Russel John Tully’s killing of two Ashburton Work and Income New Zealand (WINZ) staff members in September 2014 highlighted the ever-present risk of client-initiated violence, note Buddle Findlay lawyers Sherridan Cooke and Mere King.
Tully set upon a plan to kill the employees who had dealt with him, after they had declined a number of his requests for assistance. Found guilty of murder, he was sentenced to imprisonment by the High Court. 
The Ministry of Social Development (MSD) was charged under the old Health and Safety in Employment Act 1992 (HSEA) for failing to take practicable steps to protect its staff against the threat of client-initiated violence.
WorkSafe’s prosecution of the MSD is a signal to all organisations that deal with the public that they need to consider the risk of client-initiated violence.
For organisations who have workers who are more likely to be exposed to client-initiated violence, this judgment is a timely reminder to review your risk management procedures in light of the District Court’s findings.
However, before traversing the District Court judgment and what principles can be taken away, we review the basic concept of client-initiated violence and how it could apply to your workplace.
What is client-initiated violence?
Client-initiated violence is violence committed by an individual who has, or has had a service relationship with the victim or the victim’s organisation.
An incident may involve:
- a one-off physical act of violence that results in a fatal or non-fatal injury or no obvious injury
- some form of threat or verbal abuse.
Client-initiated violence can range in nature from abuse, covert threats, overt intimidation and physical assaults with or without weapons.
While client-initiated violence is most commonly communicated face to face, it can also be conveyed by phone, email or letters.
Verbal abuse and threats are the most common form of client-initiated violence.
Is your workplace at risk?
International studies have identified service industry employees who work in hotels and restaurants, health, education and social care, and public administration are more likely to be exposed to client-initiated violence.
In particular, high risk jobs and workplaces usually involve a lot of face to face contact with clients and workers who:
- handle money or valuables i.e. banks, retail stores, off licence premises, bars
- carry drugs or have access to them i.e. pharmacists, doctors, nurses
- provide care and services to people who are distressed, fearful, ill or incarcerated i.e. healthcare workers, community workers
- are relating to people who have a great deal of anger, resentment and feelings of failure, or who have unreasonable expectations of what the organisation and the worker can provide i.e. fire service, public administration occupations such as social workers, community workers
- carry out inspection or enforcement procedures i.e. police, prison workers, probation officers, property managers
- work alone i.e. taxi drivers, bus drivers, workers who visit client homes, service station attendants.
Research has identified that the two most common types of perpetrators who commit client-initiated violence are:
- clients with a violent history who can be expected to be aggressive
- clients who are “situationally” violent – for example, when they are frustrated by delays in service or refusal of benefits.
The harm caused
Client-initiated violence can have considerable impact on the victims, the workforce generally and the employer. Low level client-initiated violence can leave workers with high levels of anxiety, depression and stress-related illness. The Ashburton WINZ case is an example of the extreme level of harm that can result from client-initiated violence, with Tully’s actions leaving two employees dead and two seriously injured.
Learning from WorkSafe’s prosecution of MSD
Following the Ashburton shooting, MSD was charged under the previous HSEA.
However, the principles applied by the court remain relevant under the current Health and Safety at Work Act 2015, when determining what reasonably practicable steps should be taken in the context of client-initiated violence.
In the Ashburton WINZ case, the court was required to assess whether the hazard of client-initiated violence at the Ashburton WINZ office was reasonably predictable, and if so whether MSD took all practicable steps to address the hazard, given the knowledge available to MSD prior to the incident.
The court determined that:
- it was reasonably predictable that client-initiated violence involving manual assaults and assaults with weapons (other than firearms) existed at the Ashburton WINZ office. When making this finding the court reviewed not only incidents at the Ashburton office, but it also looked at MSD’s nationwide experiences and international trends in client-initiated violence.
- the implementation of a zoning model, office design system, which used the zones to separate staff from clients and provided staff with a separate safe zone, was a reasonably practicable step in minimising the harm posed to the workers.
What we can learn from the Ashburton tragedy
When considering the risk of client-initiated violence in your workplace, learnings a ‘person conducting a business or undertaking’ (PCBU) can take away from the tragedy that occurred at Ashburton include:
- a PCBU must now consider the risk of client-initiated violence in their workplace. PCBUs, particularly those in the service industry, should look at implementing a formal process to identify whether client-initiated violence is predictable in their workplaces and an assessment of what measures are in place to reduce the nature and extent of any such violence. Regular risk assessments should take place to objectively identify whether risk measures are adequate.
- where client-initiated violence is identified as a reasonably predictable hazard in the workplace, a PCBU is required to take all reasonably practicable steps to address the hazard. This applies, even where the harm resulting from a hazard cannot be predicted as occurring at a particular time or place. An important part of any PCBU’s risk planning is to prepare for the moment where a general risk may manifest as a specific violent event.
- if a PCBU carries out a large number of interactions with clients and only a relatively small proportion of these are violent, that will not bring the hazard below the scope of reasonable predictability. In these cases, even if only a small proportion of interactions carry a risk of violence this may give rise to significant harm.
- in assessing the predictability of a hazard and the level of risk, it is important to take a macro approach. This requires an assessment of all circumstances, including domestic and international trends. In the case of national organisations, it will include a risk assessment of any underlying risk faced across all workplaces. This nationwide underlying risk may then be considered together with local temporal variations.
The Ashburton shooting has put a spotlight on the significant harm that can result from client-initiated violence in New Zealand. It is now more important than ever for a PCBU to consider the risk of client-initiated violence in its workplace.
Sherridan Cook is a partner and Mere King a senior associate at Buddle Findlay, one of New Zealand’s leading commercial law and public law firms with offices in Auckland, Wellington and Christchurch
