New Zealand: Health and safety liability risks in earthquake-prone building regime

The new earthquake-prone building regime, in force since 1 July, carries potentially serious health and safety implications which property owners and employers need to be aware of.

These arise from the interface of the regime with the Health and Safety at Work Act. We outline the issues and look at their practical effect.

Key points

  • The new earthquake-prone regime applies to parts of buildings – variously referred to as "components", "building elements" and "secondary structural and non-structural elements" (SSNS).
  • A building can be assessed as earthquake-prone if any of these elements poses a significant life safety hazard.
  • Historically, compliance with the seismic design of SSNS has been limited and variable.
  • The new system has gaps which mean that non-compliance of existing SSNS may not be identified.
  • The WorkSafe Position Statement on enforcement may not provide employers and owners with the protection they think it does.
  • Employers and owners need to engage to ensure that they are each meeting their respective obligations under the HSWA in relation to SSNS or parts of buildings. To fail to do so is to risk prosecution.

The new system

The structure is shown in the figure below:

image

Chapman Tripp's earlier commentary on the new Act is available here.

Parts of buildings

Much of the commentary on the new system has focussed on the costs involved in upgrading the structure of buildings to meet the new standards, and who should bear those costs. But the extension to parts of buildings and the interface with the Health and Safety at Work Act 2015 (HSWA) has attracted relatively little attention – although they carry significant risk of liability.

The Guidelines:

  • define "part" of a building as an individual member or element or section of a building's structure (as distinct from the building structure as a whole), or a non-structural element
  • adopt the Building Act definition of "building element" – being any structural or non-structural component and assembly incorporated into or associated with a building, such as fixtures, services, drains, permanent mechanical installations for access, glazing, partitions, ceilings and temporary supports
  • define SSNS as including pre-cast concrete panels, curtain wall framing systems, stairs and supports for significant building services items, and
  • specify the types of building elements and situations most likely to pose a significant life safety hazard (an unavoidable danger to which a number of people are exposed) and therefore need to be included in engineering assessments.

The %NBS rating for a building as a whole now takes account of, and may be governed by, the scores for individual building elements. It represents the minimum of the earthquake scores assessed for the global performance of the primary structure for each principal direction and the earthquake score for each individual SSNS that meets the life safety criteria.

To influence a building rating, a part, element or SSNS must be of sufficient size and located such that their failure would lead to a significant life safety hazard. This will typically relate to their ability to continue to support gravity loads (including their own weight).

WorkSafe's position

Under the old system, there was overlap between the requirements of the earthquake-prone building legislation and the obligations owed under health and safety legislation. In response to this, WorkSafe issued a Position Statement. This is not binding on WorkSafe but lays out its intended enforcement approach.

WorkSafe states that it will not take health and safety action against you in relation to the earthquake resilience of your building because this is covered by the Building Act and enforcement is the responsibility of your local council.
But it then goes on to say that if, after an earthquake-related serious harm incident, it becomes clear that you failed to comply with the Building Act, you could face enforcement action under the HSWA for failing to take all practicable steps to ensure the safety of employees and other people in or near the building.

We take this to refer to a situation where earthquake strengthening has not been carried out within the timeframes required under the Building Act. It would be good if WorkSafe clarified this point.

WorkSafe also draws a distinction between hazards covered by the Building Act and hazards attached to building components or other chattels, fixtures, fittings and equipment in or around a building. WorkSafe expects you to identify and manage these hazards so far as is reasonably practicable, as you would any other workplace hazard.
Failure to do so is a breach of the HSWA:

Regardless of whether you're a building occupier or a building owner, you need to take practicable steps to identify and manage any parts of buildings which could cause serious harm to occupants in case of an earthquake, and to take practicable steps to eliminate them; or if that's not practicable, to isolate them from people; or if that's not practicable to minimise the hazard.
Owners and employers need to continually analyse any risks in respect of each building they own or occupy to determine what practicable steps can be taken to manage hazards. What is practicable in any given case will depend on the circumstances. However, in undertaking such analyses, you will need to consider matters such as the extent of the risk; the nature, severity and probability of any injury or harm that may occur; the practicality of eliminating, isolating, or minimising the hazard; and the availability and cost of safeguards. If you're an employer and you have a concern about a building component which you cannot deal with, you will need to involve the building owner. If you're a building owner and a problem has been raised about a building component, then you will need to take all reasonably practicable steps to manage the hazard.

