News
Sports have grounds for concern over workplace law
In perhaps what is a favourable reflection upon the state of our society, the phrase "sporting tragedy" has a very limited meaning in New Zealand. All too often this expression seems to be used to describe a heart-breaking loss on the cricket pitch or rugby field.
A tragedy of a very different sort has, however, caused some serious legal questions to be raised in North America - and may be a catalyst for similar questions to be raised in New Zealand.
In March an accident occurred during a professional ice hockey game in the United States. A slap shot was deflected at an odd angle, sending the frozen hockey puck hurtling into the crowd.
The puck - 170g of hard, frozen rubber, travelling at about 160 km/h, hit a 13-year-old girl in the head. The impact caused a rare injury to an artery in the back of the girl's brain, leading to her death two days later.
While it is not unusual for a puck to be hit into the crowd at a hockey game (a safety glass fence contains most shots) tragic consequences such as this are relatively rare. In the past 23 years, three fatalities have been reported as a result of pucks hitting spectators (most occurring in minor league games).
But the consequences of the March accident are particularly significant. Perhaps motivated by the especially tragic circumstances, the administrators of the professional game in North America have made it compulsory for all rinks to have safety netting (which will be raised above the existing safety glass) next season. Historically, fans have opposed netting because of the restrictions that it places on viewing the game.
As a New Zealander, it is tempting to read stories such as this, and to conclude that something similar could never happen here. Surely, these extraordinary steps to ensure safety are motivated by the prospect of multimillion-dollar personal injury awards - and rapacious American lawyers who are set upon exacting monetary revenge.
But many will be surprised to learn that proposed amendments to New Zealand's health and safety legislation may achieve a similar result in this country in years to come.
The New Zealand sport which might be most affected by health and safety considerations is cricket. Unlike the vast majority of sports, cricket is a game where a competitor's object is to hit a ball out of the playing area - and into the spectators' arena. Not only is a batsman rewarded for hitting a massive six, it is the possibility of this very event that provides a major attraction for many spectators.
As in ice hockey, serious injuries to spectators at cricket matches are rare. But what would happen if a tragedy like this was repeated at a cricket match?
New Zealand's health and safety legislation places a primary duty upon employers to safeguard their employees by limiting exposure to hazards at work.
As we are regularly reminded, sport in this country has now entered a professional era - and we are all undergoing some culture change as we come to terms with the possible application of employment-law principles to the sporting arena.
In this context, one would conclude that the primary obligation exists upon the employers of professional cricketers to ensure that harm does not come to them in their workplace.
But what about spectators?
Employers also owe a duty to guard against harm to other people in the workplace - and it is possible that this obligation could extend to offer some protection to spectators at professional cricket matches. But it is more likely that the primary duty exists elsewhere.
A person who is in control of a "place of work" owes a particular duty to take steps to ensure the safety of people who have paid to be there. The obligation upon this person is to take "all practicable steps" to guard against harm.
The grounds where cricket is played in New Zealand are administered by a variety of different organisations - most often by local authorities and trusts.
These entities are likely to be principally responsible for taking steps to ensure spectator safety.
This would include assessing the possibility of harm occurring, the gravity of possible consequences, steps which might be taken to avoid this outcome and the cost of avoiding harm.
Taking all of these matters into account, the person in control of the ground should take all steps which are reasonable in the circumstances.
With changes to the health and safety legislation, the person in control of a place of work could incur a fine of up to $500,000 in the event of a serious injury to a spectator. Further, the act prevents insurance being taken out to cover the possibility of fines.
At present, it is probably reasonable for the people in control of cricket grounds simply to provide warnings to spectators about the possibility of a flying ball entering the spectators' area.
Although it may seem reasonable for this precaution to suffice (particularly because of the comparative rarity of serious consequences), some may not wish to wait for a tragedy before insisting upon more rigorous safety measures being imposed.
Will the puck stop here?
