, Partner, Kensington Swan

The Health and Safety at Work Act 2015 has now come into force. This, and the increased profile of health and safety issues in the last 3 years, has caused a great deal of anxiety for companies about the business risks of health and safety incidents. In some sectors, a good health and safety record is increasingly important in tendering situations, and businesses that have been prosecuted are increasingly pleading not guilty or seeking discharges without conviction for fear of the impact on their ability to win work.

Convictions are also potentially relevant to legal liability. Traditionally, convictions are generally only relevant to sentence, but the Evidence Act allows the introduction of a previous conviction as evidence of a defendant's propensity to act in a particular way. Where such a conviction is admitted as evidence, the Court can take it into account in deciding whether a defendant is guilty of the offence with which the defendant has actually been charged.

WorkSafe New Zealand has recently sought to make use of that avenue in a health and safety case, believed to be the first of its kind in New Zealand. It is anticipated that this will increasingly be utilised as more companies are prosecuted and the number of health and safety convictions accumulates.

Are these developments likely to drive better health and safety outcomes, or simply more not guilty pleas and expensive trials, at the behest of companies seeking to avoid health and safety convictions?

This paper will explore these issues.