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Safeguard OSH Solutions - Thomson Reuters

Safeguard OSH Solutions - Thomson Reuters


7 Identification of hazards

7
Identification of hazards
(1)
Every employer shall ensure that there are in place effective methods for—
(a)
Systematically identifying existing hazards to employees at work; and
(b)
Systematically identifying (if possible before, and otherwise as, they arise) new hazards to employees at work; and
(c)
Regularly assessing each hazard identified, and determining whether or not it is a significant hazard.
(2)
Where there occurs any accident or harm in respect of which an employer is required by section 25(1) of this Act to record particulars, the employer shall take all practicable steps to ensure that the occurrence is so investigated as to determine whether it was caused by or arose from a significant hazard.

History Note - Statutes of New Zealand

This Act was repealed, as from 4 April 2016, by s 231(1) Health and Safety at Work Act 2015 (2015 No 70). See section 4 and Schedule 1 of that Act for the transitional, savings, and related provisions.

Commentary -

Synopsis
Every employer must identify and assess existing and new workplace hazards. The section also provides that employers must take all practicable steps to ensure investigation of accidents causing serious harm to determine whether they arose from a significant hazard.
Cross references
s 5 object of Act
s 6 general duties of employers
ss 8-10 duties of employers in relation to hazard management
s 11 results of monitoring
s 13 training and supervision
s 14 involvement of employees in development of procedures
s 25 recording and notification of accidents
ss 39-45 improvement and prohibition notices
s 49 offences likely to cause serious harm
s 50 other offences
s 53 strict liability
HS7.01
Scope
Sections 7-10 set out employers’ duties with respect to the management of hazards in the workplace. They provide a hierarchy of controls in a structured manner with the objective of making effective provision for the prevention of harm to employees at work. In effect they are the key words of the whole statute.
It is important to read the provisions of these sections in the context of the specific definitions in s 2: see [HS7.02].
(1)
Principles
The object of the Act, expressed in s 5 (as substituted in 2003), reflects a scheme to promote the prevention of harm through promotion of excellence in health and safety management, through the promotion of a systematic approach involving good faith co-operation in the workplace and input of the persons doing the work. It is intended that the structured approach in ss 7-10, with effective participation by employees and their unions, backed up by duties and penalties, should result in safer systems of work being jointly developed, implemented and maintained. The Minister of Labour, in her speech in the first reading debate of the Health and Safety in Employment Amendment Bill 2001 (163-1), pointed to both the unacceptable workplace death toll (160 per year) and the high economic cost of workplace injury and illness ($3.18 billion per year) as reasons for the proposed amendments to the Act.
(2)
Heavy onus on employers
The onus placed on employers by s 7 is a heavy one and refers not only to existing hazards but to new hazards as they may arise from time to time. In addition, hazards that have been identified must be regularly assessed to determine whether they are significant.
(3)
Investigating accidents
Where the employer is required by s 25 to record any accident that has harmed or might have harmed any employee or other person in its workplace, the employer has an additional duty to take all practicable steps to ensure the accident is investigated to determine whether it was caused by or arose from any significant hazard.
(4)
Responsibilities
Responsibility for ensuring that risk assessments are made rests ultimately with the employer, but in practice the task of hazard identification and subsequent assessment is often delegated to staff who supervise, control, or direct the work activities. Senior management provides the necessary resources so that training and information about hazards and evaluation techniques are undertaken. Management must also ensure that appropriately qualified persons are appointed to manage occupational safety and health, and in practical terms, this function is discharged by ensuring that responsibilities are assigned throughout the business structure. It is the responsibility of staff supervisors to actually implement ss 7-10, ensure adequate training and information is given to staff (ss 12 and 13), and provide reasonable opportunities for employees to participate effectively in ongoing processes for improvement (which include the matters in ss 6-13) of health and safety in the place of work (s 19).
Employers will need to review their systems regularly to ensure the Act is complied with.
HS7.02
Significant definitions
The duties in ss 7-10 must be read in the context of the specific definitions in ss 2 and 2A.
(1)
“All practicable steps”
(a)
Section 2A definition
The most important of these specific definitions is “all practicable steps” in s 2A (inserted in 2003 in place of an earlier definition in s 2):