WorkSafe defines building components as things attached to the building which could be, but are not necessarily part of, the structural integrity of the building. It cites as examples ceilings, verandas, or glass which could fall out and break. We question whether this distinction is still applicable given these components now come within the new regime.

It may reflect the fact that WorkSafe has yet to update its Position Statement to accommodate the broader ambit of the new earthquake prone building regime. We understand that it is due for review in November.

Gaps in the new system which create H&S liability risk

Responsibility for identifying potentially earthquake-prone buildings sits with the territorial authorities (TAs). But:

  • the identification methodology they use is almost exclusively directed at the primary structure
  • only if the building falls within one of the three "profile categories" – unreinforced masonry buildings, pre-1976 buildings above three storeys or 12 metres in height and pre-1935 buildings – will an ISA or DSA be required, and only then will SSNS be considered (except if there is significant original unreinforced masonry), and
  • buildings which have previously been assessed as over 34% NBS may not be reassessed, meaning that existing SSNS risks may not be uncovered, because assessment of SSNS was not required under the old engineering methodology.

Why you should be concerned

This issue is potentially significant, because it is now recognised that there has been a limited and variable degree of compliance with standards for building services.

These were generally designed after the primary structure, often during the construction phase, and with little consideration for how the building in which they were installed could influence their behaviour during an earthquake. Many existing SSNS elements were proprietary systems and their design and construction were unlikely to have been overseen by a structural engineer.

While this issue was evident following the Christchurch earthquakes, it has only recently started to receive wider public attention. Although few fatalities were solely attributed to SSNS failures in non-residential buildings during the Christchurch earthquakes, they were responsible for the majority of injuries caused directly by earthquake damage.
The Guidelines state that engineering assessments should always assume non-compliance with the relevant standards until proven otherwise.

It remains to be seen if WorkSafe will continue to draw a distinction between the primary structure and other parts of buildings. If they do, it would be a policy shift from the position taken under the new regime. In the meantime, owners and employers need to take care in how they interpret and rely on the WorkSafe Position Statement in relation to parts of buildings.

What you should be thinking about

Owners and employers need to engage to ensure that they are both meeting their respective health and safety obligations in relation to SSNS or risk prosecution under the HSWA if someone is seriously harmed following an earthquake.

In practice, we can see that there will be many situations where it will be difficult to determine who carried out the works, and who is responsible to carry out an assessment or seismic upgrade.

In such cases building owners and occupiers may have to share responsibility. Both may be subject to a HSWA duty regardless of who carried out the works.

The information in this article is for informative purposes only and should not be relied on as legal advice. Please contact Chapman Tripp for advice tailored to your situation.

To print this article, all you need is to be registered on Mondaq.com.

Click to Login as an existing user or Register so you can print this article.

Authors
Similar Articles
Relevancy Powered by MondaqAI
Wynn Williams Lawyers
 
Some comments from our readers…
“The articles are extremely timely and highly applicable”
“I often find critical information not available elsewhere”
“As in-house counsel, Mondaq’s service is of great value”

Related Topics
 
Similar Articles
Relevancy Powered by MondaqAI
Wynn Williams Lawyers
Related Articles
 
Up-coming Events Search
Tools
Print
Font Size:
Translation
Channels
Mondaq on Twitter
 
Register for Access and our Free Biweekly Alert for
This service is completely free. Access 250,000 archived articles from 100+ countries and get a personalised email twice a week covering developments (and yes, our lawyers like to think you’ve read our Disclaimer).
 
