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Brought to you by Treadwell Gordon:
OPINION:
Health and safety on farms is not a new issue, but it is always worth reminding those in the sector of their responsibilities and the penalties for non-compliance.
Recently, a family farming company was prosecuted for failing to ensure its side-by-side was safe at the time of use. Unfortunately, the prosecution followed a death on the farm.
The family were hosting a Willing Workers on Organic Farms worker, otherwise known as a WOOFer. The worker was a passenger on the side-by-side when the driver lost control and the vehicle fell 13 metres down the hillside.
She was not wearing a seatbelt and was ejected from the vehicle and crushed when it landed on top of her. The worker died from crush injuries.
At the time of the incident, the door had been removed from the side-by-side and the passenger was not wearing a seatbelt.
In addition, the seatbelt warning system had been disabled and one seatbelt was broken, even if it had been used. This type of modification is not uncommon in the rural industry.
The company was prosecuted and fined $275,000 and a reparation payment of $110,000 to the victim's family was ordered.
The Judge disagreed with the prosecution and the defence and held the victim's family, who were overseas, were victims under the Health and Safety at Work Act 2015 (HSWA).
Under the HSWA, it is not possible to obtain an insurance policy for fines under the Act. However, insurance policies can include cover for reparation payments and costs of defence.
As a result, in this case the farm company had to pay from their own funds the amount of $275,000. If they had public liability insurance, their reparation payment (payment to victim) and costs of defence could potentially have been covered by insurance.
As is commonly appreciated by those in the farming sector, a Person Conducting Business Undertakings' (i.e. a farmer's) obligations under the HSWA are extensive. Most of these obligations are what is known as "strict liability" offences.
That means there is no requirement to show intent – for example, if you modified a piece of farming equipment that had the result of making it unsafe, and the modification then contributed to an accident, then you are liable, irrespective of your intentions.
In the illustration above, the farm company was prosecuted for failing to meet these duties:
(a) "Ensure so far as is reasonably practicable, that the fixtures, fittings, or plant are without risks to the health and safety of any person".
By altering the safety features on the side-by-side, it was found to have breached this duty.
(b) "If a person breaches that duty and that failure exposes any individual to a risk of death or serious injury or serious illness."
By altering the safety features, it exposed an individual to serious injury. Note there was no requirement for that person to be an employee.
Many in the rural industry will be used to having casual staff or backpackers stay on their farms. It is a way for backpackers to see parts of New Zealand off the tourist trail, and for farmers to have additional staff during busy periods.
Even though casual, such workers will be afforded protection under our health and safety law, and the same rules and regulations apply to them as others working "in the workplace".
In addition, all farmers need to be mindful of any modifications they make to farm equipment to ensure they do not compromise the safety of that equipment with the potential to put lives at risk.
Andrew Thomas is a principal who heads the Taihape team of Treadwell Gordon.