By way of background:
- Prior to the Abbey Caves trip on 9 May 2023, the school completed a risk assessment which stated that Abbey Caves was prone to flooding in heavy rain and that the trip should be postponed if the water levels were too high.
- At the time of the trip, Northland was under a MetService “orange warning” for heavy rain.
- Notwithstanding the “orange warning”, the school trip went ahead and Abbey Caves flooded. Fourteen students and two adults were rescued from Abbey Caves and one student died.
WorkSafe has charged WBHS BOT for failing to comply with section 36 of the HSW Act and with an offence under section 48 of the HSW Act:
- section 36 sets out what is described as the PCBU’s primary duty of care; and
- section 48 provides that it is an offence to fail to comply with a duty that exposes an individual to risk of death or serious injury or serious illness.
A conviction for the BOT would carry a maximum fine of NZ$1,500,000.
The charges were brought against WBHS BOT as an entity, rather than against any individual members of the BOT. It would not have been possible for WorkSafe to bring charges against any individual members of the BOT as section 52 of the HSW Act provides that members of a school board appointed or elected under the Education and Training Act 2020 do not commit an offence under sections 47, 48, or 49 of the HSW Act for failure to comply with their due diligence obligations under section 44 HSW Act. A summary of officer due diligence obligations was addressed in our recent article regarding prosecution of a former chief executive here.
This is not the first time a school BOT has faced charges brought by WorkSafe for offences under the HSW Act. For example:
- In 2020, Tauraroa Area School BOT was prosecuted for its failings during a school kayaking trip when two students were caught in a sea cave and nearly drowned. In 2022, the BOT pleaded guilty to charges under sections 36(2) and 48 of the HSW Act for failing in its duty to ensure, so far as is reasonably practicable, that the health and safety of persons, including two students, was not put at risk by an outside school excursion by boat to the Poor Knight Island Marine Reserve. The BOT was sentenced in the Whangārei District Court and ordered to pay an undisclosed sum in reparation for both victims, and prosecution costs of NZ$2,526.1
- In 2019, Forest View High School BOT pleaded guilty to two charges under section 48 of the HSW Act for failing to ensure, so far as is reasonably practicable, that the health and safety of persons was not put at risk from work carried out as part of the undertaking of the school. In this case the school was using a mobile scaffold in the performing arts area to service the lights that illuminated the stage. The mobile scaffold toppled over, causing two people (one staff member and one student) to fall off and suffer serious injuries. The BOT was therefore charged under section 48 of the HSW Act for failing to comply with a duty that exposed individuals to a risk of serious injury or death.
The BOT was sentenced in the Tokoroa District Court and ordered to pay reparation to the two victims and the student victim’s mother totalling NZ$100,000; and prosecution costs of NZ$7,592. The District Court also made an order under section 155 of the HSW Act requiring the BOT to undertake a specific project for the general improvement of work health and safety.2
A “notional” fine was also assessed at NZ$281,000 (although the BOT was not required to pay this). Judge Hollister-Jones was clear that had the defendant (i.e., the BOT) been in the business of construction or contracting, he would have had “no hesitation in placing its culpability in the high band”. However, the Judge considered that “the Court [had] to be realistic about the defendant’s circumstances; an elected Board of Trustees in a decile 2 community. The Board of Trustees is charged with governance of a secondary school, the central focus of which is to provide education”.
These cases, and others where WorkSafe has accepted enforceable undertakings from a school BOT (as was the case with Melville High School following a drowning at Waihi), highlight the importance of school BOTs, considering how to meet their obligations under the HSW Act, including when students are attending out of school activities. They also serve as a good reminder that the application of the HSW Act, which has as its main purpose securing the health and safety of workers and workplaces, extends beyond commercial businesses and undertakings.
If you have any questions about the matters raised in this article, please get in touch with the contacts listed or your usual Bell Gully adviser.
[1] WorkSafe New Zealand v Tauraroa Area School Board of Trustees [2022] NZDC 25331
[2] WorkSafe New Zealand v Forest View High School Board of Trustees [2019] NZDC 21558