On 4 April the Health and Safety at Work Act 2015 came into force.
It will have wide ramifications. It provides duties on businesses to do what is “reasonably practicable” to ensure the health and safety of its workers, and in fact any other person affected by the work. The duty extends to those the business influences or directs outside the direct worker – such as subcontractors.
That a vehicle can be a place of work has been in the law for some time (so can a vessel, train, or aircraft). So trucks, buses, and taxis are covered. So too is work use of a car, private or otherwise.
There doesn’t seem to have been much action taken against people who have caused harm to others through the use of a vehicle for work. That I suspect will change under the new law. And so it should – the annual workplace death toll is about 60, without road deaths. A fair number of the 320 killed on the roads will also be people at work – the 67 killed in truck accidents in 2014 for a start. We don’t know exactly how many work vehicle fatalities and incidents there are, which is a little scandalous given their likely importance and the focus on workplace deaths overall.
Clearly if you have done what is reasonably practicable, then that is a defence. But “reasonably practicable” is defined in the Act, and it is a high hurdle to get over. It is what can reasonably be done taking into account the likelihood of the hazard or risk, the degree of harm that might result, whether you know (or ought reasonably to know) of the hazard or risk and ways of eliminating or minimising it, and “the availability and suitability” of ways to eliminate or minimise it.
After those factors you can take account of the cost of eliminating or minimising the risk, “including whether the cost is grossly disproportionate to the risk”
It won’t help you just to say it was too costly to do something, it will have to be “grossly” so. No one has ever defined what “grossly disproportionate” means, but “grossly” is not a word that you would use to describe small differences.
So to take a trucking example, it is feasible with current technology to remotely monitor driver performance on the road; indeed a large number of trucking companies already do it. Such monitoring is a step on the way to improving training and performance, and so safety. It should be well known. It is something “reasonable” to do. And it can’t be too expensive if it is in widespread use.
So if you are a trucking company that doesn’t use it, and you have a serious accident, you might have to explain why. That you don’t have the money isn’t going to cut it in my view; if that is because you are an owner driver and your conditions don’t give you much of a return to spend on such things, then the prime contractor could have to account for their failure to provide the appropriate resources. Admittedly it’s a back door, but the Act might well be a catalyst for improving rates in the industry.
In the Act what has to be reported has been expanded. The reporting obligation extends to work vehicles on roads (trains, ships and planes are covered by the Transport Accident Investigation Commission rules). If a death “arises from work” it has to be reported to WorkSafe.
So does a notifiable injury or incident. Any death involving a work vehicle “arises from” work, whether it is a worker killed or another person, and regardless of who is to blame.
Notifiable injuries include a range of serious injuries that require immediate treatment, and include some that could arise from a work vehicle accident. Notifiable incidents are occurrences that expose people to serious risk, even if they are not harmed. Some of the list of these in the Act might involve trucks, especially their loads. And reporting must be “as soon as possible” after the business becomes aware of a notifiable event.
Failure to report (or report in time) can attract a fine of up to $10,000 for an individuals and $50,000 for a business.
The Act has serious implications for all those who involve vehicles in their work. This column is not legal advice, and you should consult your lawyer as soon as possible about your obligations. The Chartered Institute of Logistics and Transport will be holding a one-day seminar on the role of the Act in the transport sector, some time in the middle of the year. We are still in the process of organising it, but if you are interested in attending, please contact Marilyn Henderson, info@cilt.co.nz, to register your interest.
