The Zespri Case

Worksafe NZ v Athenberry Holdings Ltd and Hume Pack n Cool Limited.

This is a reserved Judgement and penalties appear not to have been set.

Zespri contracts Agfirst to independently check kiwifruit orchards leading up to harvest. Hume Pack-n-Cool Limited Packhouse is required to comply with the Zespri requirements for quality management and control. The Orchard was owned by Athenberry Holdings Ltd.

The employee of Agfirst a quad bike to travel around an orchard while conducting independent kiwifruit testing. A requirement of Zepri to determine fruit quality and the time to picking.

The quad bike rolled on a hill causing fatal injuries to the employee of Agfirst. The employee was at the time of the accident outside the expected or designated work area.

The employee was considered to be an experienced rider having had 500 hours on a quad bike prior to her death.

Worksafe in the District Court in Tauranga brought a prosecution against a number of companies under the Health and Safety at Work Act 2015.

Worksafe charged:
1. Orchard owner
2. Victim’s employer
3. The Packhouse that requested samples
4. Zespri as the industry body.

This it should be noted was the first defended hearing under the Act .

Zespri gave an enforceable undertaking and was not proceeded against. An Enforceable Undertaking is an option under the Act to mitigate legal action.

The victim’s employer, Agfirst, pleaded guilty.

The question the Court asked in respect of the remaining charges was it practicable to provide a map of hazards and ensure risks for work taking samples were identified and controlled.

The Court said that :
1. What is reasonably foreseeable or reasonably practicable involves an assessment of proportionality and rationality.
2. Reasonableness between parties (PCBU’s) requires a nuanced and flexible approach.

It should be noted that the Act protects parties (PCBU’s) if they have a limited ability to influence or direct a matter or arrangements in place.

Influence or direction involves:
1. Control over the practical carrying out of the work
2. Provision of advice
3. Reporting requirements
4. Oversight or supervision
5. Specification of matters affecting the conduct or methods of work.

What is also important is the Court said:
1. The identification of hazards by the orchard owner did not need to go beyond the expected work areas.
2. The orchard owner could expect the tester to be competent in own tools and to recognize obvious visual hazards.
3. The legislature cannot have intended farm or orchardists to identify farm or orchard features which can only become a hazard in the circumstances of contractor incompetence, carelessness or non compliance with instructions in the operation of the contractor’s vehicles or machinery.

In a reserved Judgment made on 29 June 2018 the Orchard owner and the Packhouse were not held to be liable.

No reparations or fines it appears have been made in this case as there is an appeal before the High Court in another case and it is presumed that the District Court is awaiting this outcome and decision to give guidance in this case how to proceed further in this case.

It is not known if any appeals to this decision have been filed, particularly by Worksafe.

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James Findlay

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