NZ: Health and Safety Update – July 2019
A recent District Court decision reaffirms the need for different companies to consult, co-operate, and co-ordinate when working on the same site. Phil Stirling Building Limited (PSBL) and Duncan Engineering Limited (DEL) were recently found guilty of charges under ss 34, 36 and 48 of the Health and Safety at Work Act 2015 (HSWA).
According to reports, workers from PSBL were installing roofing beams. A beam fell on two DEL workers, causing serious injury. The staff from PSBL and DEL had failed to inform one another of the risks from their work or to work together to ensure a safe site.
WorkSafe reports that PSBL was fined $150,000 (reduced for financial reasons) and ordered to make reparation of $6,000, and DEL was fined $191,250 and ordered to make reparation of $4,000.
Shared sites can present significant risks. Section 34 of HSWA expressly requires a person conducting a business or undertaking (PCBUs) with duties in relation to the same activities/place to “consult, co-operate with, and co-ordinate activities” with each other, to manage those risks. Failing to do so is itself a breach of the HSWA even if the site is otherwise safe.
A recent English decision emphasises the importance of managing food allergies and other hazards to health, and serves as a reminder that obligations may extend beyond the HSWA.
In England in late 2018, two people were convicted of manslaughter and Health and Safety offences for failing to manage the presence of peanuts in takeaway meals. Ms Lee, the victim, had ordered a meal online and noted allergies to “nuts, prawns”. Her meal contained peanut protein. She had a severe reaction which caused her death two days later.
The two men charged were the restaurant manager and the chef who was also the director of the company that owned the restaurant. In Kuddus v R  EWCA Crim 837, the Court of Appeal allowed the chef’s appeal against his manslaughter conviction but reaffirmed the significant obligations upon restaurateurs and those in the food preparation business. The Health and Safety offences resulted in significantly shorter sentences than the manslaughter conviction (eg 5 months’ and 3 months’ imprisonment as opposed to 2 years’ imprisonment).
The restaurant manager did not appeal his convictions. Experts reviewed the systems in place at the restaurant and found that proper systems were not implemented. There was no written procedure in relation to food allergens and staff demonstrated a limited understanding of allergen control. Not only was the restaurant manager in charge of the control systems but he also received the victim’s allergy note and did not ensure that it was passed on to the chef.
Chef and director
The chef (and director) succeeded in overturning his manslaughter conviction (but did not appeal the Health and Safety convictions). The manslaughter appeal succeeded because he was not notified of the victim’s allergy and, although he shared responsibility with the manager for the systems in force, he barely spoke any English and had only recently taken over the business.
What does it all mean?
The Court gave a strong message that in future courts will “rigorously scrutinise the way restaurants discharge the duty of care that they owe to customers with allergies”. If this message is received in New Zealand, prosecutions might be brought against individuals in the food industry either under our Health and Safety laws, or the wider criminal law.
Such prosecutions would not be unprecedented here. In R v Turner (1995) 13 CRNZ 142, the managing director and the general manager of a mussel processing facility were both found guilty of criminal nuisance by failing to ensure the mussels they processed were not contaminated with listeria.
Compounding the risk profile for the food industry was the fact that the victim in Kuddus and her doctors considered her allergies were mild. She had not even been prescribed an epi-pen.
Food preparation businesses face regulatory control but the general criminal law also plays a role, and may impose significantly more serious penalties. This case demonstrates the need for restaurant owners, managers and chefs to be certain of their processes and systems.