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Health and Safety Update – April 2016

Home Insights Health and Safety Update – April 2016

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Contributed by: Kylie Dunn, Malcolm Crotty, Adrian Olney and Mark Campbell

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Published on: April 21, 2016

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When does child’s play engage grown-up duties?

Schools around New Zealand have been accused of taking “drastic” and “misinformed” measures in their attempts to comply with the Health and Safety at Work Act 2015 (HSWA), which came into effect earlier this month on 4 April. The issue highlights the problem of where to draw the line between being responsible and being overprotective, especially where duties relate to people who are not employees. 

In particular, Greytown School’s decision to ban tree climbing has come under fire from Workplace Relations and Safety Minister Michael Woodhouse and WorkSafe NZ Chief Executive Gordon MacDonald, who have been at pains to reassure school principals that they have “nothing to fear”.

The Minister said that, “no school should be worried about banning children from climbing trees out of fear of the new rules”, on the basis that, “we’ve all fallen out of trees and skinned our knees”. Meanwhile, Mr MacDonald expressed his view that the new Act does not require schools to ban kids from climbing trees, because, “kids have always climbed trees, and some of them have hurt themselves. It’s not reasonable to expect schools to stop kids being kids and taking low-level risks.” Kids falling from trees, assured MacDonald, is not the sort of risk that WorkSafe NZ is interested in.

Both the Minister and Mr MacDonald are highlighting that the obligations under the Act require assessments of reasonableness and proportionality and so necessarily involve a degree of judgement. Although, in their attempts to quell schools’ anxiety, both have understated the difficulties that many organisations understandably face in identifying precisely what the new Act requires of them. 

While the Minister and Mr MacDonald are at pains to reassure the public that the intention of the Act is not to outlaw harmless fun, it is not clear that tree-climbing necessarily is a low-level risk. In October last year 15-year-old Rohan Watts tragically died after falling from the tree he was climbing on a friend’s property. Rolling Stone Keith Richards was famously hospitalised with a brain injury after falling from a small palm tree in Fiji. Nor is it beyond imagination that the sort of tragedy suffered by schoolboy Aryan Banerjee after his shirt got caught as he was climbing out of a window could have happened while climbing a tree. In any given year, ACC processes an average of 33,000 new claims for injuries sustained by school-age children following falls at school, more than 5000 of which result in a fracture or dislocation and a further 400 of which are categorised by ACC as causing “concussion or brain injury”.

Against that background, a school might apply the statutory criteria by reasoning that it is not uncommon for kids to fall when climbing trees; the consequences of falling range from minor bruises to death, and a ban removes the risk entirely and costs little, if anything, to impose with teachers already on duty that could enforce the ban. Following that reasoning, is it so absurd that a school might consider banning tree-climbing to be a reasonable step in managing the risk of injury?

Mr MacDonald says that kids falling from trees is not the sort of risk that WorkSafe is interested in. However, the risk is covered by the Act and, in a workplace context, avoiding falls from height is, quite rightly, a major focus of WorkSafe. MBIE’s Best Practice Guidelines for working at height emphasises that doing nothing to manage the risk of falls is not an option. Indeed, the first consideration urged on duty-holders is to consider whether the job can be done without having people working at height. 

An employer who did nothing to protect a worker who then fell from a height of three metres or more could well expect to be prosecuted for failing to meet the requirements of the Act. Would WorkSafe NZ still be uninterested if the tragedy that befell Rohan Watts had happened while climbing a tree at school? Or if a child suffered a brain injury such as that sustained by Keith Richards? How much confidence should a school have that WorkSafe would, after such a tragedy, hold the same view as Mr MacDonald or the Minister that a ban was not a reasonable way of avoiding such an event?

The willingness of the Minister and Mr MacDonald to give guidance on the Act’s requirements is most welcome. However, dismissal of a school’s genuine attempt to meet its requirements with glib observations that “kids will be kids” does a disservice to the level of analysis and thoughtfulness that application of the Act requires. 

What is required, then, is a nuanced approach – in both the advice given by the likes of the Minister and Mr MacDonald, and the way in which it is implemented. WorkSafe has worked hard in other areas to help organisations understand what is required of them, and is to be commended for that, but schools and similar institutions would surely appreciate a similar level of assistance to ensure that they do not become the test case after a tragedy, whether at the hands of WorkSafe or through a private prosecution.

Site of monster truck demonstration not a workplace

WorkSafe will not prosecute an Ashburton monster truck driver following an incident last year. A teenage girl suffered minor burns after being mounted in a cage on the front of a monster truck and driven through a ‘fire wall’ of petrol, straw and timber at the Rangiora A&P Show.

It has been reported that WorkSafe investigated the matter and decided not to prosecute the driver because it considered it to have not occurred in a place of work and so the Health and Safety in Employment Act (HSEA) did not apply. Despite this, it appears that WorkSafe did consider the broader A&P Show to be a place of work, in that it has been reported to have said that the A&P Association owed specific duties to its employees, volunteers and people who paid to be at the Show, but not the driver and teenager. 

The HSEA defines a ‘place of work’ as being any place where work is undertaken for gain or reward, and the HSWA similarly defines a ‘workplace’ as being any place where work is carried out for a business or undertaking.

WorkSafe’s position that the monster truck demonstration site was not a place of work appears sound. So too does its position that the greater A&P show site was a place of work, with the consequence that the Association did owe certain duties to certain people. However, taking those positions concurrently is interesting and demonstrates that WorkSafe may consider certain spaces within workplaces to not be workplaces. 

As there is little difference between the definitions under the old and new acts, WorkSafe’s position will likely remain relevant under the new regime. The possibility of spaces being carved-out of workplaces is actually specifically catered for under the HSWA in respect of farms (where it is made clear that a PCBU does not owe certain duties in respect of a part of a farm ‘unless work is being carried out in that part at that time’), but will likely also be relevant in the case of other workplaces.

There may still be other decisions for WorkSafe to make under the old regime. Duty holders should be cautious that they do not automatically rely on such decisions as a yardstick for what they can and can’t do in the future, but should analyse them to see whether they will remain relevant under the HSWA.

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This publication is intended only to provide a summary of the subject covered. It does not purport to be comprehensive or to provide legal advice. No person should act in reliance on any statement contained in this publication without first obtaining specific professional advice.

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