The case of RH & JY Trust v WorkSafe New Zealand [2026] NZCA 12 sadly involves the death of a six-year-old child who was caught in farm machinery when their jacket was caught in an automatic gate in the milking shed. The child was the grandchild of a sharemilker who was working on the property.

In response, WorkSafe laid charges under the Health and Safety at Work Act 2015 (Act) against various entities, including:

1. The trustees who owned the farm in their family trust
2. The trustees individually
3. The sharemilkers

The Trust was charged as a PCBU. The Trust argued that they could not be a ‘person’ under the Act and therefore could not be a PCBU. WorkSafe argued that the definition of person under the Act included a ‘body of persons’, so therefore, it was wide enough to include a Trust.

The High Court held that the Trust was not a person under the Act but charged the trustees as a PCBU.

The Trust and trustees appealed the High Court Decision. The Court of Appeal decided that:

• The maximum prescribed fines should be available against operations that involve a Trust structure rather than the lower fines that apply to individuals – that requires Trusts to be prosecuted;

• the definition of Officer contemplates a wide range of unincorporated bodies to be PCBUs, and Trusts should be included; and

• the prohibition on providing an indemnity for fines under the Act would mean that a trustee prosecuted individually would be unable to call on the Trust assets. This was contrary to principles of Trust law and was not thought to be what Parliament would have intended.

The Court of Appeal ultimately held that the Trustees collectively could be considered a body of persons and even went one step further to state that a Trust could be a person under the Act.

Essentially, what this means is that Trusts can be considered PCBUs under the Act and are responsible for ensuring the health and safety of their workers and any other person affected by their work. They can therefore be prosecuted under the Act as a PCBU. This may have implications for organisations that are owned and/or operated from a Trust, particularly those in the farming or business industry.

It also means trustees can be considered Officers under the Act and must complete their relevant due diligence such as ensuring compliance and reporting, per section 44 of the Act.

Some other key implications can include:

• Insurance – you cannot insure against fines and penalties under the Health and Safety at Work Act; insurance is only applicable for reparation or Court-related costs generally.

• Professional trustees – what insurance and professional implications are and what appetite there is for people or trustee companies to act in this capacity now.

• Obligations of trustees as Officers and what impact this may have for your business or organisation.

A Trust will be considered a person under s16 of the Act; and Trustees as Officers and must meet their obligations under s 44 of the Act.

If this determination is relevant to your operations, feel free to get in contact with one of our team to understand the implications specific to your industry.

Need advice?  The team at Copeland McAllister is happy to support you with any health and safety matter. Give us a call on 03 211 0153 or email admin@cmalaw.co.nz. 

Disclaimer: This update provides commentary on employment law, health and safety and immigration topics, it should not be used as a substitute for legal or professional advice for specific situations. Please seek legal advice from your lawyer for any questions specific to your workplace.