Part 5: Accidents

The Act requires employers the self-employed and principals to record all accidents and incidents in places of work. It requires employers to investigate all accidents and incidents to determine whether or not they were caused by a significant hazard, and if so to manage the hazard.

The Act also requires immediate notification by employers, the self-employed and principals of all accidents or cases of occupational illness involving serious harm to employees to the nearest OSH, MSA or the CAA (as appropriate), followed by a written report in a prescribed form within seven days.

5.1 Recording and investigating occurrences of harm

Employers, the self-employed and principals are each required to keep a register of all accidents and incidents, and any other occurrences of serious harm that arise from workplace hazards (section 25(1)).

The Act defines "accident" broadly, as any event that -

• Causes any person to be harmed; or
• In different circumstances, might have caused any person to be harmed.

(section 2)

Record keeping for employers

Accidents involving employees

A record must be kept of:

• Every accident or incident that harmed or might have harmed any employee at work (section 25(1)(a)(i)); and
• Every occurrence of serious harm to an employee at work, or as a result of any hazard to which the employee was exposed while at work and in the employment of the employer (section 25(1)(b)).

It is important to note that the requirement is to record accidents and incidents where any degree of harm of has occurred or could have occurred, i.e. it need not have been serious harm.

The requirement to record serious harm overlaps with the requirement to record accidents and incidents. However, serious harm may have arisen from exposure to hazards that cannot be linked back to particular events. Exposure must have occurred while in the employment of the employer. It need not be the only exposure which the employer has had for the employer to be required to record or report the occurrence (see 5.2 below).

The requirement for employers to record is intended to lead to greater awareness of, and investigation of the causes of occupational illness and disease. It applies equally to "biologically" derived illness, such as leptospirosis, or hepatitis B, as it does to "physically" caused conditions, such as noise-induced hearing loss, occupational overuse syndrome, or solvent-induced neurotoxicity.

Most occupational diseases are classified as "serious harm". For further explanation, refer to the definitions at the back of this guide.

Accidents involving other people in a place of work

Employers must also keep a record of every accident or incident that harmed or might have harmed any other person in a place of work controlled by the employer (section 25(1)(a)(ii).

Record keeping for self-employed persons (section 25(1A))

Self-employed people must maintain a register of accidents and serious harm and keep in the register details of:

• every accident or incident that harmed (or might have harmed) themselves while at work; and
• every accident or incident that harmed (or might have harmed) any other person while at work; and
• every occurrence of serious harm to themselves while at work, or as a result of any hazard they were exposed to while at work.

Record keeping for principals (section 25(1B))

Principals to a contract (defined at 4.3, Principals and contractors) must maintain a register of accidents and serious harm and keep in the register details of:

• every accident or incident that the principal becomes aware of that harmed (or might have harmed) a self-employed person while at work and contracted to the principal; and
• every accident or incident the principal becomes aware of resulting from a self-employed person at work and contracted to the principal that harmed (or might have harmed) any other person while at work; and
• every occurrence of serious harm to a self-employed person while at work and contracted to the principal, or as a result of any hazard they were exposed to while at work.

The duty is in addition to any record keeping duties the principal may have as an employer.

The duty does not apply to the occupier of a home who contracts a self-employed person to work on or in it.

Format of the register

The required form of register is the same for each of the above dutyholders, and must contain information prescribed by regulation. An entry must be completed for every accident or incident, or any occurrence of serious harm which results from exposure to a hazard in a place of work.

The categories of information required to be recorded in the register are set out in the Health and Safety in Employment (Prescribed Matters) Regulations 2003. See below.

Information to be recorded in the register

Regulation 4 of the Health and Safety in Employment (Prescribed Matters) Regulations 2003 requires the recording of the following information in a register of accidents and incidents(so far as they are relevant and known to, or ascertainable by, the employer, self-employed person, of principal concerned):

1. Particulars of employer, self-employed person, or principal (business name, address and telephone number).
2. Whether the person reporting is an employer, self-employed person, or principal.
3. Location of the place of work where the accident/harm occurred.
4. Name, home address and details of person injured (employers or self-employed only).
5. Occupation or job title of the injured person.
6. Whether the injured person is an employee, contractor, the person reporting or other.
7. Period of employment of injured person (employees only).
8. Treatment of injury.
9. Time and date of the accident/harm.
10. Mechanism of accident/harm - what happened.
11. Agency of accident/harm - what caused it.
12. The part of the body affected.
13. The nature of the injury or harm.
14. A description of where and how the accident/harm happened.
15. Whether or not an accident investigation has been completed by the employer, and whether or not a significant hazard was involved.
16. Name and signature of the employer (and position in company if their representative).

