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Will your Health and Safety Policy save you from prosecution?

The metal stake had pierced his right side, gone through his torso and was now protruding from his stomach. Surprisingly there was very little blood but his ear piercing scream was enough to alert everyone on the building site.

Jason was only 15 and shouldn’t really have been on the site. His Dad could only look over his body mortified as the emergency services cut the stake and took Jason to hospital.

Why Jason was on the building site

Jason’s father was contracted by Buildco as a labourer on their new apartment development in the city. It was school holidays and Jason’s Dad decided to take Jason along to work. He knew it wasn’t strictly allowed but Jason looked older than 15 and was a responsible kid.

The metal stakes were protruding from the newly laid foundations of Block C. Whilst the stakes themselves weren’t protected the whole area was cordoned off and those working on the site knew to stay away. Jason, however, was a curious kid and when his foot slipped off the raised platform he toppled onto the stake falling on his back.

It wasn’t long after the accident that OSH were on the site asking questions.

OSH decided to target Buildco

Whilst Jason was very lucky not to die, if the stake had been one inch to the left it would have pierced several vital organs. OSH were keen to lay fault with someone and as the owner of the site and the employer of those working on it, Buildco were the obvious targets.

Under the Health and Safety in Employment Act 1992 (as amended), employers and people who control places of work are under various legal duties. Some of the most important ones are:

To identify and eliminate / minimise hazards
To operate a safe system of work
To warn of hazards

The consequences of not complying with these legal duties can be serious and include a fine of up to $500,000 as well as a criminal conviction. Neither were a consequence Buildco could afford to suffer.

How to avoid the cost of prosecution

Fortunately, Buildco were a responsible employer and were aware of their legal duties under the HSE Act. To comply with their duties they had put together a comprehensive Health and Safety policy which included the requirement to have a hazard register, accident register and a safety induction for everyone entering the site. Everyone working on the site was very familiar with the policy.

The policy itself addressed the hazards likely to be found on the site, how to prevent accidents happening and what to do if an accident did happen.

What this meant in Jason’s case

Buildco had a policy that only persons over 18 who had successfully completed their safety induction would be allowed onto the site. Entrants to the site were monitored using a sticker attached to their hard hat which confirmed that the person had completed the course. Jason’s father had borrowed a colleague’s hard hat to get Jason onto the site – he knew that the site foreman wouldn’t let Jason on without the sticker.

After a full investigation by OSH the charges against Buildco were withdrawn. OSH agreed with them that they had taken all reasonable steps to ensure safety on the site and that fault firmly lay with Jason’s father.

Follow Buildco’s example

Some may say that Buildco were lucky not to get prosecuted. But it wasn’t luck that stopped the prosecution in its tracks – it was the implementation of a thorough health and safety policy which Buildco were able to produce to OSH investigators after the accident. Without that detailed written policy things could have been very different.

Do you have a professionally prepared written Health and Safety Policy for your workplace? If not you could be risking not only accidents but also an OSH prosecution. If you need help putting together a such a policy then email me at: michael@approachablelawyer.com

The characters and events in this case study are fictional. If you would like reprint rights to this article then I would be happy to provide them providing due credit is given. To obtain permission call me on: 09 358 2725.

© Michael Smyth. Would you like to use this article in your newsletter, on your website or in your magazine? If so, I would be happy to give you permission. Simply click here to find out how you can use this article

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