Beware fallout of on-farm accidents

By Jennifer Borrett, Solicitor

First published in the Rural News, 22 October 2009

The Health and Safety in Employment Act 1992 promotes the prevention of harm to all people at work and others in a place of work. It places a duty on employers to take all reasonably practicable steps to ensure their own safety and that of others. It also provides a range of enforcement methods in cases of non-compliance and the penalties being imposed by the Courts are severe.

Rural activities are not immune from the tentacles of the Department of Labour. The construction and agriculture, forestry and fishing industries account for around 36% of all work-related injury claims, despite making up only 30% of the workforce.

Many people have the impression that the Department of Labour prosecute every time a breach of the Act occurs. They would be surprised to learn that fewer than 4% of investigations resultin prosecution. More frequently, the information gained during an Occupational Safety and Health Service (OSH) investigation is used to establish trends and assist with developing strategies to minimise the risk of particular hazards or across industries.

A recent example of a rural situation where a prosecution did not follow an investigation involved an accident which occurred on a farm in the South Island when a young, inexperienced farm worker sliced through his gumboot with a brushcutter, cutting off his small toe and damaging the next toe. The employerworked closely with the Department of Labour to promote workplace safety on farms and to highlight the necessity to maintain comprehensive and up-to-date health and safety policies and procedures.

In another recent case(outside the rural sector), charges were withdrawn against a Canterbury company whose employee was fatally injured while at work. It was clear that the industry standards which the company had been following were inadequate to protect employees from the type of injury which occurred. The company now intends to work with the Department of Labourepartment to formulate more robust standards to be applied across the industry and to educate employers to help to ensure such incidents do not reoccur.

So what should you do if one of your employees is seriously injured in the workplace?

The scene of the accident should be preserved as is. The accident must be notified to OSH immediately. In addition a report which outlines the circumstances of the accident must be forwarded to the Department within 7 days.

If you have a Statutory Liability Insurance Policy (and every farm business should have such cover), your insurance company should also be notified as soon as possible.A lawyer willbe appointed to act on your behalf. Statutory liability insurance policies provide protection to employers for defence costs associated with alleged breaches of the Act, including the costs of legal representation at an investigation or inquiry. Any reparation award against the defendant will also be covered.

When OSH is notified of a serious accident, a Health and Safety Inspector will attend the workplace to determine whether there has been a breach of the Act. The lawyer appointed by your insurance company should attend this meeting with you. It is important to have legal advice during the initial stages of an OSH investigation; often employers and other employees are in a state of shock and are feeling extremely remorseful about what has occurred and, in such circumstances, they can make some very damaging admissions. It can sometimes be difficult to immediately identify the cause of the accident and statements made during these early stages may not always be accurate. Legal advisors will ensure that any statements made to OSH during this time (whether formal or informal) do not compromise the company’s position.

If the Inspector believes that there may have been a breach of the Act, he/she will conduct formal interviews with the staff. Staff members are not required to agree to an interview; it is entirely over to each individual. On the other hand an Inspector can compel someone with sufficient knowledge of the company’s policies and procedures to answer questions and provide documents on behalf of the company. Formal interviews will be conducted under caution, meaning everything that is said can be used as evidence against the company and/or an individual. It is important to co-operate with OSH during this process but this does not necessarily mean answering all questions at all costs; the company representative is entitled to decline to answer questions which may incriminate the company.

Once the investigation has been completed, the inspector will compile an accident report and make a recommendation about whether charges should be laid against the company and/or an individual.

Research shows that employers are generally very satisfied with the overall handling of OSH investigations believing they are conducted fairly and achieve fair outcomes.

The investigation process can be a valuable opportunity to gain insight into the adequacy of your current policies and procedures and to re-evaluate and improve. With adequate legal advice, this need not come at the expense of your company or its reputation.

Jennifer Borrett is a solicitor in the litigation team at national and trans-Tasman law firm Duncan Cotterill. J.borrett@DuncanCotterill.com; www.DuncanCotterill.com

Location http://www.duncancotterill.com/index.cfm/1,159,587,-1,html