A form for recording and reporting accidents is available on the OSH website and suitable accident registers can also be purchased from suppliers of books and stationery.

Employers do not have to use a pre-printed register form. They may use their own form (including an electronic register) so long as it includes at least all of the information required to be recorded or reported.

Extent of the employer's duty

Employers are responsible for the recording and investigation of accidents and illness affecting their employees. The duty is not qualified by the "all practicable steps" requirement - meaning that in any prosecution there are few defences the court may consider where there has been a failure to record, notify or report (see 6.5, Offences and penalties).

Employer's duty to investigate

Section 7(2) of the Act requires that all accidents and occurrences of harm that are required to be recorded are investigated by the employer to determine whether it was caused by, or arose from a significant hazard. This is regardless of whether or not the person exposed to the hazard was an employee.

The standard of care required of the employer is "all practicable steps".

Any significant hazards identified as a result of this process must then be eliminated, isolated or minimised as required by sections 8-10 of the Act (see 2.3, Hazard management responsibilities).

Others exercising control over places of work

Principals and self-employed people, while required to record and notify, are not legally obligated to investigate accidents.

The duty to record does not apply to a person who controls a place of work. However, it is likely that in many situations, such as a farm or small business, where the "person who controls the place of work" is not an employer, they are likely to be self-employed..

Employees

There is an implied duty for employees to report accidents and incidents to their employer (see 3.2, The employee's general duty). Supervisors, on the other hand, usually assume at least some of the responsibilities of their employer.

All accidents should be reported to the employer immediately. This means, among other things, that an investigation can be conducted. Telecommunications today mean that even accidents at a remote place of work can and should be reported to the employer within a short time.

Reporting of all incidents or "near misses" to the employer is also important. Recording of these incidents provides valuable data to improve safety and health, and allows for steps to be taken to prevent injury.

5.2 Notification and reporting requirements

Employers, self-employed and principals with the duty to record accidents must also notify OSH of occurrences of serious harm (section 25(2) and (3)).

Where serious harm occurs to any person as a result of work activities, the person recording is required to notify the Secretary of Labour at the nearest OSH regional office (or CAA, in the case of the aviation industry or MSA in the case of ships) as soon as is reasonably possible after its occurrence or detection. For a definition of serious harm, see the definitions at the back of this guide.

Notification should be made by telephone, or by fax - not mail. It should describe:

• What has happened;
• To whom; and
• Where.

The seriousness of the event may determine how rapidly notification occurs. In the case of a fatality, grave injury, or significant property damage, notification should occur immediately after the event. Alternatively, in the case of serious harm arising from occupational illness or disease, it may be sufficient to send a written report after an initial diagnosis is made.

The purpose of the notification is so that OSH, or the appropriate designated agency, can determine whether or not to investigate the serious harm. Also, so that OSH can authorise the release of the accident scene (refer to 5.3, below).

Within 7 days after the occurrence, and in addition to the notification described above, the employer must provide written notice to their nearest branch of the Occupational Safety and Health Service, or to the MSA or CAA as appropriate. The notice must be in the manner prescribed in the Health and Safety in Employment (Prescribed Matters) Regulations. Pre-printed forms are available, see above, but the required information may be provided in an alternative form.

Additional regulatory requirements

Additional requirements may be prescribed by regulations covering specific high-hazard industries. For example, the Health and Safety in Employment (Pressure Equipment, Cranes and Passenger Ropeways) Regulations 1999 require some non-injury accidents involving boilers, pressure vessels, cranes and passenger ropeways to be notified to OSH.

What happens to notification advice

When an Occupational Safety and Health Service regional office, or designated agency, is advised of an accident, incident, or other occurrence of serious harm, a health and safety inspector decides whether or not to investigate the cause to determine if there has been a breach of the Act.

In suspected or confirmed cases of occupational illness or disease an occupational health nurse or departmental medical practitioner will usually investigate the place of work. They may recommend changes in facilities or work practices.

