Health and Safety Alert | MSD shooting decision

The District Court has today released its judgment in relation to Worksafe’s prosecution of the Ministry of Social Development for health and safety offences relating to the fatal shooting at the Ashburton Work and Income office on 1 September 2014. Although the Ministry of Social Development had earlier pleaded guilty to one charge of failing to take all practicable steps to ensure the safety of employees under the Health and Safety in Employment Act 1992, it disputed that it was required to ensure there was a physical barrier to clients accessing the staff working areas.

In her decision, Chief Judge Jan-Marie Doogue decided that before 1 September 2014 client-initiated violence against Work and Income employees was a reasonably predicable hazard. It was predictable that such violence might include the use of a weapon such as a knife. However, it was not reasonably predicable that Mr Tully or any other person would carry out an attack with a firearm.

The Chief Judge was satisfied beyond reasonable doubt that the implementation of a physical barrier to delay violent clients was a reasonably practicable step open to the Ministry at the time of the incident to reduce the risk of violent attack against employees. One example of a physical barrier would have been a secure desk between the client and employee, which would delay a client reaching over or around the desk and give the employee time to use a rapid escape route.

The Chief Judge noted that the fact that a physical barrier would not have prevented the harm of 1 September 2014 is not to be taken into account at this stage, but may be relevant during sentencing.

Although this case was decided under the Health and Safety in Employment Act 1992, similar reasoning is likely to apply under the Health and Safety at Work Act 2015.

This decision is likely to have a large impact on organisations with public facing staff. The Ministry of Social Development has estimated that it could cost between $13 million and $27 million to upgrade its offices to ensure that appropriate barriers are in place. However, the Chief Judge did not think that this cost was disproportionate to the potential harm and risk involved.

A copy of the full decision can be found here.