2A
All practicable steps
“(1)
In this Act, all practicable steps, in relation to achieving any result in any circumstances, means all steps to achieve the result that it is reasonably practicable to take in the circumstances, having regard to—
“(a)
the nature and severity of the harm that may be suffered if the result is not achieved; and
“(b)
the current state of knowledge about the likelihood that harm of that nature and severity will be suffered if the result is not achieved; and
“(c)
the current state of knowledge about harm of that nature; and
“(d)
the current state of knowledge about the means available to achieve the result, and about the likely efficacy of each of those means; and
“(e)
the availability and cost of each of those means.
“(2)
To avoid doubt, a person required by this Act to take all practicable steps is required to take those steps only in respect of circumstances that the person knows or ought reasonably to know about.”
(b)
“Reasonably”
The word “practicable” has been qualified by the addition of the word “reasonably”. Case authority from other statutes using this phrase indicates that there must be a consideration of the preventive action taken as against its cost. In the words of Asquith J in Edwards v National Coal Board [1949] 1 KB 704 (CA) at 712, this:
“seems … to imply that a computation must be made by the owner, in which the quantum of risk is placed on one scale and the sacrifice involved in the measures for averting the risk (whether in money, time or trouble) is placed on the other; and if it be shown that there is a gross disproportion between them — the risk being insignificant in relation to the sacrifice — the defendants discharge the onus on them. Moreover, this computation falls to be made by the owner at a point of time anterior to the accident.”
In Marshall v Gotham Co Ltd [1954] AC 360 (HL) at 373, Lord Reid said “as men’s lives may be at stake it should not lightly be held that to take a practicable precaution is unreasonable”.
(c)
Cost-benefit analysis
It can therefore be seen that the question at issue in interpreting the effect of such qualifications in a statute or regulation, namely whether a particular course of action is “reasonable”, involves a weighing of cost as against benefit. This will be a matter of fact in each case, and there is little specific guidance in law other than such principles as can be derived from the above two cases and other similar ones.
On the facts of Marshall v Gotham Co Ltd (above), the House of Lords held that it was not reasonably practicable for the employer to strengthen mine workings to protect against an unusual geographical fault, when the cost would have closed the mine. In Akehurst v Inspector of Quarries [1964] NZLR 621 (SC), however, it would have been reasonably practicable to protect quarry workers from the ordinary risks associated with quarries. It was held to be no excuse when the manager ignored those risks.
A cost-benefit calculation has been held not simply to be a mathematical sum: West Bromwich Building Society Ltd v Townsend [1983] ICR 257 (QB).
(d)
Buchanans Foundry
In Buchanans Foundry Ltd v Department of Labour [1996] 3 NZLR 112, [1996] 1 ERNZ 333 (HC) at 116, 337, John Hansen J referred to Edwards v National Coal Board (above) and stated:
“It is clear what the Act requires is that an employer takes all reasonably practicable steps to guard against potential hazards, rather than a certain, complete protection against all potential hazards.”
In this case the company had provided furnace workers with cotton overalls rather than flame-retardant overalls because the latter did not eliminate harm from significant molten metal splash. The District Court (Higgison v Buchanan’s Foundry Ltd DC Christchurch CRN5009006161, 14 December 1995) had held that in doing so the company deprived the workers of the enhanced protection that the flame-retardant overalls would have afforded from everyday hazards such as sparks and minor discharges from the furnace, and had failed to meet the requirements of s 10(2)(b).
John Hansen J allowed an appeal, on the basis that “it is not apparent on the face of the judgment that the necessary comparative exercise has been undertaken” (at 116, 338). The appellant had tested new materials and had taken safety advice from the Department of Labour. Once the District Court accepted on the evidence that the selection of any protective clothing involved a compromise between competing interests, it was necessary for the Court to undertake such a balancing exercise. In considering whether the appellant “took all practicable steps”, John Hansen J noted that no protective clothing was available that would protect against all identifiable hazards in the foundry; that the defendant had a safety system in place and had taken advice from the Department of Labour, which had not raised the issue of protective clothing; it had kept up to date with developments in the market and was proactive in trialling new protective clothing and equipment; and there were difficulties with the flame-retardant overalls. The Court noted that these were all factors to be taken into account and balanced by an employer when making its decision. The Court observed that the test of “all practicable steps” is “not a counsel of perfection by hindsight” (at 119, 342). Taking into account all evidentiary matters, “it could not be said that a reasonable man would have done otherwise, or that the appellant was not acting with reasonable care” (ibid).
