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Personal Injury in NZ

SP9 Overview of Interpretation Sections of Health and Safety at Work Act 2015

SP9
Overview of Interpretation Sections of Health and Safety at Work Act 2015
The following definitions are taken from s 2 of the HSW Act.
Purpose
Section 3 of the Act provides that the main purpose is to provide for a balanced framework to secure the health and safety of workers and workplaces by –
(a)
Protecting workers and other persons against harm to their health, safety, and welfare by eliminating or minimising risks arising from work or from prescribed high-risk plant …
PCBU
Section 17 provides that:
“17(1)
Meaning of PCBU
“In this Act, unless the context otherwise requires, a person conducting a business or undertaking or PCBU
“(a)
means a person conducting a business or undertaking—
“(i)
whether the person conducts a business or undertaking alone or with others; and
“(ii)
whether or not the business or undertaking is conducted for profit or gain; but
“(b)
does not include—
“(i)
a person to the extent that the person is employed or engaged solely as a worker in, or as an officer of, the business or undertaking:
“(ii)
a volunteer association:
“(iii)
an occupier of a home to the extent that the occupier employs or engages another person solely to do residential work:
“(iv)
a statutory officer to the extent that the officer is a worker in, or an officer of, the business or undertaking:
“(v)
a person, or class of persons, that is declared by regulations not to be a PCBU for the purposes of this Act or any provision of this Act.”
Worker
“Worker” is defined in s 19 of the Act and means, an employee, contractor or subcontractor, an employee of a contractor or subcontractor, an apprentice or trainee, volunteer worker. A full definition is set out at paras 19(1)(a) to (i). For the more expanded definition see s 19.
SP9.01
Accident
“Accident” means an event that:
(a)
Causes any person to be harmed; or
(b)
In different circumstances, might have caused any person to be harmed:
The classic definition of “accident” is contained in the dictum of Macnaghten LJ in Fenton v Thorley & Co Ltd [1903] AC 443 (HL) (at p 448): “The expression ‘accident’ is used in the popular and ordinary sense of the word as denoting an unlooked for mishap or untoward event which is not expected or designed.”
The definition of “accident” in the HSE Act specifically covers accidents which cause harm (that is, illness, injury, or both) or which are potentially harmful. This can be compared with the much narrower definition in the Accident Compensation Act 2001. Unlike the 1992 Act, “accident” is not defined in the HSW Act. Instead the HSW Act defines a notifiable injury or illness, notifiable incident and notifiable event.
SP9.02
Notifiable injury or illness
Section 23 of HSWA defines a notifiable injury or illness in relation to a person as an injury or illness that requires the person to have immediate treatment (other than first aid) for:
(i)
the amputation of any part of his or her body;
(ii)
a serious head injury
(iii)
a serious eye injury
(iv)
a serious burn
(v)
separation of his or her skin from an underlying tissue (such as degloving or scalping)
(vi)
spinal injury
(vii)
the loss of a bodily function
(viii)
serious lacerations.
“Serious infection” is defined in s 23(1)(d).
SP9.03
Notifiable incident and notifiable event
A notifiable incident is defined as being any unplanned or uncontrolled incident in relation to a workplace that exposes a worker or any other person to a serious risk to that person’s health or safety arising from an immediate or imminent exposure to –
(a)
an escape, a spillage, or a leakage of a substance; or
(b)
an implosion, explosion, or fire; or
(c)
an escape of gas or steam; or
(d)
an escape of a pressurised substance; or
(e)
an electric shock; or
(f)
the fall or release from a height of any plant, substance or thing; or
(g)
the collapse, overturning, failure or malfunction of, or damage to, any plant that is required to be authorised for use in accordance with regulations; or
(h)
the collapse or partial collapse of a structure; or
(i)
the collapse or failure of an excavation or any shoring supporting an excavation;
(j)
the inrush of water, mud, or gas in workings in an underground excavation or tunnel; or
(k)
the interruption of the main system of ventilation in an underground excavation or tunnel; or
(l)
a collision between two vessels, a vessel capsize, or in the inrush of water into a vessel; or
(m)
any other incident declared by regulations to be a notifiable incident for the purposes of this section.
Following on from this, a notifiable event is defined as any of the following events that rise from work that causes:
(a)
death of a person; or
(b)
notifiable injury or illness; or
(c)
a notifiable incident.
