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CONTENTS
Clarifying changes
in HASIE Amendment Act 2002
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Mark Avery of Teemay Consultants spoke on changes to
the Health and Safety in Employment Act 1992 at the 7-8 August 2003
Local Authorities Workshop in Palmerston North :-
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Dispelled misunderstandings relating to requirements under the
"Health and Safety in Employment Act 1992" (and the recent
Amendment Act 2002);
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Explained what 'strict liability' means;
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Clarified the health and safety responsibilities and liabilities of
the Local Authority as a Principal - and as an employer;
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Explained the health and safety requirements of the Local Authority
in evaluation of tenders for planned physical works - and in managing
related contractors.
(12/8/03)
If you would like to have Mark explain anything about the new health
and safety requirements that have featured in the HASIE Amendment Act
2002, please click here for the Visitor
Enquiry Form which will take you to the end of the NEWS,
VIEWS and YOUR Q's web page.
WHAT IS REASONABLY
PRACTICABLE ?
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The Health and Safety Employment
Act 1992 (HASIE Act) defines "All practicable steps".
Unfortunately, the definition
set out in Section 2 of the HASIE Act can be confusing to understand.
To understand the definition
more clearly according to case law, insert the word "reasonably"
wherever "all practicable steps"
appears in the HASIE Act - so that it reads "all
reasonably practicable steps".
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What does "all reasonably
practicable steps" mean ?
There is a clear distinction
between the word "practicable" and the phrase "reasonably
practicable".
Case law sets out what is "practicable",
and what is "reasonably practicable".
Measures may be practicable
which are not reasonably practicable (Marshall v Gotham Co
Ltd, supra, at 372, 942, per Lord Reid) but nonetheless,
"practicable" means something other than physically
possible. The measures must be possible in the light of
current knowledge and invention. Adsett
v K and L Steelfounders and Engineers Ltd (1953)
"Reasonably
practicable" is a narrower term than "physically
possible" and implies that a computation must be made in which
the quantum of risk is placed in one scale and
the sacrifice, whether in money, time or trouble, involved in the
measures necessary to avert the risk is placed in the other;
and that, if it be shown that there is a gross disproportion between
them, the risk being insignificant in relation to the sacrifice, the
person upon whom the duty is laid discharges the burden of proving
that compliance was not reasonably practicable. This
computation falls to be made at a point of time anterior to the
happening of the incident complained of. Edwards
v National Coal Board (1949)
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If there is a method
available under
current knowledge and invention, to overcome a significant hazard,
then that method
is practicable.
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If the method is practicable,
then it must be taken
if the law requires that - regardless of the cost.
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If a method is reasonably
practicable - it
must be taken unless
it is unreasonable to have to meet that level of cost.
When the law requires an
employer to take all reasonably
practicable steps to
manage a hazard, the employer is obliged to take those measures
unless the employer can show that it would be unreasonable to take them.
That would require the employer
to show that there would be a gross disproportion between the costs
and the benefits realised by taking an indicated measure - the
benefits being relatively insignificant compared with the costs.
If an employer cannot prove that
gross disproportion, the measures must be taken.
In other words, it is not a
matter of being cost effective when a hazard needs to be managed.
The employer must take the appropriate measures unless there is that
gross disproportion as
explained above.
(Reference: Pages 46-49 "Health
and Safety Laws at Work: Key Issues" by
Mark Avery, Teemay Consultants, Wellington NZ, 1993)
11/7/03
HEALTH
AND SAFETY LIABILITY
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Vicarious
liability
Because the
laws of vicarious liability are very precise, all of us need to
understand them.
Vicarious
liability is quite simple. The master is liable for any
misdeeds (or omissions) on the part of the servant; misdeeds
carried out in the course of the servant's employment with the master.
The employer
and all of his workers shall so conduct themselves that no person is
injured; and if they do not and another is thereby injured, the
employer shall answer for it.
In other
words, management is held liable for the actions (and omissions) of
their workers.
