New Zealand: Trade And Transport Bulletin - Prosecution Of Stevedore For Industrial Accident

Last Updated: 28 August 2008
Article by Neil Beadle

Liability under New Zealand health and safety legislation is strict but not absolute. The recent case of Department of Labour v Wallace Investments Limited (Unreported, District Court at Auckland, FWM McElrea J, 28 May 2008) demonstrates this fact. The case involves stevedores at Ports of Auckland. It illustrates the level of supervision and instruction required of employers to defend charges of failing to take 'all practicable steps' to ensure the safety of employees at work.


Wallace Investments Limited (Wallace Investments) operates a stevedore operation at the Ports of Auckland. In July 2007 while unloading containers from a ship, a Wallace Investments employee sustained severe injuries to his leg when he fell 2.6m from a shipping container.

The accident occurred when the employee was removing twist locks from the corners of a container. One twist lock could not be removed from the base of the container which had been landed on the wharf. The employee was lifted in a safety cage to the top of the container and stepped out onto the top. He successfully removed three of the locks on top but while attempting to remove the last lock the container tilted and the employee lost his balance and fell. The container tilted because of the combination of the shifting of weight by the employee, the twist lock remaining on the underside of the container, and the failure to otherwise stabilise the container.

Failure to take all practicable steps?

Wallace Investments was charged with an offence under section 6 of the Health and Safety in Employment Act 1992 (the Act) which says:

'Every employer shall take all practicable steps to ensure the safety of employees at work...'

To comply with the Act, employers must show they have identified hazards and provided the necessary safeguards, supervision, training and instruction to prevent their employees being harmed. Upon conviction an employer may be ordered to pay compensation to the employee and fined up to a maximum of $250,000.

The evidence in this case was that Mr Van Aalst, the sole director of Wallace Investments was particularly rigorous in implementing safety procedures which had been introduced to address the particular hazard in this case. The procedures had been introduced after the hazard had come to light following a similar accident six months earlier. The judge held that Wallace Investments had taken adequate steps to deal with the hazard including the fact notices advising employees of the hazard featuring photographs had been prominently displayed and adequate supervision was put in place at the site.

The judge appears to have been particularly taken with the practical nature of the safety briefing personally given by Mr Aalst before the incident. The briefing had involved a demonstration on how to use wooden wedges to secure containers prone to tilting if all twist locks could not be removed from the base of containers. There was also a demonstration on how to carefully kneel on the container to maintain balance. The judge was plainly impressed by Mr Aalst's personal commitment to the issue and the fact he had not merely relied upon written warnings or instructions to minimise the risk of harm.

The Health and Safety Inspector contended that Wallace Investments had not taken all reasonably practicable steps because the company had failed to ensure their employees were aware of and followed all the procedures.

His Honour Judge McElrea made it clear that in some circumstances it is not reasonable or possible for an employer to ensure that its employees are aware of and followed all procedures. His Honour stated at [58] of the judgment that:

' is not humanly possible for an employer to ensure (that is, make certain) that all employees do what they are told. It is not humanly possible unless there is supervision of every single person and perhaps even supervision of the supervisors. Business cannot operate in that way and it is not a reasonable step.'

His Honour said the phrase 'ensuring that employees follow procedures' is like asking employers to guarantee that there will be no accidents. He considered that the phrase by definition is an unreasonable request.


Although under the Act there is an obligation to do everything practicable to instruct staff properly and thoroughly, 'ensuring employees follow procedures' can be an impossible task.

The judge's acknowledgement in this case that there is a realistic limit to ensuring employees take all practicable steps is a welcome reminder that although the standard required of employers is high, it is not absolute. Diligent employers who take injury prevention seriously may still have a defence to charges in the event of accidental injury. This is all the more important given a perception that awards of reparation to victims of injury have steadily increased in recent years. It is also significant considering the Department of Labour's stated intent at raising the level of fines imposed by the courts to levels which better reflect the five-fold increase in the maximum fine introduced in 2003.

Phillips Fox has changed its name to DLA Phillips Fox because the firm entered into an exclusive alliance with DLA Piper, one of the largest legal services organisations in the world. We will retain our offices in every major commercial centre in Australia and New Zealand, with no operational change to your relationship with the firm. DLA Phillips Fox can now take your business one step further − by connecting you to a global network of legal experience, talent and knowledge.

This publication is intended as a first point of reference and should not be relied on as a substitute for professional advice. Specialist legal advice should always be sought in relation to any particular circumstances and no liability will be accepted for any losses incurred by those relying solely on this publication.

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

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

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
Related Articles
Up-coming Events Search
Font Size:
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
Confirm Password
Mondaq Topics -- Select your Interests
 Law Performance
 Law Practice
 Media & IT
 Real Estate
 Wealth Mgt
Asia Pacific
European Union
Latin America
Middle East
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 (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

To Use 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.


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.


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