SP9.04
“All practicable steps”
All practicable steps” are replaced by “reasonably practicable”. Under the Health and Safety in Employment Amendment Act 2002, the phrase “all practicable steps” was defined in s 2(A). That definition has not been carried forward to the new Act, but there is a similarity in the language used to define “reasonably practicable” at s 22 of the HSWA. Section 22 provides that:
reasonably practicable, in relation to a duty of a PCBU set out in subpt 2 of Part 2, means that which is, or was, at a particular time, reasonably able to be done in relation to ensuring health and safety, taking into account and weighing up all relevant matters, including—
“(a)
the likelihood of the hazard or the risk concerned occurring; and
“(b)
the degree of harm that might result from the hazard or risk; and
“(c)
what the person concerned knows, or ought reasonably to know, about—
“(i)
the hazard or risk; and
“(ii)
ways of eliminating or minimising the risk; and
“(d)
the availability and suitability of ways to eliminate or minimise the risk; and
“(e)
after assessing the extent of the risk and the available ways of eliminating or minimising the risk, the cost associated with available ways of eliminating or minimising the risk, including whether the cost is grossly disproportionate to the risk.”
Although this was a case under the old legislation, in Department of Labour v Solid Timber Building Systems New Zealand Ltd 7/11/03, Baragwanath J, HC Rotorua AP 464/44/2003, the Court found that the correct test for all “practicable steps” was whether it is reasonably practicable for the employer of that operation to take steps to protect the operator. In that case an employee seriously injured his right hand when he reached into an unguarded machine to clear sawdust away. Despite the fact that the employee’s actions were contrary to the instructions he had been given, the Judge held that the law is to protect people, if necessary, from themselves. Therefore it was practicable to protect the operator, even if the result was that production from the machine decreased to such an extent that the machine was no longer economically viable.
It seems likely that similar logic may be applied when construing what is reasonably practicable, in relation to an employee’s actions, in terms of s 22 of the HSWA.
SP9.05
Workplace
Section 20 of the Act defines a workplace as being:
“A place where work is carried out, or is customarily carried out, for business or undertaking and includes any place where a worker goes, or is likely to be, while at work.
“‘Place’ includes a vehicle, vessel, aircraft, ship, or other mobile structure and any waters and installation on land, on the bed of any waters, or floating on any waters.”
SP9.06
Hazard
Hazard is defined in s 16 of the HSWA as including “a persons behaviour where that behaviour has the potential to cause death, injury, or illness to a person (whether or not that behaviour results from physical or mental fatigue, drugs, alcohol, traumatic shock, or another temporary condition that affects a persons behaviour.” Under the 2002 amendment, “harm” meant illness, injury or both and included physical or mental harm caused by workplace stress.
(1)
Stress as a hazard
In Gilbert v A-G [2001] 1 ERNZ 332, the Employment Court (Colgan J) held that the stresses and strains of work as a probation officer were a hazard in terms of the HSE Act. The Court found that Mr Gilbert was exposed to an excessive and stressful workload and environment and that his employer failed to monitor his health in relation to that hazard, in breach of the employer’s express contractual obligation to comply with the HSE Act. On appeal (A-G v Gilbert [2002] 1 ERNZ 31; [2002] 2 NZLR 342 (CA)) (which did not challenge the findings of the Employment Court that the employer was in breach of express and implied terms of the employment contract) a full Court (Elias CJ, Richardson P, Gault J, Keith J, and Blanchard J), observed (at para 83):
“The appellant raises the spectre of unreasonable burden on employers. The standard of protection provided to employees by the Health and Safety in Employment Act is however a protection against unacceptable employment practices which have to be assessed in context. That is made clear by the definition of ‘all practicable steps’. What is ‘reasonably practicable’ requires a balance. Severity of harm, the current state of knowledge about its likelihood, knowledge of the means to counter the risk, and the cost and availability of those means, all have to be assessed. Moreover, under s 19 the employee must himself take all practicable steps to ensure his own safety while at work.”
