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Recent health and safety cases hold important lessons for employers

13 May 2015


Two recent health and safety cases highlight important lessons for employers to learn from.

Nathan Brooker suffered from profound intellectual disabilities, cerebral palsy and spastic quadriplegia. He also suffered from epilepsy and was paralysed down the left side of his body.

On 10 January 2013 he was in the care of Idea Services. Idea Services is the service arm of the IHC. They provide individualised care to disabled people. IHC is a not for profit organisation, provides a wide range of services  to over 750 group homes, and supports approximately over 7000 people.

On the day in question there were just two support workers.  At 8.30pm that night, Nathan had his bath and was placed in a sling to support him during the bath. During Nathan’s bath, both staff were called to address the needs of another child. The support worker reported that they checked on Nathan approximately three times while he continued his bath. 

At around 9pm, the support worker went to check Nathan again and found him submerged in the bath. The staff started CPR and called an ambulance. Sadly, Nathan did not regain consciousness and died just before midnight that evening.

Idea Services was charged under the Health and Safety in Employment Act 1992 with failing to ensure that no action or inaction of an employee while at work harmed any other person. The court was critical of the steps Idea Services had taken to ensure no harm came to Nathan.

However, Idea Services did have policies and instructions addressing this risk. Nathan’s care plan stated that he was to be supervised at all times. His alerts and crisis response form stated that he was unable to get himself in and out of the bath, that supervision was required, and that he was unable to be left alone. Idea Services also had operational requirements and policies which included never leaving children unsupervised while in the bathroom area.  A specific bath policy also stated that support workers should always be present when a person was bathing.

However, the prosecutor’s investigation found that more steps should have been taken. The risks of giving person sedatives prior to bathing were not identified. The specific risk of Nathan drowning was also not identified. While his personal support information stated that he required “full support”, this was not expanded upon or defined.

The Court placed great attention on the fact that “full support” was not defined. The Court noted that not all children at the facility required full or direct supervision while they were bathing. Furthermore, the requirement for full supervision was in conflict with staff instructions to afford clients privacy.

It was important for Idea Services to have looked at the individual needs of each child. The Court found that explicit and precise instructions should have been provided for bathing each particular child.

While the support workers had eight years’ experience they both had different understandings of how long Nathan could be left in the bath unattended. The Court found that in practice, the children’s behaviour occasionally necessitated support workers being called away from the bathroom.

Employees were not formally monitored by Idea Services. Idea Services acknowledged that a “regrettable practice” had evolved which lead to young dependent people being unsupervised for short periods of time. The Court held that Idea Services had a responsibility to know that this practice had developed and to address it once they were aware of it.

The family of Nathan Brooker were awarded $90,000 for the emotional harm they suffered. Idea Services was also fined $73,500.

The Court acknowledged that Idea Services previously had a good record and no infringements or notices had been given against the company. It had also made its own offers of reparation before the award was given. The Court also found that Idea Services had genuine remorse about the incident.

This case demonstrates that that even the best companies with the best of intentions can be liable for breaches of health and safety.

Idea Services had made attempts to protect the safety of clients and developed policies to meet this end. However, it is apparent that this was not sufficient to discharge them from all their duties. Employers must be careful to ensure that policies provide clear instructions. General policies may not always be sufficient.

Instead, policies and instructions should be adapted to adequately meet the demands of specific risks of harm. Employers should monitor their policies and be aware of circumstances which may require departures from current policy and address these situations.

It is interesting to note that the Court emphasised that the charges did not relate to the actions of an employee. However, another recent case has shown that developing policy will place greater liability on people personally.

Arthur Britton, director of Britton House Movers Limited, has been sentenced to home detention following offences he made under the Health and Safety in Employment Act 1992.

On 18 December 2013, Britton House Movers Limited was transporting a house to Herbertville. Mr Britton was the foreman of the contract. As the house was being taken down a road, the house made contact with a power line. The power line snapped and fell onto the roof of the house. The power line was live and uninsulated.

The convoy stopped and one of Mr Britton’s employees climbed onto the roof to remove the cable. The employee was wearing no safety equipment, and used a wooden stick to move the power line onto a roadside drain. Mr Britton was next to the employee at the time, but did not instruct the employee to do this but nor did he tell the employee not to.

The company did not notify anyone about the incident.

A local farmer later moved stock down the same road. Seven sheep were electrocuted and two dogs met the same fate.

The farmer himself was lucky not to be electrocuted. Having seen the sheep, he attempted to grab one of the sheep before being pulled back by his assistant. It was this same farmer who notified the authorities of the incident, not the company.

While miraculously no person was harmed, Mr Britton was sentenced to 4 months home detention. The company was fined $60,000 in total for each of the four charges laid.

Under the new Health and Safety Reform Bill, these types of sentences are likely to increase in quantity as greater emphasis will be placed on people personally to meet health and safety obligations.

Cullen - The Employment Law Firm is one of only eleven law firms in New Zealand approved to provide employment law services to Government and the public sector.

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