Zespri manages almost all of New Zealand’s kiwifruit industry, with some two and a half thousand orchardists providing kiwifruit to Zespri, which then markets and on sells them in New Zealand and around the world. Zespri oversees and directs the operation of all of the businesses involved in the supply of kiwifruit, including both orchardists and packing facilities (known as packhouses).

Zespri established a sampling system, and engaged AgFirst to ensure sampling quality for fruit independently of kiwifruit growers. Under this system, orchardists would ask packhouses to test the maturity of their kiwifruit, and the packhouses would ask AgFirst to arrange it. As part of this, AgFirst would provide the individual sampler. Athenberry provided a map of the orchard to Hume, which it passed on to AgFirst. Despite AgFirst’s requirement that maps identify hazards, Athenberry’s maps provided only limited detail, with no hazards marked. Despite this, the maps were not rejected and no further details were sought. The tester did not interact with Athenberry when visiting the Orchard, so Athenberry did not share any further information with her.

To ensure independence, samplers commenced work at the orchard at their own discretion, without notice to, or personal contact with, Athenberry.

To what extent do PCBUs have concurrent duties?

Section 33(1) of the HSWA states that more than one person can have the same duty at the same time. WorkSafe alleged this meant Athenberry needed to oversee the work of samplers, and could not rely on AgFirst’s training of its samplers to stay in the approved areas of the orchard, or expect that the samplers would always comply with this training.

The Court disagreed, and held that overlapping duties are limited to the extent to which each PCBU has the ability to influence and control the matter (applying section 33(3)(b)). It also decided Athenberry did not have the ability to influence or control AgFirst’s sampler. The administration of the kiwifruit industry was dictated by Zespri, and the requirement of independence for AgFirst’s sampling meant Athenberry’s health and safety duties were subject to Zespri’s industry arrangement. The arrangement did not require Athenberry to notify samplers of, or ameliorate, hazards in unmown areas. Samplers were to make their own assessment of the orchard, and were trained to avoid hazardous areas.

What other reasonably practicable steps were open to Athenberry?

WorkSafe alleged that Athenberry could also have asked a competent person to assess and identify all potential hazards that AgFirst samplers may encounter, including quad bike rollover on steep or uneven terrain, and ensure that appropriate controls were implemented. These controls could include noting all potential hazards on the map provided to AgFirst, and ensuring that all AgFirst samplers were inducted on arrival at the orchard so they were aware of the potential hazards.

The Court ruled that this was not reasonably practicable. The map Athenberry prepared needed to identify all potential hazards and no-go areas, but only for areas which the sampler could reasonably be expected to go. Athenberry was not required to foresee that a sampler could stray off the mown grass when there was no reason to do so.

Was Athenberry in control of a workplace?

Section 37 of the HSWA imposes a specific duty on PCBUs who manage or control a workplace. These PCBUs 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 risks to the health and safety of any person. For farms, only the farm buildings, and locations where work is being carried out at any particular time, are considered to be workplaces. The question accordingly arose whether the workplace included the accident site, and whether Athenberry was liable under section 37.

Section 20 of the HSWA defines a workplace as including any place where a worker goes while at work. In this case, the accident site was well away from the kiwifruit blocks. No sampling could be undertaken there, and there was no access to any adjacent kiwifruit block. The Court decided that the accident site was not a workplace managed or controlled by Athenberry, so no issue of compliance with section 37 arose.

Hume’s liability

Separately, Hume was accused of failing to take two practicable steps. WorkSafe alleged Hume failed to design and implement an effective system to ensure the orchard maps it received from Athenberry recorded all potential hazards to the health and safety of AgFirst’s samplers. WorkSafe also allege Hume should have told AgFirst about other known potential hazards not identified on the maps.

The Court held that Hume was a simple conduit providing maps to AgFirst. The industry-wide system set up by Zespri created no expectation or requirement for Hume to engage in hazard identification for AgFirst’s samplers. Hume had no power to control or direct this process, or any AgFirst worker. Accordingly, the Court held section 33(3) absolved Hume of the need to assess Athenberry’s maps for hazard identification. The Court also found that it was AgFirst, not Hume, which had the expertise for such a task.

Although Hume could have communicated potential hazards that were not identified on maps to AgFirst, the Court held it was not reasonably practicable to do so. Given the way kiwifruit mature, there are strict time constraints on sampling and picking the fruit. Requests for an AgFirst sampler to visit an orchard could be made as late as 8:00pm the night before the sample date. The Court concluded the only way Hume could have communicated potential hazards not identified on maps to AgFirst would have been to ask Athenberry, who would have informed Hume that there were no hazards in the area the sampler was to work. It was impracticable for Hume to design and implement its own system of recording hazard information on sampling maps, and it had no other hazard information to pass on to AgFirst.

Lessons for the future

This case has provided useful insight into the interpretation of the new legislation.

Case law under the old Health and Safety in Employment Act 1992 had required employers to anticipate that employees might not comply with their instructions. The Court in Athenberry found it significant the victim was not Athenberry’s employee, but a “worker” over whom Athenberry had virtually no control. The Court held Athenberry could assume that the victim was both a sufficiently competent quad bike rider, and that she would follow her training and stick to the mown grass. The situation might have been different for an employee, and we recommend employers do not make these types of assumptions.

The Court also explored the concept of influence and direction over a worker, and held it would require control over the practical carrying out of the work, provision of advice, specification of matters affecting the conduct or methods of work, reporting requirements, oversight or supervision. The Court emphasised that this was not an exhaustive list. Any business engaging with others should consider the influence or control it might have, as it may mean unexpected health and safety duties apply, even for non-employees working at offsite locations.

This case emphasises that reasonable practicality is essential to understanding the health and safety duties placed on businesses. Individual businesses cannot be seen in isolation when they are part of a wider project or industry structure, and what may have been reasonably practicable cannot be overly influenced by hindsight.

Please let us know if you are unsure about what your business needs to do, as one of our health and safety experts will be happy to help you.



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