(e)
Onus on defendant
The onus of establishing whether safety measures were “reasonably practicable” has been held to lie on the defendant: Cox v International Harvester Co of New Zealand Ltd [1964] NZLR 376 (SC); Akehurst v Inspector of Quarries [1964] NZLR 621 (SC).
(2)
“Harm” and “serious harm”
“Harm” means illness, injury or both. “Serious harm” is separately defined, and sch 1 to the Act prescribes serious harm as:
“1.
Any of the following conditions that amounts to or results in permanent loss of bodily function, or temporary severe loss of bodily function: respiratory disease, noise-induced hearing loss, neurological disease, cancer, dermatalogical disease, communicable disease, musculoskeletal disease, illness caused by exposure to infected material, decompression sickness, poisoning, vision impairment, chemical or hot metal burn of eye, penetrating wound of eye, bone fracture, laceration, crushing.
“2.
Amputation of body part.
“3.
Burns requiring referral to a specialist registered medical practitioner or specialist outpatient clinic.
“4.
Loss of consciousness from lack of oxygen.
“5.
Loss of consciousness, or acute illness requiring treatment by a registered medical practitioner, from absorption, inhalation, or ingestion, of any substance.
“6.
Any harm that causes the person harmed to be hospitalised for a period of 48 hours or more commencing within 7 days of the harm’s occurrence.”
See also the discussion of “serious harm” at [HS2.48.01].
(3)
Other definitions
“Phenomenon” is separately defined to include radiation. “Hazard” means an activity, arrangement, circumstance, event, occurrence, phenomenon, process, situation or substance (whether arising or caused within or outside a place of work) that is an actual or potential cause or source of harm. “Significant hazard” means a hazard that is an actual or potential cause or source of serious harm, or harm (that is more than trivial) that may have a severe effect depending on the extent or frequency of exposure to it. It also includes harm that does not usually occur, or usually is not easily detectable, until a significant time after exposure to the hazard. The importance of the last limb of the definition is that there are a number of diseases that only manifest long after exposure to the harmful substance has ended: a prime example is asbestos. The focus of the legislation is not only on substances that are currently known to be harmful but emphasises that there is a clear need to be alert in respect of substances that could, in the future, prove equally harmful. The link between illness and work has, however, only slowly become more widely recognised. Also, the reality is that there is a lack of reliable data about many substances in common use but about which there are already safety doubts (for example, many substances are suspected of being carcinogenic but there is no reasonable proof, and there is also an issue as to who should have to prove this).
HS7.03
Examples of environmental hazards
Growth of technology is an obvious area which may lead to identification of new hazards, and increasing attention is being devoted to this area. Technology has also led to change in work itself, with many traditional jobs being phased out and new ones created, often bringing new problems. For example, the greater number of women in the workforce in some occupations has increased awareness of the possibility of hazards to the reproductive system. The commercial “office” is also now regarded as an area where health problems can be caused, whereas this has previously been thought to be, and mostly was, the most benign of environments. Examples of occupational health hazards in that environment are: repetitive strain injury (RSI) or occupational overuse syndrome (OOS); suspected radiation from video screens and other electronic equipment; solvents and ozone in copying and other machines; and sick building syndrome.
Improvement in technology also now allows detection of minute traces of toxins in the environment, and there is a real issue about the extent to which the presence of minute traces of a very toxic substance like dioxin in, for example, milk cartons or toilet paper should be the concern of employers and employees in respect of this Act. In some instances the contaminant may be a general environmental problem as well as a workplace one, for example the presence of blue asbestos (crocidolite) insulation caused New Zealand Railways to withdraw its Silver Star passenger train (following industrial action).
HS7.04
Knows or ought reasonably to know
It is important to note the 2003 amendment to the definition of “all practicable steps” that is s 2A(2), which confirms, to avoid doubt, that a person required by the Act to take all practicable steps is required to take those steps only in respect of circumstances that the person knows or ought reasonably to know about. This amendment was recommended by the Select Committee to meet submitters’ concerns that employers could be held liable for situations over which they had no knowledge or control.
