Liability under New Zealand health and safety legislation is strict but not absolute. The recent case of Department of Labour v Wallace Investments Limited (Unreported, District Court at Auckland, FWM McElrea J, 28 May 2008) demonstrates this fact. The case involves stevedores at Ports of Auckland. It illustrates the level of supervision and instruction required of employers to defend charges of failing to take 'all practicable steps' to ensure the safety of employees at work.
Wallace Investments Limited (Wallace Investments) operates a stevedore operation at the Ports of Auckland. In July 2007 while unloading containers from a ship, a Wallace Investments employee sustained severe injuries to his leg when he fell 2.6m from a shipping container.
The accident occurred when the employee was removing twist locks from the corners of a container. One twist lock could not be removed from the base of the container which had been landed on the wharf. The employee was lifted in a safety cage to the top of the container and stepped out onto the top. He successfully removed three of the locks on top but while attempting to remove the last lock the container tilted and the employee lost his balance and fell. The container tilted because of the combination of the shifting of weight by the employee, the twist lock remaining on the underside of the container, and the failure to otherwise stabilise the container.
Failure to take all practicable steps?
Wallace Investments was charged with an offence under section 6 of the Health and Safety in Employment Act 1992 (the Act) which says:
'Every employer shall take all practicable steps to ensure the safety of employees at work...'
To comply with the Act, employers must show they have identified hazards and provided the necessary safeguards, supervision, training and instruction to prevent their employees being harmed. Upon conviction an employer may be ordered to pay compensation to the employee and fined up to a maximum of $250,000.
The evidence in this case was that Mr Van Aalst, the sole director of Wallace Investments was particularly rigorous in implementing safety procedures which had been introduced to address the particular hazard in this case. The procedures had been introduced after the hazard had come to light following a similar accident six months earlier. The judge held that Wallace Investments had taken adequate steps to deal with the hazard including the fact notices advising employees of the hazard featuring photographs had been prominently displayed and adequate supervision was put in place at the site.
The judge appears to have been particularly taken with the practical nature of the safety briefing personally given by Mr Aalst before the incident. The briefing had involved a demonstration on how to use wooden wedges to secure containers prone to tilting if all twist locks could not be removed from the base of containers. There was also a demonstration on how to carefully kneel on the container to maintain balance. The judge was plainly impressed by Mr Aalst's personal commitment to the issue and the fact he had not merely relied upon written warnings or instructions to minimise the risk of harm.
The Health and Safety Inspector contended that Wallace Investments had not taken all reasonably practicable steps because the company had failed to ensure their employees were aware of and followed all the procedures.
His Honour Judge McElrea made it clear that in some circumstances it is not reasonable or possible for an employer to ensure that its employees are aware of and followed all procedures. His Honour stated at  of the judgment that:
'...it is not humanly possible for an employer to ensure (that is, make certain) that all employees do what they are told. It is not humanly possible unless there is supervision of every single person and perhaps even supervision of the supervisors. Business cannot operate in that way and it is not a reasonable step.'
His Honour said the phrase 'ensuring that employees follow procedures' is like asking employers to guarantee that there will be no accidents. He considered that the phrase by definition is an unreasonable request.
Although under the Act there is an obligation to do everything practicable to instruct staff properly and thoroughly, 'ensuring employees follow procedures' can be an impossible task.
The judge's acknowledgement in this case that there is a realistic limit to ensuring employees take all practicable steps is a welcome reminder that although the standard required of employers is high, it is not absolute. Diligent employers who take injury prevention seriously may still have a defence to charges in the event of accidental injury. This is all the more important given a perception that awards of reparation to victims of injury have steadily increased in recent years. It is also significant considering the Department of Labour's stated intent at raising the level of fines imposed by the courts to levels which better reflect the five-fold increase in the maximum fine introduced in 2003.
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