Email Address
Company Name
Password
Confirm Password
Position
Mondaq Topics -- Select your Interests
 Accounting
 Anti-trust
 Commercial
 Compliance
 Consumer
 Criminal
 Employment
 Energy
 Environment
 Family
 Finance
 Government
 Healthcare
 Immigration
 Insolvency
 Insurance
 International
 IP
 Law Performance
 Law Practice
 Litigation
 Media & IT
 Privacy
 Real Estate
 Strategy
 Tax
 Technology
 Transport
 Wealth Mgt
Regions
Africa
Asia
Asia Pacific
Australasia
Canada
Caribbean
Europe
European Union
Latin America
Middle East
U.K.
United States
Worldwide Updates
Registration (you must scroll down to set your data preferences)

Mondaq Ltd requires you to register and provide information that personally identifies you, including your content preferences, for three primary purposes (full details of Mondaq’s use of your personal data can be found in our Privacy and Cookies Notice):

  • To allow you to personalize the Mondaq websites you are visiting to show content ("Content") relevant to your interests.
  • To enable features such as password reminder, news alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our content providers ("Contributors") who contribute Content for free for your use.

Mondaq hopes that our registered users will support us in maintaining our free to view business model by consenting to our use of your personal data as described below.

Mondaq has a "free to view" business model. Our services are paid for by Contributors in exchange for Mondaq providing them with access to information about who accesses their content. Once personal data is transferred to our Contributors they become a data controller of this personal data. They use it to measure the response that their articles are receiving, as a form of market research. They may also use it to provide Mondaq users with information about their products and services.

Details of each Contributor to which your personal data will be transferred is clearly stated within the Content that you access. For full details of how this Contributor will use your personal data, you should review the Contributor’s own Privacy Notice.

Please indicate your preference below:

Yes, I am happy to support Mondaq in maintaining its free to view business model by agreeing to allow Mondaq to share my personal data with Contributors whose Content I access
No, I do not want Mondaq to share my personal data with Contributors

Also please let us know whether you are happy to receive communications promoting products and services offered by Mondaq:

Yes, I am happy to received promotional communications from Mondaq
No, please do not send me promotional communications from Mondaq
Terms & Conditions

Mondaq.com (the Website) is owned and managed by Mondaq Ltd (Mondaq). Mondaq grants you a non-exclusive, revocable licence to access the Website and associated services, such as the Mondaq News Alerts (Services), subject to and in consideration of your compliance with the following terms and conditions of use (Terms). Your use of the Website and/or Services constitutes your agreement to the Terms. Mondaq may terminate your use of the Website and Services if you are in breach of these Terms or if Mondaq decides to terminate the licence granted hereunder for any reason whatsoever.

Use of www.mondaq.com

To Use Mondaq.com you must be: eighteen (18) years old or over; legally capable of entering into binding contracts; and not in any way prohibited by the applicable law to enter into these Terms in the jurisdiction which you are currently located.

You may use the Website as an unregistered user, however, you are required to register as a user if you wish to read the full text of the Content or to receive the Services.

You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these Terms or with the prior written consent of Mondaq. You may not use electronic or other means to extract details or information from the Content. Nor shall you extract information about users or Contributors in order to offer them any services or products.

In your use of the Website and/or Services you shall: comply with all applicable laws, regulations, directives and legislations which apply to your Use of the Website and/or Services in whatever country you are physically located including without limitation any and all consumer law, export control laws and regulations; provide to us true, correct and accurate information and promptly inform us in the event that any information that you have provided to us changes or becomes inaccurate; notify Mondaq immediately of any circumstances where you have reason to believe that any Intellectual Property Rights or any other rights of any third party may have been infringed; co-operate with reasonable security or other checks or requests for information made by Mondaq from time to time; and at all times be fully liable for the breach of any of these Terms by a third party using your login details to access the Website and/or Services

however, you shall not: do anything likely to impair, interfere with or damage or cause harm or distress to any persons, or the network; do anything that will infringe any Intellectual Property Rights or other rights of Mondaq or any third party; or use the Website, Services and/or Content otherwise than in accordance with these Terms; use any trade marks or service marks of Mondaq or the Contributors, or do anything which may be seen to take unfair advantage of the reputation and goodwill of Mondaq or the Contributors, or the Website, Services and/or Content.

