by Rebecca McLeod, Senior Associate
In September 2013 Mr R a long standing employee of milling Company W, lubricated a piece of machinery while it was still running. Unfortunately his hand got caught and his fingers were badly injured.
The first breach of safety policy
On the day of the incident the mill had run out of timber so Mr R decided to carry out maintenance work on the conveyer system and saw. Against Company W’s safety policy he decided to do the work without a buddy. He did however switch off the power to the machinery at the main switch, push in the emergency stop button on the control panel and place the “hold card” above the emergency stop signal.
The second breach
He then went inside the safety fence and worked near the feed tray of the conveyer system, tightening bolts and carrying out maintenance. He decided to grease the horizontal chains and turned the machinery back on – again a breach of safety policy. After completing the horizontal chains he decided to grease the vertical chain and sprocket which was not part of planned maintenance. These particular parts were never intended to be lubricated.
He placed a rag behind the vertical chain and sprayed lubricant at the moving chain. The chain caught the rag and dragged the rag, and Mr R’s hand to point where the chain meets the sprocket, causing serious injuries to Mr R fingers.
Whilst Mr R (who was previously a member of the health and safety committee) accepted that he breached Company W’s safety rules and that he was responsible for the injury, Company W was prosecuted by WorkSafe under section 6 of the Health and Safety Employment Act 1992 for failing to take all practical steps to ensure Mr R’s safety while at work.
WorkSafe claimed that Company W had failed to put in place three safety measures by:
- Failing to ensure a guard covered the vertical chain and sprocket; and
- Failing to cordon off the machinery area with a secure fence; and
- Failing to ensure that the curtain light system turned off the machinery when someone entered the area around the machine.
The District Court Judge found that because the machinery was unguarded on the day, it was not even necessary for the machinery to be running for Company W to have failed to take all practical steps to ensure Mr R’s safety whilst at work. If it presented a potential hazard at that time, that was sufficient to be a breach of the Act.
Reasonably forseeable risk
The Judge concluded that without a guard over the chain and sprocket, and without a sufficient fence guarding the machinery or a system which turned the machinery off when someone entered the area, there was a reasonably foreseeable risk that Mr R could come into the contact with it.
Company W was convicted and fined $40,000.00. It appealed its conviction, arguing that that the charge was too broad and failed to focus on the circumstances and events of the day when Mr R injured himself.
The Company argued on appeal that whilst there were particular maintenance tasks that Mr R was required to undertake, this did not include the vertical chain and sprocket. The Employer therefore could not have reasonably anticipated Mr R lubricating the vertical chain and sprocket as it was not something he had ever done before. Also Mr R had not previously breached safety polices. The Company argued that it could not be held liable for the accident, as it was unexpected and unforeseen.
The High Court dismissed the appeal satisfied that the District Court had reached the correct conclusion.
The High Court found that the charge under section 6 could have been made out on any day, given the lack of guard on the vertical chain and sprocket.
There did not need to be a link between the breach of the statutory duty to ensure the employees’ safety and any injury for the Company to have failed to meet that duty.
The objective of the Act is to require employers to take all practical steps to ensure employees are not exposed to hazards in the workplace, regardless of whether or not this causes an injury.
The High Court reminded the Company that even trusted and experienced employees could foreseeably take short cuts and fail to use common sense when working on machinery.
Of course this Act has now been replaced with the Health and Safety at Work Act 2015. The obligations on the employer are no less stringent under this new Act and we would encourage you to assess your workplace risks and seek if advice if you are unsure.