Abstract
Since the introduction of the Health and Safety at Work Act 2015 ("HSWA" or "the Act"), the New Zealand Courts have prosecuted both entities and individuals alike for workplace health and safety breaches. Whilst broad in its application, HSWA prosecutions have only encountered certain business vehicles in the context of breaches; with these largely being companies. The case of Worksafe New Zealand Mahi Haumaru Aotearoa v Rh & Jury Trust & Ors ("RH Trust") changed this landscape; questioning for the first time how a trust is to fit within the HSWA framework. Whilst RH Trust established a model through which liability can be determined, this presents a disconnect between the liability of trusts and companies under the HSWA. This dissertation proposes two models through which health and safety liability for a trust could be pursued, discussing the overlap (or lack thereof) each model has with company liability. Whilst this dissertation does not intend to establish what the law should be, it contends how each model both aligns with, and negates, certain legal principles found in trust law, company law, sentencing law, and health and safety law. Both consistency and clarity are needed in sentencing under the HSWA; ensuring that trusts are neither unjustly advantaged or disadvantaged by the way in which liability is determined. In highlighting the legal tensions which exist, this dissertation questions whether or not we should be satisfied with how the cards have landed in the Court, or if the liability framework should instead be revisited on appeal. As stated by Professor HAJ Ford, trading trusts represent a "commercial monstrosity", with health and safety liability no exception to the chaos they create.