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Health and Safety Update: Worksafe New Zealand v Ministry of Social Development

Home Insights Health and Safety Update: Worksafe New Zealand v Ministry of Social Development

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Contributed by: Malcolm Crotty, Adrian Olney, Kylie Dunn, and Mark Campbell

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Published on: September 14, 2016

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The District Court has released its decision in the health and safety prosecution of the Ministry of Social Development following the double-homicide at a WINZ office in Ashburton in 2014.

MSD had already pleaded guilty and accepted that it could have taken five practicable steps. However, it argued that a sixth step, “ensuring there was no physically unrestricted access by clients to the staff working area”, was not reasonably practicable. The Court agreed that “controlled access barriers” to WINZ working areas were not reasonably practicable, and even risked increasing or displacing violence. However, it held that it would have been practicable to implement a ‘zoning’ office design to increase the difficulty of assaulting staff, eg through fixed desks and partitions, to allow staff time to retreat to a secure zone.  

The cost of implementing zoning nationwide was predicted to be between $13.1 million and $27.3 million, which was not considered disproportionate to the potential harm in the context of MSD’s operational budget.

It is important to note that:

  • The Court emphasised that the question of whether the harm was predictable was an objective question, and does not depend on what the organisation actually knew.
  • The Court did not find that the measures being debated would have prevented the murders of the two staff members. The Court was ‘unpersuaded’ that a physical barrier would have prevented or minimised the harm. However, as noted in a previous update, a step may be necessary even if it would not have prevented the harm that actually eventuated.
  • Acts of gun violence were found not to have been reasonably predictable by MSD before the incident. However, the Court was satisfied that client-initiated violence with a weapon other than a firearm was reasonably predictable at that time. The Court noted that there had never been an incident of gun violence at a government service delivery site in New Zealand, but assaults with other weapons had occurred and were predictable. The Court did not address the question of whether gun violence is now more ‘predictable’ and should be given greater emphasis than was required prior to this incident.

Other organisations that deal with the public will no doubt be interested in the Court’s assessment of security measures necessary to address client-initiated violence. If there is a real risk of such violence, an organisation must take practicable steps to address that. Such an assessment is highly contextual and will depend on the nature of the work being undertaken and the experience of similar organisations. The Court considered that:

In respect of national organisations where client-initiated violence is identified as a reasonably predictable hazard, it is important that it be considered on a nationwide basis and, where appropriate, with reference to international trends and patterns. This nationwide underlying risk may then be considered together with local and temporal variations.

Although decided under the old Health and Safety legislation, the decision applies settled principles and will remain relevant under the current Act. It provides a helpful starting point for organisations that need to consider the risk posed by members of the public.

 


This publication is intended only to provide a summary of the subject covered. It does not purport to be comprehensive or to provide legal advice. No person should act in reliance on any statement contained in this publication without first obtaining specific professional advice.

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