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Alert24 - Safeguard Update

Kiwifruit: Case "fundamentally flawed"

Kiwifruit: Case "fundamentally flawed"
2018-11-02
Article Type:
News
Publication Date:
2018-11-02
Jurisdiction:
New Zealand

WorkSafe’s investigative processes have come in for criticism from a lawyer who successfully defended a large kiwifruit grower, charged in relation to a quad bike accident that killed a fruit sampler working on its site.

In June the district court at Tauranga dismissed charges against both the grower, Athenberry Holdings, and fruit pack house Hume Pack-N-Cool, ruling that, because of established fruit sampling practices – designed by industry parent body Zespri and enforced by the samplers’ employer, AgFirst Bay of Plenty – they were not responsible for the fatal accident, even though the victim was working on Athenberry land, at the request of Hume, when she died.

WorkSafe had previously accepted an enforceable undertaking from Zespri in relation to the incident, and AgFirst later pleaded guilty, receiving a $306,000 fine and being ordered to pay $60,000 in reparations.

Speaking at the LegalSafe conference in Auckland last month, Garth Gallaway from Chapman Tripp said he believed neither Athenberry nor Hume would have been charged if WorkSafe had had a better understanding of how the sampling system worked.

“There are 2500 orchardists in the Zespri system, and 22 pack houses, but WorkSafe’s sole focus was on the parties involved in this particular tragedy,” he said. “No other orchardist or pack house was spoken to throughout the entire investigation, and I think that’s a damning fact.

“It was incumbent on WorkSafe to speak to other people so they could get a better understanding of the industry.”

His own investigations found that Zespri had strict protocols for fruit sampling, and, in keeping with these, AgFirst actively encouraged samplers to avoid engagement with orchard owners, so as to protect the independence of the process. Although orchardists would know what day a sampler was expected, visits usually occurred unannounced. No site inductions were required, and the site maps given to samplers, which had originally been intended to identify hazards, were used primarily for orientation.

“I don’t want to be deliberately provocative but I was very disappointed with WorkSafe’s approach,” he said. “Its investigation was poor, to say the least, and its view of the overlapping duties in the case was, in my view, fundamentally flawed.”

There were also, he said, major problems with the practicalities of the investigation.

“When WorkSafe arrived on site, it didn’t take any steps to secure the scene. They had people trampling all through it.

“There was no forensic investigation to determine how the accident occurred, and they didn’t secure the deceased’s car to ensure there were no maps, medications, or any other relevant items in it.”

Six months after the accident an inspector visited the orchard and took more than 90 photographs showing what WorkSafe claimed were hazards to which samplers were exposed, but evidence from the orchard established in court that these were in areas to which samplers would never be required to go.

“WorkSafe was following the old legislation, looking at hazards, but not understanding risk.

“How can there be risks if people don’t go into these areas?”

Gallaway said he was left with such “a strong sense of discomfort around the physical investigation” that he subsequently met with WorkSafe chief executive Nicole Rosie to discuss it, and got a good reception.

“My view is that WorkSafe has got to do better around its forensic investigation of accidents, so we understand more about what’s occurred.

“Historically its response model has focused on harm caused, rather than the risk of harm, but I’m told it is [now] intending to target its resources to where it can make the biggest impact, taking account of its strategic objectives.”

Gallaway said he understood this would see the introduction of “investigation off-ramps”, which would allow some investigations to be closed in favour of other interventions.

“There will be more effort to learning from investigative and prosecution processes, to inform an approved practice.

“It’s exactly the sort of outcome one would expect, and I welcome it.”

 

 

People Mentioned:
Nicole Rosie; Garth Gallaway
Organisations Mentioned:
Zespri; Athenberry; WorkSafe NZ
Reference No:
181102CA-4397

From Alert24 - Safeguard Update

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