OSH also uses information gained from written notices to monitor the levels of compliance with the legislation, maintain, and contribute to injury databases. Such data is used to establish trends before developing strategies aimed at particular hazards or industries. Information supplied and used in this way is subject to the Official Information Act and privacy legislation.

Examples:

1. Dougal was a casual employee of ShipAhoy Services Ltd, and was working the night shift, loading logs in the hold of a ship.

   Towards the end of the shift, several of the logs were lying in a pile between two hatches on the deck, and ShipAhoy foreman, Ike, instructed Dougal to place a cable around the end of the logs to allow a crane to move them. While Dougal was positioning the block of the crane, it hit the log on the top of the pile, causing it to slide downwards, striking Dougal and knocking him to the deck, with the log on his left leg.

   Other employees went to Dougal's aid, but he made light of his injury and refused help after the log had been removed from him. The other employees, including two who were trained in first aid, were content to leave him alone. He got up and returned to the wharf before limping home.

   Later that day Dougal visited an A and E clinic, where a fracture of the fibula was diagnosed. Dougal's wife, Mavis, advised Ike of this, but he did not take any action as a result.

   Later on, the company manager, Boris, was advised, but he did not talk to Ike about the incident until two days later. Then he rang Ike, before ringing Dougal, and asking him to provide a written report. Boris then notified the local OSH branch later in the same day, and followed this up with a written report.

   In the meantime, the ship had sailed before an OSH inspector could investigate the accident.

   The company was convicted and fined for a breach of section 25. The court found the company staff to be ignorant of procedures following an accident, and the OSH reporting requirements. A booklet had been prepared, but the company had not checked whether or not people had read it.

2. Charlie was contracted to work in a refrigerated storage facility managed by Moo Dairy Company, who were in turn managing the facility for a producer board.

   Charlie employed four casual employees to work with him in the refrigerated warehouse. One day they were all affected by carbon monoxide fumes, and three were too unwell to continue even trying to work. Not realising the extent of the illness, Charlie allowed three of them to leave the workplace without any form of treatment, and continued to work with the remaining employee, before experiencing severe symptoms himself. It was then that the nature and extent of the illness became clear, and all five men were hospitalised with carbon monoxide poisoning, and received compression treatment.

   Before he went to hospital, Charlie had a discussion with two Moo Dairy Company managers, and it was decided that the dairy company, as principal, would notify the incident to OSH. This was done by telephone, and followed up with a written report within the 7-day period required.

   Charlie was discharged from hospital two days later, but as an employer of the four men, did not notify, record, report or investigate the incident. He was charged under section 25 for failure to notify the incident to OSH. The judge held that he could not be released from his obligations as an employer, and should have advised the nearest OSH office of the occurrence of serious harm at the first reasonable opportunity on his release from hospital.

5.3 No interference at scene of an accident

When there has been an accident involving serious harm to a person at work, the scene may not be altered without the permission of an inspector, unless to:

• Save life, prevent harm or relieve the suffering of any person;
• Maintain access of the general public to essential services or utilities (such as water, electricity or gas); or
• Prevent serious damage or loss of property.

The requirement (contained in section 26) does not apply where the accident:

• Involves a motor vehicle on a public highway;
• Is being investigated by the police; or
• Is being investigated under other law, such as transport, electricity and gas legislation, or the Armed Forces Discipline Act 1971.

The restriction on altering an accident scene is extensive, and means that no one may remove or in any way interfere with or disturb any wreckage, article or thing related to the incident.

The duty applies to all people - not only employers or employees - and this includes people who control a place of work, contractors or principals, or members of the public.

Release of an accident scene

An investigating health and safety inspector will release the scene of an accident when her or his examination is complete and they are satisfied that the hazard that caused the accident is no longer present, or if the inspector is satisfied on the basis of information supplied that there is no need for OSH to carry out an investigation.

How long an accident site is held for an investigation depends on the nature of the accident, but is usually less than 24 hours.

Release of the site need not be written, and may be verbal. It will be issued to the person in control of the place of work.

Example:

1. Richard was an employee of a ski hire and adventure tourism company, Whoosh Enterprises, which had set up a grass-ski facility.

   Richard was in the process of dismantling the hillside facility, and was using a wheel loader which had been hired by Whoosh from MoreforHire Ltd, when the loader rolled and pinned him underneath. He received broken bones in his right hand and left foot and severe bruising.

