On all 'practicable steps' and health and safety practices

7 April, 2015

Recently, solicitors Mark Campbell and William Findlay of Russell McVeagh responded to an editorial I had written that questioned WorkSafe’s decision to prosecute the Ministry for Social Development for a shooting in Ashburton.

The case involved an individual who wordlessly walked into a Work and Income office with a shotgun, killed two people and seriously injured another, and then walked out. The suspect is believed to be a 48 year old homeless man who has a long-running dispute with Housing New Zealand over his inability to secure state-funded accommodation.

Campbell and Findlay note that under the current legislation, where employers are required to take all measures possible to prevent a workplace injury, WorkSafe’s actions may be appropriate given the man’s history. The essence of the matter is whether MSD did everything in its power to stop the shooting from happening, given its history with the man.

They also spell out the lessons from this case for other business owners: get your health and safety house in order for any potential workplace risk or face the wrath of a “well[-]resourced and funded regulator”. Campbell and Findlay warn that the costs of doing otherwise can be significant when factoring litigation costs, lost productivity and fines.

In short, given these liabilities, the moral is that no risk is too small or insignificant that business owners shouldn’t take all steps to avoid it.

In this, Campbell and Findlay are absolutely correct, since the current law states that employers have to take “all practicable” steps to avoid a workplace hazard.

What they fail to address is whether this measure is appropriate at all, since “all practicable steps” covers a significant amount of ground.

It could easily be argued that putting WINZ staff behind bulletproof glass, arming existing security guards, and searching each welfare recipient who visits the office is practicable. If that argument holds up, these measures would presumably need to be rolled out across every WINZ office in the country, at considerable cost to the taxpayer.

Indeed, it might set a safety precedent for any customer-facing business that is likely to meet a disgruntled member of the public – all to prevent a risk that has an estimated 0.001% chance of occurring in a year based on 2012 figures.

The law as it stands ignores the likelihood of the risk occurring (an extensive Google search failed to show any other WINZ shooting), or the cost imposed on a business. It only considers a potential harm.

Under “all practicable steps” you could argue that all fleet owners must make their cars so safe that a crash will not result in the loss of an employee’s life, but at a hypothetical cost of say $1 million apiece, only a handful of firms could afford to roll them out.

The law, as it stands now, opens the door to the dreaded “elf and safety” madness seen elsewhere in the developed world. It is simply not fit for purpose, and an example of regulatory overreach.

Luckily for us, politicians in the Beehive have spotted the mistake, and are looking to correct this with the introduction of the Health and Safety Reform Bill. Admittedly, this is a development I was not aware of at the time the first column was written.

The new law will require all “reasonably practicable” steps to be taken to ensure health and safety in the workplace. This includes factoring in the likelihood of a hazard occurring, the degree of harm should the hazard occur, whether the person concerned ought to reasonably know of the risk and ways of eliminating it, and have the means to do so.

Importantly, after considering all the above, the law requires that the costs associated with all the available ways of eliminating or minimising the risk be considered, including whether the cost is grossly disproportionate to the risk.

Using the car example again, building a $1 million automobile is not reasonably practical in my opinion, but further driver training, use of technology to monitor driver fatigue, and strict rules on how long an employee can be behind the wheel are a different matter altogether.

The new approach proposed by the amendment is a far more nuanced view of hazards, one that seeks to measure the benefits against the costs, but still with the goal of reducing injuries and death in the workplace.

In the end, the new regime might require WINZ to implement the same safety measures as the initial one would have, with safety glass, armed guards and metal detectors. But at least the decision would have gone through a robust analysis that takes multiple factors into consideration, not just an over simplistic view that no potential for harm should be allowed to exist in the workplace.

I cannot fault Campbell and Findlay for pointing out the risks that businesses face under the current regime – they are after all practitioners of the law as it stands. Likewise for WorkSafe, with the regulator just carrying out its legislatively mandated duty. But as Charles Dickens wrote, the law can sometimes be an ass. Luckily it appears the political machinery has had the wherewithal this time to spot the mistake before too much harm was done.

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