News
The high cost of health and safety
First published in The Independent, 16 October 2008.
One of the more thought-provoking documentaries from the last festival season was a work by Canadian film maker Edward Burtynsky called Manufactured Landscapes.
It is the story of a landscape photographer who turns his lens to industrial sites, creating bizarre – and sometimes beautiful – pictures from scenes of industrial waste and gloom.
One of the film's scenes involves an examination of a workplace in Bangladesh where tens of thousands of workers beach enormous oil tankers, and then dismantle them by hand for their scrap metal.
In this work environment, safety is a foreign concept. Harnesses and safety goggles are unfamiliar. Injuries (and death) are frequent.
Watching this type of work makes one realise that New Zealand's standards for health and safety have real meaning for workers in our industrial environments.
Although compliance with health and safety requirements occasionally seems harsh – and penalties occasionally brutal – adherence to appropriate levels of safety in the workplace serves to fulfil an important social goal. A recent case illustrates the consequences that follow a breach of those health and safety requirements in New Zealand.
The case is Department of Labour v Streetsmart Limited (Unreported, High Court, Hamilton, 8 August 2008) and involves possibly the most tragic scenario that one can imagine.
Street Smart is in the business of collecting and managing refuse and recyclable rubbish. It operates trucks which perform a curb-side collection service.
In December 2006, Streetsmart purchased a truck that was designed for recycling collection. This meant that it was set up to be loaded from the side (rather than from the rear – which would be the norm for a rubbish collection truck) and had steps leading up to an alcove just behind the cab. There was a handrail on the side of the steps nearest to the front of the truck.
Put simply, the arrangement was not intended to allow for a worker to ride on the side of the truck while it was moving. The recycling truck was, in fact, intended to be used by a sole driver operator – meaning that the truck would always be stationary when the worker was loading rubbish into the side.
The recycling truck was, however, used by Streetsmart for the collection of rubbish. When it was used in this way, three employees staffed the truck – one to drive, and two of whom collected rubbish (and deposited it in the back of the truck). Streetsmart had planned to modify the truck to make it safe for this use but over the busy Christmas/New Year period it didn't find time to do so.
The driver of the truck was Mr Houia. He had signed a Code of Conduct which stipulated that non-employees could not travel in the truck. Despite this, however, it came to Streetsmart's attention that Houia's 13 year old son had been accompanying him on his rounds. Houia's Manager contacted him and told him that his son could not work on the truck.
Just over a week after this direction, however, Houia allowed his son to accompany him once again. Despite his father's protests, the boy decided that he would help the "runners" by gathering rubbish.
After grabbing a rubbish bag the boy attempted to jump onto the step behind the cab, just as the truck jerked forward. He was unable to maintain his grip on the handrail and fell into the gap adjacent to the step. Tragically, he was run over by the truck and killed.
This is must be a worst case scenario.
It involves a fatality which could have – and should have – been avoided. And, to add to the tragedy of the situation, the incident resulted in a father causing his own son's death.
The Department of Labour investigated the incident, and brought a prosecution against Streetsmart – as the employer. The District Court concluded that the company's culpability was at the higher end of the scale. It found that Streetsmart had knowingly put on the road a defective vehicle in a dangerous condition for use by its employees – and that it had turned a blind eye to a boy being in the truck and carrying out the work of a runner.
The company argued that Houia should share part of the blame for the fatal injury. This submission was, however, rejected on the basis that part of the purpose of the health and safety legislation was to protect employees from their own stupidity and wilful neglect. The company had known the boy was accompanying his father on the truck – and it could have acted to stop Houia from disobeying its directions.
Streetsmart and Houia attended a restorative justice conference. It was agreed that, subject to the court's approval, reparation of $60,000 would be paid by the company to Houia.
That may seem like an odd outcome – but it is one which is consistent with the principles of the law. Having found the company at fault, it was then open to the court to order a payment to be made to the grieving family in respect of the loss caused by the company's breach.
The remaining issue in the case related to the level of fine for the company. At the District Court, in addition to the $60,000 ordered for reparation, a further $55,000 was ordered to be paid.
This aspect was appealed to the High Court, which increased that figure to $87,500.
Overall, therefore, the company suffered a financial burden of $147,500 in respect of this incident. The maximum fine in respect of the matter would have been $250,000.
In reaching her views, the High Court Judge stated that workplace accidents are a cost to, and burden on, the community. In her view, the purpose of the legislation, particularly when considered against an individual's inability to sue for personal injuries – was to promote and enforce workplace safety. Consistent with that objective, the judge considered that penalties for such incidents as this must "bite" and not simply be viewed as "licence fees".
This case operates as a sound reminder about the need for employers to take all reasonable steps to ensure the safety of their employees at work.
