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Brett Harris: Health & Safety committee convenor

20 Aug 2020

| Author: Zong-Pei Zhao

Brett Harris has taken up the reins as convenor of the ADLS Health and Safety Committee, replacing Fletcher Pilditch who was the committee’s inaugural convenor when it was established in 2015.

Brett Harris

This is part of a series of profiles on ADLS committee convenors.

Where do you work, what’s your role?

I am a barrister operating from my offices/chambers overlooking Auckland’s Britomart area.

Like most barristers, I take on a typical range of litigation, dispute resolution and some risk management/corporate advising but I am probably recognised for my work and about 20 years’ experience in workplace health and safety defence work, typically those accidents involving fatalities.

As at August 2020, I am briefed in 10 workplace fatality cases including the tragic events of Whakaari – White Island. I am typically instructed for the defence by insurers/in-house counsel.

Other areas of my regulatory practice include investigations and prosecutions relating to animal welfare, maritime, resource management, building and construction etc.

Where did you study?

At the University of Canterbury. I graduated with a BA (English literature with some Classics thrown in for good measure)/LLB.

What’s been your career to date?

I was admitted in 1995 and started work at an Auckland litigation firm, Holmden Horrocks. I took my OE in London in 1997 and courtesy of another Auckland lawyer (James Foley) I worked with a specialist (largely Kiwi) law firm in the City to acquire and lease the requisite land across the UK to set up the ‘One2One’ cellphone network.

I distinctly remember the delightfully English senior partner of this firm praising the skills of New Zealand lawyers and our ability to make quick commercial decisions while at the same time commenting that none of us was driven towards careers in the law and, instead, all we wanted to do was travel widely in Europe.

On my return from London in 1999 I joined Keegan Alexander to assist the inimitable Peter Spring with a large intellectual property/anton piller claim. I started to specialise in health and safety work, including fatalities, which was unusual at the time. When I first started practising in health and safety, the maximum fine was $50,000 and you could obtain insurance for the fines. Now, of course, the standard, maximum fine is $1.5 million and since 2003 it has been illegal to insure or to indemnify for fines, although reparation and defence cost cover is still available (and essential).

In July 2006, after about 10 years of practice (which I had unilaterally decided was the minimum litigation experience possible), I decided to make a move to become a barrister. I have been in two city chambers since then and in 2017 I decided to take my own space.

As a defence lawyer, I find myself passionately involved for employers and business owners. The impact of these accidents and any prosecutions that follow is huge. It can be devastating for all involved, recognising (of course) that the impact of any workplace accident on victims and their families is undeniably the primary impact and the primary concern.

Outside defence work, I have enjoyed making a few ‘top of the cliff’ changes in safety, such as my suggested colour coding of risk for forestry workers chaining up logs for extraction (or, “breaking out”). This coloured, safe-retreat system has now been adopted by many forestry companies and endorsed by WorkSafe NZ. I have also been working on a unified safety protocol for all motorsport groups in New Zealand with almost universal buy-in across most of the major motor sports.

How long have you been a member of ADLS?

I was with ADLS in the earlier stage of my career when membership was compulsory. I decided to re-join in 2015 because I learned that ADLS was establishing a new health and safety committee, initially suggested (I understand) by barristers Sam Moore and Fletcher Pilditch. Fletcher became the committee’s inaugural convenor and I agreed to help out.

I first met Fletcher when we were on opposite sides of New Zealand’s biggest animal welfare cases, linked with the Crafar Farms. The dairy cow herd on that main farm was approaching 4,200 animals and MPI/MAF brought 716 charges relating to allegations of the under-feeding of cows in some herds against five defendants.

Fletcher was the Crown Solicitor at the time. I acted for the defence and we also engaged (now) Justice Paul Davison QC. It was through that case that we struck up a friendship. Fletcher recently stood down as the convenor and I have agreed to carry the torch.

How long have you been involved with ADLS committees and which committees have you worked with?