   Richard had received little instruction in the use of the wheel loader.

   After the accident, a representative of MoreforHire Ltd removed the wheel-loader from the scene and modified the operator protective structure.

   Investigation found that an awning on the machine fell well short of the requirements of the code of practice for operator protective structures on such machinery - a copy of which had been supplied to the hire company by an OSH inspector a year before.

   MoreforHire Ltd was convicted and fined under section 26(1) for interfering with the scene of an accident.

5.4 Investigation of accidents and illness

Investigation by employers

The duty to record all accidents, incidents and cases of occupational illness is set out above, and applies to all cases, whether the harm occurred to an employee or to another person. This includes any accidents or incidents where serious harm does not result, and is in addition to any accident investigation completed by OSH.

Having recorded the occurrence, section 7 of the Act requires that the employer then investigate the cause of any harm. This is to determine whether or not any recorded incident or illness was caused by a significant hazard. The standard required is "all practicable steps". This is an important element of the hazard management requirements of the Act (see 2.3, Hazard management responsibilities).

If the hazard is significant, it must be eliminated, isolated or minimised under the hazard management requirements of sections 8-10. The investigation of all accidents in this way is an important requirement of the Act. It should also be remembered that although the harm done in any particular incident may not be "serious harm", there may have been the potential for serious harm, and the incident may point to a significant hazard.

Two examples illustrate the point. Firstly, a roofer without fall protection slipped down a roof he was installing and was caught in wire netting, narrowly avoiding a fall of 10 metres and only cutting his finger. Clearly, the harm suffered was not serious, but the hazard of the unprotected fall was significant.

In the second example, two sewer workers emerged from a manhole with headaches and mild nausea, and, having reported their symptoms to their supervisor, investigation revealed the significant hazard of a dangerously high build-up of methane and carbon monoxide in the section of the sewer network they were working in. Again, the workers were lucky not to suffer serious harm, but the confined space hazard was significant.

When OSH, the CAA or MSA investigates accidents, incidents or illness

The Occupational Safety and Health Service, and designated agencies, investigate most occurrences of serious harm. Health and safety inspectors use the powers set out under sections 31-33 of the Act.

The powers of inspectors are described in more detail in section 6.1, Health and safety inspectors. For the purposes of investigations, an inspector may enter any place of work and conduct inquiries into the causes of any accident and into the health and safety of people at the place of work.

Investigation and evidence gathering

An inspector's investigation begins with their determining what happened, and whether or not the Act has been complied with. This may, in turn, lead into the gathering of evidence for a possible prosecution.

While carrying out the investigation, the inspector may take any photographs, measurements, sketches or recordings as are necessary for the purpose of determining the cause of the accident (section 31(1)).

The Act (section 33) also provides for the taking or removal of a sample of any substance or thing for analysis, and for the seizure of any material, substance or thing to:

• Monitor conditions in the place of work; or
• Determine the nature of any material or substance in the place of work.

When any such sample or other item is taken as evidence or otherwise, there are notice requirements and other limitations which the investigating inspector must meet - see 6.1, Health and safety inspectors.

As mentioned above, while any examination or test is carried out, the investigating inspector may require the employer or any other person in control of the place of work or any place or thing in the place of work not to be disturbed for a reasonable period.

The inspector may also require the employer, or any other person who controls a place of work, to produce documents or information relating to the place of work or the employees who work there. The inspector may make copies or extracts of the documents and information.

In the course of any accident investigation or inquiry, no person is required to give any answer or provide information that may incriminate them (section 31(6)).

Investigation of occupational illness and disease

Where there is a notification of serious harm resulting from occupational illness or disease, the occurrence may be investigated by a health and safety inspector or a departmental medical practitioner.

Departmental medical practitioners have many of the powers of entry and inspection of health and safety inspectors, and may complete investigations into cases of occupational illness or disease and prepare reports. They may also monitor conditions in the place of work and require the medical examination of employees and suspend employees in certain cases. See 6.2, Departmental medical practitioners.

Any prosecutions arising out of matters investigated by a Departmental Medical Practitioner must be begun by an inspector.

