News
Prosecuting the prosecutors
Any reader who is a regular viewer of BBC World will be well aware of the current public outcry in the United Kingdom at the state of the British rail industry. Amidst a number of significant complaints, the industry is currently the subject of a number of different proposals for reform.
Out of this background there emerges an intriguing case which may attract the attention of both legislators and employers in this country.
In 1999 a tragic train crash occurred in the Ladbroke Road area which led to 31 deaths and over 300 injuries. The crash occurred because a train driver incorrectly passed a red signal.
As a result of the crash Thames Trains' insurer, St Paul International, faces the likelihood of paying out an expected compensation bill of £10 million. Incredibly, the insurer has reacted by threatening to seek a contribution for this amount from England's Health and Safety Executive.
This unprecedented claim against a safety regulator is based on an allegation that the Executive was at fault for not raising concern about Thames Trains' driver training programme - and that it should not have allowed the relevant signal layout to operate. The claim is based upon the fact that the Executive was responsible for giving formal approval for the signal layout - which it failed to do in the six year period prior to the crash. The Executive responded to allegations about its failure by pleading an overwhelming workload and an inability to give appropriate attention to this approval process.
The Executive was, in fact, recently criticised in a report about the state of British rail for failing to press for more resources.
The functions of health and safety inspectors in New Zealand are somewhat different to those of their British counterparts. There is no equivalent in New Zealand to the formal approval process which forms the basis of the claim threatened to be brought by Thames Trains' insurer. There are, however, some similarities in the functions of the two inspectorates.
Under the Health and Safety in Employment Act, health and safety inspectors should, amongst other things, help employers (and employees) to improve safety in workplaces. In other words, health and safety inspectors in New Zealand have a proactive preventative function.
The Department of Labour Compliance Policy requires inspectors to make initial visits to workplaces primarily to educate and inform employers about the requirements of the law. On a subsequent visit, if compliance with the law is not achieved, an inspector may issue an improvement notice requiring action to be taken by the employer.
Interestingly, one of the current criticisms of inspectors made by some commentators is that their preventative function is overwhelmed by the requirement for them to prosecute workplace accidents. This is a criticism about which Parliament is aware - and is one of the reasons why the legislature has suggested that a new concept be introduced in the Health and Safety Amendment Act - that of employee participation.
The concept which is proposed in the Amendment Act would require employers with more than 30 employees to have an employee appointed as a health and safety representative (and allows for appointments in smaller workplaces also). That person is, amongst other things, charged with an obligation of identifying and bringing to the employer's attention hazards in the workplace - and discussing ways that the hazards could be addressed.
This obligation, which is clearly intended to provide a way for accidents to be prevented by involving employee participants, could lead to some interesting outcomes if the British experience is anything to go by.
Given that the employee representative has a preventative function it is possible that an employer who is prosecuted for a breach of the Act might look to the representative to shoulder some blame - if it can be shown that the representative failed to alert the employer to a hazard which led to harm. It is unclear whether the employer could seek a contribution from this employee by joining them as a party to any prosecution (similar to the steps taken in the English case referred to above). One would imagine, however, that a Court considering an employer's liability would take account of any such failure of an employee representative in deciding upon an appropriate fine in respect of an accident.
As employers wait to assess the effects of the amendments proposed to our health and safety legislation this recent English experience may cause some new questions to be raised.