The Court of Appeal also noted that the duty to take reasonable steps to maintain a safe workplace is also a term now implied by common law into employment contracts in other common law jurisdictions (see the discussion in Johnson v Unisys Ltd [2001] 2 WLR 1076; [2001] 2 All ER 801 (HL) and in Wallace v United Grain Growers Ltd (1998) 152 DLR (4th) 1) and that the content of the duty is informed and given content by modern legislation such as the HSE Act. The Court also noted (at para 89):
“In Johnson v Unisys Ltd [2001] 2 WLR 1076; [2001] 2 All ER 801 (HL), Lord Steyn refers to the intensification of modern work pressures and the inevitable increase in the incidence of psychiatric injury through excessive stress and suggests that the need for protection of employees through their contractual rights, express and implied by law, is markedly greater than in the past. If a plaintiff is able to show that the employer failed to do what was reasonable at the time and was in breach of the contractual obligations, no reason of policy inhibits contractual liability for psychological injury.”
In Koia v A-G in respect of Chief Executive of Ministry of Justice [2004] 2 ERNZ 213, the employment agreement, unlike that under consideration in Gilbert, did not contain any express term requiring the parties to comply with their duties under the HSE Act. However, the Court was prepared to imply into the agreement the general duties of employers and employees under the Act (judgment para 106). The plaintiff’s claim failed on the facts. In Dept of Labour v Nalder & Biddle (Nelson) Ltd 13/4/05, Judge McKegg, DC Nelson CRN04042500 in a case where stressful work conditions and special medical difficulties had been advised to the employer, the Court noted (inter alia) the need to discourage employers from avoiding responsibility for the health of employees, and that where employees have stressful work conditions and special medical difficulties advised to the employer, then immediate remedial action is required. On a guilty plea for breach of s 6, a fine of $8,000 was imposed.
A more recent example is the case of Davis v Portage Licensing Trust [2006] ERNZ 268 (EmpC) where the applicant successfully applied for compensation for breach of employment contract through failure to provide a safe workplace, Davis had been the victim of three successive armed robberies. The Court held that at the time of the first robbery the defendant knew that criminal offending in the area had increased to a point where staff could be endangered. As such the defendant should have provided appropriate security and training for staff. The defendant also should have realised the cumulative stress effects of three robberies on the applicant. This stress remained the operating cause of D’s condition. The Court awarded Davis lost renumeration, 18 months economic loss and $45,000 for non-economic loss.
SP9.07
Relationship with ACC
While illness or injury caused by work-related stress is covered by the HSW Act, it does not fall within the jurisdiction of the accident compensation scheme. So if a worker suffers a stress-related illness, a heart attack, or psychiatric condition caused by work-related stress, he or she will not be covered by ACC legislation. Stress-related injury is only covered under ACC legislation when it arises as a by-product of a physical injury or arises as a result of certain sex crimes.
SP9.08
Personal injury related to non-physical stress
Section 30(5) Accident Compensation Act 2001 provides:
“(5)
Personal injury caused by a work-related gradual process, disease, or infection does not include—
“(a)
personal injury related to non-physical stress; or
“(b)
any degree of deafness for which compensation has been paid under the Workers' Compensation Act 1956.”
The exclusion of personal injury caused by work-related stress from cover under the Act, permits compensatory damages to be awarded, in circumstances such as A-G v Gilbert [2002] 1 ERNZ 31; [2002] 2 NZLR 342 (CA).
SP9.09
Offence when no harm suffered
Actual harm is not required to prove an offence under ss 47-49 of the HSW Act. Section 48(1)(c) provides that an offence is committed if there is a failure to comply with a duty under subpts 2 or 3 and the failure results in the exposure of risk of death or serious injury or illness to that individual.
In Punt Painting and Waterblasting Ltd v Burt 21/12/95, Greig J, HC Nelson M32/95, the Court noted, obiter (at p 5), that:
“It is not . . . essential that harm should occur although the evidence of actual harm will, of necessity, reinforce the allegation that the action or inaction may cause harm and, moreover, that practicable steps have not been taken to prevent that harm occurring. Clearly, however, there has to be a causative link between the action or inaction and the failure to take practicable steps on the one hand, and the harm or the likelihood of harm on the other.”
The Court held that the necessary causative link will be supplied if it can be said that what was done, whether it be an act or omission, was a not insubstantial cause, a cause which but for its occurrence the result would not have followed.
In Dept of Labour v Bell Block Quarries Ltd 18/9/96, Judge Abbott, DC New Plymouth CRN4043004077-78, the Court concurred with the decision of Judge Buckton in Dept of Labour v Lastel Construction Ltd [1995] DCR 121 that actual harm to an employee is not an essential element of an offence relating to breach of that duty. In Lastel the breach was by a principal (s 18) while in Bell Block the breach was by an employer under s 15.

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