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Safeguard OSH Solutions - Thomson Reuters

Safeguard OSH Solutions - Thomson Reuters

Safeguard Magazine

Legal Viewpoint—An education?

ANGELA GREGORY takes a look at the legal implications of health and safety through the ages (with apologies to Aristotle et al).

Education helps you to think about the same subject in different ways – and a Victoria University law lecturer last year urged a few hundred first-year law students to try to relate the principles of law they were learning to real life. Among them was yours truly.

Readers may or may not realise that this magazine is produced by New Zealand’s major legal publishing company Thomson Reuters, formerly known as Brookers. And being a good corporate citizen as well as editor, I had decided it was about time to learn a thing or two about the law.

I have covered dozens of criminal and civil cases in my days as a general reporter for daily newspapers, and still write up all the cases you may have just read in the From the Courts pages.

You can pick up quite a lot of legalese from just watching and reading about the legal system at work, but surrounded in the office by law graduates I was keen to gain a deeper insight into the mechanics and philosophy of law. How else could I confidently differentiate the ratio descendi from the obiter dictum over a cuppa in the cafeteria?

So in this context, and while not rating my chances of finding a lawyer to write this column over the Christmas break (in jurisprudence this would be regarded as an example of legal realism), decided to attempt my own viewpoint on how health and safety in New Zealand relates to legal principles developed over the centuries.

This idea came to me after a particularly stirring final lecture, while my brain was still overflowing with the noble principles of the Greek philosophers (and with the more cynical advocates of critical legal theory).

New Zealand inherited the English legal system, Western jurisprudence coming hand in glove with British colonial rule. Of course Maori were doing their own thing here in Aotearoa hundreds of years before the British grabbed the reins, but their indigenous laws, or lores, weren’t taken into account, let alone understood or valued -despite the somewhat muddied assurances they could retain their tino rangatiratanga (what Maori considered as their absolute sovereignty) in article 2 of the Treaty of Waitangi.

So in considering the philosophical underpinnings of our legal system we can cast our minds back to ancient Greece and philosophers like Plato, Aristotle and Socrates. These three had turned their not inconsiderable minds to the regulation of human affairs and the order of society, and their ideas still resonate.

Indeed the Socratic method was put to use in our law classes where random questions were fired from the lecturers to the students, the effects at times akin to serious harm – at least to our emotional wellbeing. Mind you, Socrates suffered serious harm himself, after being condemned to death for “heretical teachings”, in other words asking too many questions. Having agreed to live under the Athenian law, he felt he had to accept its outcome, as to do otherwise would break his social contract with the state.

Plato talked of the philosopher king, a benevolent ruler who in a democratic system could wisely make laws for society. Who could this equate to today? Queen Kate W (as in Wilkinson, not Wales) perhaps, who leads from the top and rules by example. Our Minister of Labour has previously admitted to Safeguard that her closest brush with workplace injury was a paper cut. As a former farm girl from Canterbury, that’s a personal safety record to aspire to.

Aristotle promoted the notion that any law which promoted goodness was a just law. Law, he argued, should meet some objective moral standard. Preserving the family unit by allowing workers to return home safely would surely meet the moral test of most New Zealanders.

During Roman times in Britain, might was right, and trial by ordeal or battle dominated the earliest forms of social control. But when the Western Roman Empire collapsed a common law system began to develop, prompted by the arrival of the Normans in 1066.

William the Conqueror was the first absolute monarch, and he ensured courts followed the King’s direction. Disparate local laws evolved into consistent (hence common) laws where judges apply the same rules in similar cases. In OHS this is evident where New Zealand courts consistently refer to the 2008 Hanham & Philp case when assessing culpability and setting fines for workplace accidents.

Legal thought in England was also dominated by church doctrine and much of New Zealand law remains based on Judeo-Christian morality, even back to the Ten Commandments received by Moses. Thou shalt not kill could arguably in today’s terms apply to saw-wielding employers as well as axe-wielding murderers. Other Christian influences remain, like the ban on retail trading at Easter and Christmas. And before our relentless 24/7 society, Sundays had been strictly days of rest – no doubt appreciated by workers trying to maintain a work-life balance.

Philosophers later began to focus on the relationship between the power of the State and the rights of the individual. Thomas Hobbes believed only the State could protect people from each other, through the use of the law. This thinking supports the purpose of statutes like the HSE Act in setting out the law, and sanctions for failing to comply, and the Department of Labour’s executive powers to prosecute.

John Locke later stressed the power of the individual and focused on the rights of citizens to life and liberty. If the state failed the individuals they could seek new leaders. Could the Pike River fallout, after the commission of inquiry releases its findings, become an election issue? Could heads roll?

Such legal liberalism, promoted by Locke and others, supports individual freedom and freedom from paternalism or what some have labelled the nanny state. Such views remain a potent force in New Zealand, with powerful lobby groups advocating reduced government intervention in economic affairs. Such an underlying philosophy was likely to have underpinned some of the thinking that led to the self-regulating safety approach for high risk industries like mining in New Zealand.

Last century the American legal theorist Lon Fuller pushed for a legal framework of key rules to determine a workable legal system, including that the law must be publicised, understandable, and not rapidly changed. A new definition of serious harm, anyone?

In critical legal theory, academics analyse the legitimacy of law in relation to economic power. Marxist legal theorists for instance argue the court system is created by a capitalist class for its own benefit, and at the expense of the working class. This analysis could explain the relatively low fines issued by New Zealand courts for workplace accidents, which in turn raises another approach to studying law – legal realism – which looks at what the courts actually do in practice, rather than necessarily what is preached.

Also relevant in this area of workplace law is “law and economics”, where economic concepts are applied to law with a focus on maximising wealth and improving efficiency. A proponent of this, US jurist Justice Learned Hand (his real name), was deliberating on an accident involving a sinking barge when he came up with his now famous formula for negligence. Simply stated, if the cost or burden of preventing the accident would have been less than the cost of injury multiplied by the probability of the occurrence, then the accused will not have met the standard of care required. Critics of such an approach would say it raises the problem of what monetary value one puts on a human life, but at least it makes “all practicable steps” look rather a doddle.

Such foreign negligence law also highlights an important OHS-related area where the New Zealand legal system made a bold departure from the rest of the world – the introduction of the Accident Compensation Act 1972. This ground-breaking legislation replaced personal injury negligence with no-fault, universal accident insurance coverage.

Indeed the New Zealand legal system is no longer a carbon copy of English law and has been developing its own unique character. This has been in part influenced by the increasing recognition of Maori custom, for instance in areas of restorative justice and concepts like muru (reparation). And I can attest from over two years of reading all the DoL prosecutions that the compensation paid by businesses or individuals to victims or their families appears to be an increasingly significant element of the legal consequences of workplace harm.

In regard to such home grown legal initiatives New Zealand can take a bow on the international stage. Our accident rates might still have a lot to answer for, but many of the legal mechanisms supporting health and safety here can confidently stand up to global scrutiny.


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