An example of the effect of the 2003 amendment can be seen in Nelson v Fletcher Steel Ltd ERA Auckland AA387/07, 10 December 2007, where the Authority dismissed a claim that an employer failed to provide a safe workplace, where Nelson suffered ischaemic heart disease. The Authority held that while the stressors of the work environment may have contributed to triggering the heart disease, it was not the cause. Rather, medical evidence suggested the disease developed over many years due to a number of contributing factors unrelated to work.
HS7.05
Nature of liability under ss 7-10
The importance of making every endeavour to comply with the crucial ss 7-10 is clearly evident. It is a prime objective of the Act that it “promotes excellence in health and safety management”, backed up by the sanction of the penal provisions.
In Roberts v Port of Napier Ltd DC Napier CRN3041009399, 14 June 1994, Judge Adeane emphasised that “a generally laudable attitude to work safety does not necessarily equate with complete absence of fault in relation to specific systems of work or specific working environments”. See [HS6.01–03].
In Department of Labour v Wastecare Ltd DC Palmerston North CRN5054008810, 23 October 1996, the defendant was convicted of breaching s 7. The defendant had a system in place (including safety committees) and it was accepted that there had been genuine attempts to address safety issues. However, Judge Toomey held that the system did not include the expertise and training needed to analyse the safety aspects of each part of the company’s operations, to observe and consider work practices engaged in by employees, or to contemplate the possibility of employees becoming involved in tasks not strictly within the requirements of their employment.
The fact that an expert has overlooked a particular hazard is not a defence. In Department of Labour v Northland Health Ltd [1997] DCR 611, the defendant had established safety procedures for a laundry as well as methods of addressing safety concerns. However, an unguarded nip point on a conveyor designed by an engineer, manufactured by experts and checked by the defendant’s safety officers was completely overlooked. An employee suffered a crushing injury to her arm. A guard was subsequently placed on the roller without difficulty and the Court convicted the defendant of breach of s 6.
The strict liability approach has been applied: see the commentary to s 50.
The hazards may include risk of injury from other persons in the workplace or from occupational disease. In Department of Labour v Community Living Trust DC Hamilton, 29 November 1999, Judge Rota commented that there is a high onus on those who take into care people who are volatile and unstable and employ others to care for them. In this case a caregiver, who was seriously injured by a patient in the defendant’s care, was awarded the full $10,000 fine.
In Department of Labour v AFFCO New Zealand Ltd DC Tauranga, 2 November 1999, Judge McKegg convicted and fined the employer $3,000 for failing to ensure that the employee had been given information regarding the dangers of leptospirosis, and the steps to be taken to minimise the hazard.
In Department of Labour v Prime Range Meats Ltd DC Invercargill CRI-2006-025-335, 24 April 2007 at [6], Judge Flatley found that the employee had not received any training or information about leptospirosis and did not know how to guard against it. The Court fined the employer $6,000 for breach of s 6 and awarded $13,500 reparation.
HS7.06
New hazards
In Department of Labour v Eaden [1995] DCR 801, Judge Abbott observed:
“[It] is important to emphasise at the outset that the Act requires a complete change in attitude on the part of employers. It is no longer acceptable simply to react to hazardous situations as and when they arise, because s 7(1)(b) makes it clear that an employer must be proactive and must have a system in place so that new hazards can be identified as or even before they arise.”
In this case the defendant hired in a forklift and employed casual staff. The employees suffered carbon monoxide poisoning from using the forklift in an inadequately ventilated area and it was apparent from the evidence that the defendant had given no thought to this possibility. The Court observed:
“Such an approach to arrangements regarding equipment may be justified in a commercial sense, but there is a corresponding duty on an employer in such circumstances to ensure that the equipment which is to be used is safe and does not result in any new hazards to employees.”
A rather different approach was taken in Department of Labour v Eltin Contracting Ltd DC Dunedin CRN7012015710, 22 May 1998, where Judge MacDonald observed that ss 7-10 “dealt with situations where the existence of the hazard was already known”. With respect, the authors do not agree that this is a correct interpretation of s 7, which is not limited to existing recognised hazards but requires employers to systematically identify new hazards.

From Employment Law - Occupational Safety & Health

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