Mondaq reserves the right, in its sole discretion, to take any action that it deems necessary and appropriate in the event it considers that there is a breach or threatened breach of the Terms.

Mondaq’s Rights and Obligations

Unless otherwise expressly set out to the contrary, nothing in these Terms shall serve to transfer from Mondaq to you, any Intellectual Property Rights owned by and/or licensed to Mondaq and all rights, title and interest in and to such Intellectual Property Rights will remain exclusively with Mondaq and/or its licensors.

Mondaq shall use its reasonable endeavours to make the Website and Services available to you at all times, but we cannot guarantee an uninterrupted and fault free service.

Mondaq reserves the right to make changes to the services and/or the Website or part thereof, from time to time, and we may add, remove, modify and/or vary any elements of features and functionalities of the Website or the services.

Mondaq also reserves the right from time to time to monitor your Use of the Website and/or services.

Disclaimer

The Content is general information only. It is not intended to constitute legal advice or seek to be the complete and comprehensive statement of the law, nor is it intended to address your specific requirements or provide advice on which reliance should be placed. Mondaq and/or its Contributors and other suppliers make no representations about the suitability of the information contained in the Content for any purpose. All Content provided "as is" without warranty of any kind. Mondaq and/or its Contributors and other suppliers hereby exclude and disclaim all representations, warranties or guarantees with regard to the Content, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. To the maximum extent permitted by law, Mondaq expressly excludes all representations, warranties, obligations, and liabilities arising out of or in connection with all Content. In no event shall Mondaq and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use of the Content or performance of Mondaq’s Services.

General

Mondaq may alter or amend these Terms by amending them on the Website. By continuing to Use the Services and/or the Website after such amendment, you will be deemed to have accepted any amendment to these Terms.

These Terms shall be governed by and construed in accordance with the laws of England and Wales and you irrevocably submit to the exclusive jurisdiction of the courts of England and Wales to settle any dispute which may arise out of or in connection with these Terms. If you live outside the United Kingdom, English law shall apply only to the extent that English law shall not deprive you of any legal protection accorded in accordance with the law of the place where you are habitually resident ("Local Law"). In the event English law deprives you of any legal protection which is accorded to you under Local Law, then these terms shall be governed by Local Law and any dispute or claim arising out of or in connection with these Terms shall be subject to the non-exclusive jurisdiction of the courts where you are habitually resident.

You may print and keep a copy of these Terms, which form the entire agreement between you and Mondaq and supersede any other communications or advertising in respect of the Service and/or the Website.

No delay in exercising or non-exercise by you and/or Mondaq of any of its rights under or in connection with these Terms shall operate as a waiver or release of each of your or Mondaq’s right. Rather, any such waiver or release must be specifically granted in writing signed by the party granting it.

If any part of these Terms is held unenforceable, that part shall be enforced to the maximum extent permissible so as to give effect to the intent of the parties, and the Terms shall continue in full force and effect.

Mondaq shall not incur any liability to you on account of any loss or damage resulting from any delay or failure to perform all or any part of these Terms if such delay or failure is caused, in whole or in part, by events, occurrences, or causes beyond the control of Mondaq. Such events, occurrences or causes will include, without limitation, acts of God, strikes, lockouts, server and network failure, riots, acts of war, earthquakes, fire and explosions.

By clicking Register you state you have read and agree to our Terms and Conditions