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Early Morning Shop leads to Health and Safety Nightmare

Written by Alison Maelzer on October 26th, 2012.

Many of us know that supermarket shopping with children can be a trying experience.  However, a trip to Lower Hutt Pak n’ Save became something of an early-morning nightmare for a father and his 10 year old son late last year.  The two were at the supermarket at opening time, 6am, and were going about their shopping when...
 
A well-meaning Pak n’ Save forklift operator noticed that a pallet on top of the shelving unit was overhanging the rack and thought it was unsafe.  Despite a store policy prohibiting the operation of forklifts during opening hours, the operator decided to remove the overhanging pallet, which was constituting a potential hazard.  In doing so, the operator put the forks of the forklift into the pallet.  The pallet contained 64 boxes, each containing 12 one-kilogram cartons of washing powder.  When the operator lifted the pallet to realign it, the bottom and side broke, sending boxes of washing powder down into the adjacent aisle.  Unfortunately, the boy was in the adjacent aisle and a number of those heavy boxes landed on him.  He sustained a broken leg as a result of the accident.
 
The supermarket was prosecuted under section 16 of the Health and Safety in Employment Act 1992 (HASIE).  The charge was that the company, being “a person who controlled a place of work, failed to take all practicable steps to ensure that no hazard that is or arises in the place harms people who are there to undertake activities that include…buying or selling goods from whose sale the person …derives any gain or reward” 
 
It was noted that the store had a policy and practice of fencing off any aisle where a forklift/ reach truck was in operation.  However, there was no policy of fencing off the adjacent aisle.  Since the accident, such a policy has been implemented. 
 
The company pleaded guilty to the charge, and paid voluntary reparations of $2,000 to the boy and his family.  The Court awarded a further $3,000 in reparations.  It then took a nominal starting point of $60,000 for the fine (payable to the Crown), discounted it by $20,000 to take account of mitigating factors (including the fact that the operator was acting to remove a hazard and inadvertently created a new one, procedures and codes of practice were in force, and the company had a good safety record), and discounted a further 25% for the early guilty plea.  The fine eventually reached was a relatively modest $30,000. 
 
In our view
 
While HASIE is, as its name implies, chiefly focused on health and safety in employment, and many of the duties are imposed on employers to look after the safety of their employees, it is important to remember that it also applies to those in control of a place of work.  This can include the owner, lessee, sub-lessee, occupier, or person in possession of a place of work, or the plant within it.  
 
The person in control of a place of work (whether that person is the employer or not) must take all practicable steps to ensure that no hazard harms people:
 
  • Who are in the vicinity of the place (including those who are there for recreation or leisure);
  • Who are lawfully at work in the place (including as customers, employees, contractors, sub-contractors or employees of contractors or subcontractors);
  • Who are there with the express or implied consent of the person in control of the workplace, and who have either:
                  -paid the person to be there; or
                  -are there to buy goods or inspect goods for sale
 
There are also duties to warn other people who may be in a workplace of any significant, unexpected, hazard that may arise from work being carried out there.   
 
Health and safety in retail has not had the spotlight on it yet.  However, retail stores/areas are complex multiple hazard workplaces, often with high (and sometimes overstocked) shelves, electrical components, slipping hazards, falling objects and dangers posed by customers to themselves, to staff, and to other customers.  Eliminating and regulating these hazards will always need to be considered in the context of the particular workplace.  There is no “one size fits” all and company policy-makers need to be cognisant of that. 
 
If you have any questions about whether you are a person in control of a place of work, and if so, your obligations to those who may be in the workplace or its vicinity, please give us a call on (09) 375 8699 to talk through your situation or email us at employmentnews@heskethhenry.co.nz
 
 
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