Property problems: Site owner must take responsibility for safety measures

Q: My company is developing an apartment building on a piece of land it owns in a suburban area in Auckland. Until it is finished, the construction company is in charge of the site and I have not been on site since early into the construction. Someone recently commented that we must have had to implement lots of safety measures because the site is in such a busy area. Surely this is the responsibility of the construction company?

A: The short answer is that it is your company's responsibility and you should quickly investigate the safety measures in place on the site to make sure that they are adequate, and that your company is fulfilling its obligations in terms of safety.

Your company's obligations in respect of safety on the construction site arise under the Health and Safety in Employment Act 1992 (HSE Act).

The HSE Act places separate duties on various parties involved with a "place of work", including the owner of the site, any contractors such as the construction company, and the employees actually working on the site.

The construction company will have its own obligations under the HSE Act to take all practicable steps to avoid harm to people in the vicinity, as well as to its own employees and subcontractors.

But no matter what the construction company's obligations are under the HSE Act, your company has separate obligations because your company is the owner of the place of work (the construction site).

The fact the construction company may have the same or similar duties is irrelevant - the HSE Act expressly provides that it may place the same duties on more than one person, and your company's duties are not lessened in any way by the fact that the construction company also has duties.

As the owner, your company may have a duty under the HSE Act to take all practicable steps to ensure that people in the place of work, and people in the vicinity of the place of work, are not harmed by any hazard that is or arises in the place of work. Whether your company has this duty will depend on the nature of the construction and whether the construction company has full and complete control of the place of work.

Regardless however, as a "Principal" (the party who has engaged the construction company) your company will have a duty to take all practicable steps to ensure that no employee is harmed while doing any work your company engaged the construction company to do.

If your company's duties extend to people in the vicinity of the construction site, this would include, for example, pedestrians on the street outside, and ensuring that steps are taken to avoid hazards such as objects falling from the construction site, holes or broken footpaths causing falls, excessive noise on the site etc.

The duty may extend to ensuring the site is adequately fenced and secured, and adequate signage and warning notices will need to be in place. These are examples only, and the specific obligations your company has will depend on the construction site and its potential hazards.

Because your company also owes duties to the employees of the construction company your company has engaged, you also need to ensure that the construction company has adequate safety measures in place to protect its workers from hazards and harm.

These are just summaries of some of the duties in the HSE Act which are extensive, including on your company as owner of the site and Principal. You should seek advice if you are unsure of your company's obligations.

The Department of Labour also publishes detailed material that advises your obligations under the HSE Act.