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Safeguard OSH Solutions - Thomson Reuters

Safeguard OSH Solutions - Thomson Reuters



Safeguard Magazine

Legal Viewpoint—From mossy path to slippery slope?

KYLIE DUNN and JUNE HARDACRE say employers need to guard against even the most mundane risks, including protecting employees from themselves.

We are all familiar with the horror stories out of the United States where employees or property owners are sued for millions if someone slips over on their driveway.

In New Zealand one of the benefits of the ACC regime is a prohibition on this type of personal injury litigation. But to what extent have criminal prosecutions under the Health and Safety in Employment Act 1992 begun to replace personal injury litigation?

In Department of Labour v Middlemore Carparking Ltd & Counties Manukau District Health Board (Judge Blackie, 16 August 2011) the District Court considered a workplace injury suffered by an employee when he was walking down an outdoor ramp. The plywood ramp was only 2.7m long and 39cm high at its highest point. There had never been any complaints or issues with the ramp, but after several years of exposure to the elements its surface had a tendency to become slippery when wet. The employee slipped on the ramp and fractured his ankle.

The Department of Labour charged both the employee’s employer and the building manager under the HSE Act. Both entered guilty pleas. The matter came before the Court at sentencing.

Interestingly (and, as the Court noted, unusually) the injured employee did not file a victim impact statement. Nor did he identify a loss for which reparations were sought. Rather, he provided an affidavit in support of the organisations charged, acknowledging his contribution to the situation.

He said that he had been wearing bowling shoes which had a soft sole, no heel and little tread. The employee also said that he had been in a hurry on the day concerned, and had been walking briskly down the ramp. He also acknowledged that he had done so despite knowing that the ramp had a tendency to get slippery when wet.

The Court acknowledged the employee’s comments. But it also recognised the absence of steps taken by the two organisations. In particular, the Court commented on the absence of both a handrail and non-slip material on the ramp’s surface.

The Court considered both reparations and a fine. Reparations of $3000 were ordered. The Court commented that it considered that a fine of $22,000 on each organisation would have been appropriate. However, as the Counties Manukau District Health Board is a crown entity, it cannot be fined. The Court commented on the need to avoid inequality with two equally culpable defendants. It fined Middlemore Carparking Ltd $10,000 and ordered the Counties Manukau District Health Board alone to pay the reparations of $3000.

This decision is in line with previous decisions of both the District Court and High Court. In 2008 the High Court in Martin Simmons Air Conditioning Services Ltd v Department of Labour (30 April 2008, Venning J) considered a prosecution following the death of an employee in a workplace accident. In that case, the employee had disobeyed instructions of the employer. He had been instructed not to walk on a roof as it was too brittle. He did so, and the roof gave way. The employer was convicted as the High Court found that the employer could have taken further “practicable” steps, including hiring a cherry picker to assist the employee to perform the work.

So where does this leave us? It has long been clear that the duties imposed under the Health and Safety in Employment Act are “uncompromising and onerous”. This is rightly so given that the workplace and its conditions are controlled by the employer. But what weight should be given to employee contribution?

In the case of the slippery ramp, it is conceivable that the employer could have taken steps to make improvements to the ramp. But is this practicable, given the ramp was only 39cm high? Yes, says the District Court.

If there is a lesson to be learned for employers from this case, it is that health and safety duties really are wide reaching and encompass even the most mundane of workplace features. And, in some situations, it is part of an employer’s duty to protect employees from themselves.

KYLIE DUNN is an associate and JUNE HARDACRE a solicitor with Russell McVeagh.

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