Availability of accident investigation reports

When an accident report is completed by an inspector, it is available to the individual or company investigated, and to the individual who has suffered the harm. The requirements of both the Official Information Act 1982 and the Privacy Act 1993 apply.

Where the report is to be used in evidence in a prosecution it becomes subject to the pre-trial process of "discovery" by legal counsel.

Decisions to prosecute after accidents

After any accident, a decision to prosecute is made after a report has been completed, and where:

• A prima facie case has been made out that there has been a breach of the Act; and
• It is in the public interest to prosecute.

The decision whether to prosecute is made by the investigating inspector, after discussion with their manager and a solicitor.

About 80 percent of prosecutions taken by OSH under the Act follow accidents, incidents and cases of serious harm. However, since the legislation was enacted, only 4 percent of investigations have resulted in prosecutions. For further discussion of OSH's prosecution policy, see 6.5, Offences and penalties.

An example of an accident investigation

An accident investigation in the construction industry illustrates the investigation process after a serious harm accident or, as in this case, fatality.

The accident

A viaduct on a state highway was being constructed in a remote mountain setting by construction company, Highway Constructors Ltd. The completed viaduct was to have three large concrete piers supporting reinforced concrete spans. At the time of the accident two piers were nearly complete, and deep foundations were being drilled into rock for the third pier. The company employed an average of 35 people on the project, and, depending on the work being done, two shifts were being worked - 4am-2pm, and 2pm-midnight.

One morning Lyall and Serge had just begun work on the day shift at the excavation of the third pier. The excavation was a hole in solid rock, 12m in diameter and 18 m deep, which filled with water unless electric pumps were regularly used to clear it.

The two men, who were the only employees present on the site at the time, were using a 150-tonne crawler crane to remove a submersible electric pump from the hole for maintenance. The crane was slung with a hook, attached to the pump, and while Serge operated the crane from the cab, about 15 metres back from the edge of the hole, Lyall was directing him.

While the pump had been lifted out of the hole, electrical cables attached to it had become snagged at ground level. Tension in the lifting chain and the snagged wires increased, and when continued lifting didn't free it, Lyall signalled to Serge to stop the crane. He was moving to disentangle the cables when the pump swung towards him and a lifting chain attachment point snapped, causing the 500kg pump to drop onto him. At this point Serge left the cab and ran to his assistance. Lyall was unconscious with a weak pulse. Serge saw he had a head injury, and left him in the recovery position before driving to the site office to phone for help. By the time he returned, Lyall had died of abdominal injuries.

Serge had contacted emergency services. The project manager notified OSH of the accident within an hour of its occurrence. Lyall's body was removed, but other than this the scene of the accident was left undisturbed until OSH inspectors arrived four hours after the accident.

Investigation

The investigation began that morning. The accident scene and surrounding site were photographed, and the pump lifting eyes, chain and bolts, and Lyall's helmet were removed from the site. (Their removal was recorded in a notice given to the site manager.)

To determine what happened and the company practices and systems in place, inspectors formally interviewed:

• Serge;
• Four other employees who worked on site, two of which were on the other shift;
• The project manager; and
• The contracts manager.

The cause of death was determined by an autopsy.

The purpose of an investigation is to:

• Identify and analyse contributing factors which led to, or resulted in, the injury or illness or the complaint;
• Develop preventative measures to eliminate, where possible, the contributing factors;
• Determine the extent to which the contributing factors were the result of non-compliance with legal requirements and standards; and
• Take whatever actions are required to correct the non-compliance and prevent a recurrence, including enforcement action where necessary.

Investigation soon focused on the failed equipment. A consultant engineer was engaged to examine and test the failed lifting equipment, and the results were supplied in a formal report. The impact of the company's hazard management systems on the accident was also evaluated.

Report and outcome

OSH's policy is to operate on the principle of "no surprises" to all parties in the investigation. Every effort was made to ensure that the parties were aware of the status of the investigation, reasons why any actions were or were not taken, and any future actions to be taken.

A draft report was produced within 6 weeks and copies were supplied to the company and to Lyall's family for comment. Comments were incorporated in the report.

OSH's policy is to produce a final report and recommendations, wherever possible, within 90 days of the accident, incident or cause of harm becoming known.

The final report must set out:

• The sequence of events;
• The facts that can be proven; and
• Conclusions and recommendations.