I have had colleagues on other committees but it wasn’t until this specialist committee was established in 2015 that I decided I should offer to become involved.

Why is committee work important?

In my view, the profession needs support in different ways, such as the provision of continuing professional development and education, collegial support and occasionally from specialist groups as advocates for the profession. The ADLS and its committees make significant contributions in these areas.

How do ADLS committees make a difference?

I suspect the true difference will depend upon the composition and energy of the particular committee, the area of law and the profession’s needs.

In 2020, perhaps more than ever, the profession and the entire country are aware of how quickly things can change, and the value of professional guidance and of leadership during times of adversity or uncertainty.

During the Covid-19 lockdown period, ADLS was asked to provide guidance and submissions on the urgent progression of Covid-19 legislation and regulation.

ADLS reached out to the specialist committees and I think, from what I saw at that time, committee members made valuable and practical contributions to submissions on very little notice. I am not 100% sure how much of what was queried or suggested was influential in the final form of the legislation, but it is a great example of the kind of difference that ADLS can make as a professional society.

What’s been the most notable achievement or biggest focus of your committee over the past few years? Why was that important?

Health and safety is an unusual area of law. All law is fact-dependent but health and safety law hinges on the specific facts of a certain circumstance and workplace.

This means case law updates, case trends and CPD updates are not always especially helpful unless there are policy or process (or perhaps sentencing) implications of wider relevance.

For example, I was involved with the Zion Wildlife fatality of a zoo keeper many years ago in Northland which occurred while feeding white tigers in captivity; I was involved with the St Kentigern College “Sweeney Todd” investigations arising from a school play and I am helping with the events of the eruption of Whakaari in early December 2019.

To me, these are interesting cases and facts, which is what keeps me interested in my work. But there may not be any significant precedent created as a result of these cases, especially in those where no legal or enforcement action arises.

Contrast this with employment law, where fair contract negotiations, holiday pay interpretations, unjustified dismissals and redundancy case law have a broad application and relevance for the profession and for society. This has been a challenge for our committee.

The work of the Health and Safety Committee has mainly been to monitor and to comment on the evolution of the law since the 2015 Act came into force.

This has included some important cases on the correct processes for sentencing s 36 and s 34 cases, for assessing the value of “emotional harm” reparation and consequential losses, (which at one point moved towards a personal injury style analysis and actuarial assessment of economic “lost opportunity”) and the relevance of ancillary orders, such as enforceable undertakings and work project orders, and finally financial capacity at a strict liability corporate sentencing.

To return to the question, I am not sure we can truly single out a most notable achievement or single success but I am sure we have assembled a specialist group of lawyers who will help to mould the law in this area, and, I hope, to keep the profession current.

What would you say to anyone thinking of becoming involved in an ADLS committee?

It is very rewarding. However, done properly, it requires a commitment to the committee and to the profession. It is a responsibility which is not to be taken lightly. Balance that with the opportunity to assist the profession and work alongside other specialists and the great team at ADLS.

What’s the biggest issue facing your practice area? And how does that affect lawyers and their clients?

This year has thrown up several new and unexpected issues and challenges for everybody. I am sure there will continue to be challenges for the regulator, for employers and for business owners as a result of all that is unfolding with Covid-19 and the extent to which you can manage a workplace to honestly “ensure” the health of all workers, contractors and visitors.

There will likely be health monitoring and health privacy issues to come, perhaps in conjunction with the new Privacy Act 2020 and any changes to the Health Information Privacy Code.

Alongside that, there are real opportunities arising here that we as a profession should try to seize. Our committee is talking with the courts and the judiciary about the potential extended use of some technology in our work areas (eg, category 1 cases) and there are possible benefits and cost savings in the administration of justice in health and safety cases too.

What’s the best kept secret about ADLS?

The friendly professionals that you work alongside and, of course, the sausage rolls!

To find out more about ADLS committees, contact Zong-Pei Zhao:

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