Don't get wasted

People are often told to learn from their mistakes. In the world of health and safety a mistake can mean serious harm to a team member, so it’s better to try to learn from the mistakes of others.

In a recent high profile case, Department of Labour v Manawatu Waste Limited, Manawatu Waste was fined $10,000 and also ordered to pay reparations of $30,000 to one of its employees after a tragic accident at its refuse transfer station.

The employee operated a shredder that mulched green waste. On February 22, 2006 an accident occurred, and the employee received horrific injuries. The shredder’s blades became jammed by a tree stump. The employee left his operator’s cab and entered the shredder, while it was still turned on, to clear the jam. While attempting to push the stump through the shredder with his right foot, the employee was dragged into the shredder’s blades. By the time the shredder’s emergency stop was activated by a co-worker, following the victim’s cries for help, both of his legs and his left hand had been mutilated. The employee sustained multiple traumatic injuries, including amputations of both his legs above the knee, and his left arm below the elbow.

As you would expect, the employee and his family will have to live with the consequences of this unfortunate accident for the rest of their lives. The employee had been a very active person who enjoyed playing sport. He will now be unable to play sport or do manual work. The emotional and financial toll on the employee and his family and friends has been, and will be significant.

All employers and employees can learn from this case. What could Manawatu Waste, a first time offender, have done differently to prevent this horrible accident from happening? What was the District Court’s view of Manawatu Waste and the employee’s actions leading up to, during and after the accident?

Before the accident, the shredder had on occasions become jammed. Manawatu Waste had written safety operation rules which stated “Always stop and isolate equipment before clearing a blockage”. Manawatu Waste had also held meetings with its staff in 2001 and 2004 where employees, including the victim, were told to ensure the shredder was switched off before fixing a jam.

Although the victim had been trained to operate the shredder it is important to note that Manawatu Waste had been receiving a Workbridge subsidy for his employment. Workbridge is a professional employment service for people with disabilities, and subsidises employers to help with the additional costs associated with employing people with impairments. It is not clear whether Manawatu Waste had given the victim extra training to ensure he understood the hazards associated with the shredder.

The Judge took account of the victim’s actions in entering the shredder while it was still turned on, but felt that Manawatu Waste should have done more to protect him. Manawatu Waste conceded it should have taken several practicable steps:

• The shredder blades were easily accessible to the operator while the power was still turned on, and therefore were not adequately guarded. It would have been a practicable step for Manawatu Waste to have provided an interlocked gate between the operator’s cab and the hopper of the shredder, using a ‘trapped key’ system. Such a system would have prevented the victim from entering the shredder without first turning the machine off; and

• In light of the Workbridge subsidy and the victim’s circumstances, Manawatu Waste should have been mindful of the need to provide the victim with additional instruction and training in the safe use and operation of hazardous machinery.

In simple terms, Manawatu Waste should have done more to protect the employee from the risk of him ignoring or forgetting his training. This is an important lesson for all employers.

The Judge also recognised that Manawatu Waste had done some things right. At sentencing, the Judge gave Manawatu Waste credit for:

There are some hard lessons everyone can learn from this tragic situation.

First, employers must ensure that once hazards are identified, they are eliminated. In the Manawatu Waste case, the company had an opportunity to spend $10,000 to install a lockout device. Had such a device been in place, there is no doubt that the victim would still be playing the sport that he enjoyed so much, and the company would have saved money and avoided the damage its reputation it has now suffered.

Second, employers must ensure that all plant and machinery is safe for use by appropriately trained employees. Had the victim been adequately trained in the safe use of the shredder (taking into account his disability), it is likely that he would not have entered the shredder without first switching it off. When employees have special needs or require extra training for whatever reason, that training should be given before the employee uses a machine that is inherently dangerous.

Third, when an accident happens, employers should turn their minds to what they can do for the victim and his or her family. The courts will always take the employer’s post accident actions into account when deciding the appropriate level of fine and/or reparation award. Putting aside employment law – and good commercial practice – it is sensible for employers to take all possible steps to assist the victim and his or her family after an accident. This will not only help to alleviate some of the victim’s pain and suffering, but will also mitigate the company’s sentence if the accident results in a prosecution.

• This article is not a substitute for independent legal advice.

BY GRANT NICHOLSON and BLAIR EDWARDS, Kensington Swan Lawyers

Contractor Vol.31 No.5 June 2007

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