In the concept
of the master and the servant relationship, any employee that
management has, is the servant. Any contractor that
management takes on board, is also the servant. Any sub-contractors,
sub-sub contractors that are taken on by the contractor, going right
down the hierarchy; they are all the servants of the management
that first engaged the contractor.
The
employer is liable for all activities at the place of work.
Since the law
requires that no person employed in or about a place of work shall,
without reasonable cause, do anything likely to endanger himself or
any other person; it is clear that vicarious liability
also applies to practical jokes, skylarking and perk jobs, as much as
it does to formal work activities.
(Extract from
Page 15: "Health and Safety Laws at Work: Key
Issues" by Mark Avery, Teemay Consultants,
Wellington NZ, 1993)
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Question
1:
You
send one of your employees to help and work under the direction of a
third party. How does that affect your liability ?
Answer:
If you, as an employer, direct your employee to go, you take on to
yourself, liability for the actions of the third party as if that
person was a fellow servant with your own employee.
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Question
2:
To
what extent can health and safety liability be transferred by the
wording of a contract ?
Answer:
Zero (10
August 2002)
VOLUNTARY
WORKERS
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(Note:
HASIE Act = Health and Safety in Employment Act 1992)
So long as an
employer has given consent for a voluntary worker to be present and
to assist, then the voluntary worker must be treated the same as an
employee in terms of health and safety.
The following
may help to clarify the situation, but if you are still in any doubt,
contact me (Mark Avery), so that I can clarify the issues.
New Zealand
is under the Westminster legal system, as are England, South Africa,
India, Australia, Canada (except for Quebec), and most states of the USA.
Case law,
precedents and legal principles, are full transportable between
all countries under the Westminster legal system.
Under the
Westminster legal system, the following factors are well established.
(Please
forgive the gender, but legal texts are basically written in the male
gender - no discourtesy is intended.)
The master
/ servant relationship exists when the servant agrees to work for
the master, and the master has agreed to reward the servant for that work.
The reward can
be any consideration, money, food, lodgings, indeed any agreed exchange.
The master
is duty bound to take reasonable care for the health and safety
of his servant.
A volunteer
is one who offers their time, services, or other assistance, without
expecting any reward.
When a
volunteer offers, or requests permission, to assist the servants
of another and is engaged as a voluntary worker on the consent of the
master, then the volunteer becomes a fellow-servant with the other
servants of the master.
If on the
other hand, the voluntary worker was engaged as a voluntary worker
without any authority or consent at all from the master, then he is,
in legal strictness, a trespasser.
So long as
the master has the prior opportunity, and has agreed that the
voluntary worker may be present and perform some work, service, or
assistance, then a master / servant relationship is established.
The master
is then duty bound to care for the voluntary worker in exactly
the same way as he must care for his other servants - or
employees. He is also liable for the acts or omissions,
of the voluntary worker in he course of the voluntary work, so long
as the master / servant relationship exists.
This includes:-
- if that is
what is needed to maintain a work environment that is safe, and to
prevent harm to any employees at work; or to other persons who
are not employees (Section 15 of the HASIE Act 1992).
It is the
wider context, the master / servant relationship, that matters
under the Westminster legal system.
The
narrower concepts of employer / employee, principal / contractor,
working for gain or reward, are stated under the HASIE Act 1992;
but that does not limit the longstanding legal principles, and the
master / servant relationship that I have outlined above. (16 June 2002).
This
commentary by Mark Avery is a reprint of an earlier comment by Mark
in the NZISM President's newsletter, 17 February 1997 - during his
term as President of the New Zealand Institute of Safety Management (Inc).
INDUCTION
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Whenever you have a new worker commencing employment with your
company, it is a reasonably practicable step to provide an induction
period where the worker is trained in the health and safety
procedures of your company.
Contact your video training company and get a catalogues of their
health and safety training videos.
At your video session, ask your co-workers to also attend the
session. In this way, your co-workers become involved, are
reminded of the sensible procedures to take, and can pass on their
support by answering any questions that the new worker may have.
By the end of the session, a good discussion usually results with a
memorable induction into the new place of work, using all of the safe
procedures that have been realistically illustrated via the video and
training sessions.
18/2/02
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