Compliance
In The Field
NZ provider hit with 200k costs for failure to manage dead tree risk
Freya Lucas
Aug 26, 2019
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A New Zealand-based early childhood education and care (ECEC) approved provider has been ordered to pay more than NZ$200,000 after it failed to identify and address the risks posed by a dead tree located in the grounds of one of its centres, local news source The New Zealand Herald has reported.
As a result of an 8 November 2016 incident, the investigation of which has just concluded, the tree fell, injuring a number of toddlers who were using the yard at the time.In a transcript of the case, Judge Eddie Paul describes “a large cracking noise” being heard as the tree collapsed on and around children and adults. Four children were taken to hospital, with one young child, aged two, suffering multiple fractures, including two to his skull, The Herald said.
In reporting the story, The Herald outlined victim impact statements from the parents of the children involved, with the court hearing that children had become self-conscious about their appearance, lost confidence, found it hard to separate from parents, and were more cautious than prior to the incident.
The approved provider was prosecuted by WorkSafe for “failing to ensure so far as was reasonably practicable, the health and safety of workers”, in relation to educators who were affected by the incident, as well as “failing to ensure the health and safety of other persons”.
A qualified arborist told the Court that the tree, an evergreen eucalyptus, should have carried leaves all year round. When the tree began to brown in 2014, subsequently “appearing skeletal”, action should have been taken to ensure it was made safe.
In commenting on the arborists findings, Judge Paul said the risks posed, when combined with the wind gusts of the day were “obvious”.
In handing down judgement, mitigating factors, such as the approved provider pleading guilty, appearing remorseful, having no prior convictions, and being unlikely to reoffend were considered.
In addition to the prosecution of the approved provider, the landlord of the property was also called to account for “failing to ensure so far as was reasonably practicable, that the health and safety of other persons, was not put at risk from work carried out as part of the conduct of the business”.
The approved provider was convicted and ordered to pay more than NZ$200,000 which included a NZ$172,000 fine and reparations of just over NZ$46,000 to the victims' families.
The landlord was fined NZ$89,200 and ordered to pay reparations of about NZ$30,000.
Speaking to The Herald after the incident, Northern Investigations manager for WorkSafe Danielle Henry said “This incident shows in near-catastrophic detail just how important it is for businesses to assess all risks their operations pose to workers and others.”
"But that's not the end of their responsibilities – they must put appropriate controls in place to mitigate those risks. If they don't have the in-house expertise to identify obvious risks and their controls, they should engage someone who does."
A spokesperson for the approved provider told The Herald that their hazard management system had been updated since the incident, and was under regular review.
Staff had noted the tree losing leaves, but were not aware that this was an indication of the tree’s demise, and were unaware that the tree could fall at any time.
For more information about managing workplace risk in the Australian ECEC context, please see here. To read the original coverage of this story, as provided by The Herald, please see here.
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