By GREGG WYCHERLEY
Occupational Safety and Health is under attack from health and safety experts after its refusal to investigate the death of Danial Gardner at the Imax cinema complex last month.
The 16-year-old high school student fell to his death on September 22, over a barrier which the Herald later revealed
was 6cm lower than the building code standard.
The failure of OSH to investigate the accident, or to ensure that building owner Force Corporation improve safety following a near-miss accident on an escalator last August, has angered Danial's family and sparked criticism from health and safety experts.
Mr Gardner said he was shocked and upset after OSH inspector Linda Wilson visited him yesterday, telling him the service would not investigate because the accident was not work- related, despite OSH spokesman Justin Brownlie telling the Herald yesterday that no decision had been reached.
"I couldn't believe it," Mr Gardner said. "I told her I wasn't interested in what OSH wouldn't do, [just] what they would do."
Ms Wilson's comments to Mr Gardner yesterday are the latest in a series of conflicting opinions from OSH staff since the accident:
September 24: Justin Brownlie says an investigation is unlikely because the accident is not work- related, and therefore outside the service's jurisdiction.
September 27: Linda Wilson, who wrote to Force recommending safety changes after a near-miss accident last August, tells the Herald OSH cannot act because the centre complies with the building code and the accident was not work-related.
September 28: OSH West Auckland branch manager Kevin Mottram says the service will not investigate.
October 1: Mr Mottram concedes OSH has a duty to investigate after being told of the low barrier.
October 2: Justin Brownlie says OSH has no power to require Force to improve safety at the Imax centre because it complies with the building code.
October 3: OSH inspector Linda Wilson visits the Gardner family to say OSH will not investigate because the accident was not work-related.
Independent health and safety law experts consulted by the Herald were surprised by the OSH response.
Richard McIlraith, a specialist health and safety lawyer at law firm Russell McVeagh, said the OSH argument was "ridiculous."
"I was surprised at the suggestion that they did not have the ability to issue improvement or prohibition notices simply because it complied with the building act.
"Even if the building complies, that's hardly the end of the matter; you would still have to address whether it is a safe situation."
"It's clearly something that OSH should be investigating."
Mr McIlraith said that after the near-miss accident last August, OSH could have issued an improvement notice requiring Force to act, or even a prohibition notice shutting down the centre until safety improvements were made, regardless of building code compliance.
Paul Tremewan, an employment lawyer and university lecturer specialising in health and safety law, said the law clearly set out employer's duties to provide a safe environment for workers and visitors, and the obligation on OSH to enforce those duties.
"If they had a near-miss last time, it is encumbent on OSH to ensure that the employer does not avoid their responsibility under the act."
He said the penalties for non-compliance included fines of up to $100,000 or/and one year in prison.
"If you have an accident or near-miss and you haven't got a paper trail identifying hazards that have already been pointed out, then you should expect to be severely dealt with," he said.
University of Auckland health and safety specialist Felicity Lamm said that in a 1994 prosecution brought by the Department of Labour, District Court Judge Thomas Everitt stated that employers had a duty to be proactive in seeking out hazards.
" ... it is not just a matter of meeting minimum standards and codes laid down by statute.
"It requires employers to go further and set down their own standards commensurate with the principal object of the act after due analysis and criticism."
Justin Brownlie said the OSH legal division was looking into the case and no investigation would begin until jurisdiction had been determined.
By GREGG WYCHERLEY
Occupational Safety and Health is under attack from health and safety experts after its refusal to investigate the death of Danial Gardner at the Imax cinema complex last month.
The 16-year-old high school student fell to his death on September 22, over a barrier which the Herald later revealed
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