In this case, charges were laid against the company for breach of the section 6 duty to provide a safe place of work, and the section 7(1) (a) duty to identify hazards.

In court, the section 7 charge was withdrawn, and the company pleaded guilty to and was convicted on the section 6 charge.

The company produced its own detailed investigation of the accident, which contained recommendations for changes to work practices and equipment.

Judicial inquiries into accidents

The Minister responsible for the Health and Safety in Employment Act may direct an inquiry to be held before a District Court judge into any accident or any occurrence of serious harm that happens at a place of work (section 27).

The decision to hold an inquiry is a matter of ministerial discretion, and will usually be based on public interest grounds. Any decision is made after consultation with the Minister of Justice.

A judge appointed to lead an inquiry has all the powers of a commission of inquiry under the Commissions of Inquiry Act 1908 - meaning they may appoint expert assistance and holding hearings as and where required. Their report is provided to the Minister responsible for the Act.

In the first ten year's of the legislation being in force, no ministerial inquiries were held under section 27.

Reports to a coroner

A coroner may request and be provided with written reports on fatal accidents (section 28).

Having requested such a report, the coroner may decide whether or not to hold an inquest. The inquest may be held in addition to any investigation, prosecution or other enforcement action taken under the Health and Safety in Employment Act.

Health and safety inspectors may, among others, give evidence at a coroner's inquest, and in addition to providing a written report.

A summary of what to do following an accident or other incidence of harm

Make sure anyone injured or suspected of injury or illness has received medical attention if necessary.

A. Recording accidents and incidents that don't result in serious harm

1. When events do not result in serious harm, complete your own investigation.
2. Where a significant hazard is identified, take whatever steps are needed to eliminate, isolate or minimise it. Record the details of the incident and the outcome of the investigation in a register.

B. When events result in serious harm

1. Don't interfere with the accident scene without the permission of a health and safety inspector.
2. Advise your local OSH branch office as soon as possible by phone or fax.
3. Complete your own investigation and take steps to eliminate, isolate or minimise any identified significant hazard.
4. Mail or fax written notice in the prescribed form to the nearest OSH office within 7 days.
5. Keep a copy of the written notice in your register. If you keep an accident register in a different form, you must record the prescribed details.

Examples:

1. Peter was employed as a storeperson in the depot of the trucking and freight forwarding company, VroomFreight Ltd. One day he was unloading cartons from a trailer unit which had been parked at a loading platform. He was stacking the cartons on a pallet when one became jammed. While trying to free the carton, he fell from the platform on to concrete below, suffering severe head injuries and a broken shoulder.

   VroomFreight had not notified OSH by the time a health and safety inspector read of the incident in the newspaper the next morning.

   The inspector visited the depot, and on arrival it was clear that the accident site had been completely altered. The trailer unit into which the employee had been loading cartons had been driven away, the pallet had been thrown out, and the platform on which Peter had been standing had been moved. It was therefore difficult to determine what had caused the accident. The company manager claimed that the nature of the business meant that even if OSH had been notified, the company would have been reluctant to hold up the passage of freight by leaving the accident scene undisturbed.

   Vroomfreight Ltd was convicted and fined under section 26 for interfering with the scene of an accident.

2. Colin was employed as a machine operator and assembly worker by timber products manufacturer, Sandalwood Products Ltd.

   He had worked for the company for about three months when he arrived at work one morning and was waiting to be assigned work for the day by the foreman Todd. In the meantime another experienced employee, Sue, was setting up a blade on a spindlemoulding machine about 4 metres away.

   Having fitted the blade, Sue turned on the machine, and immediately afterwards there was a loud noise and Colin looked down in pain, to see that his hand was bleeding.

   Todd took him to hospital, where surgery removed a part of the blade, and repaired tendon damage. Colin was off work for three months.

   Colin had been assured that the accident would be reported to the authorities, but neither Todd or the company director, Mr Sandal, reported the accident to OSH - although it was lodged as an accident compensation claim.

   Colin became concerned about the absence of reporting and the level of safety precautions in the workplace generally. He contacted an OSH inspector at the time of his return to work, when it became clear that the company had not recorded or investigated the accident, and no remedial action had been taken. The company was unaware of the need to report, record and investigate serious harm accidents.

   Sandalwood Products Ltd was convicted and fined for breaching sections 25 and 26 of the Act. It was also charged under section 6.