Department of Labour reasonable not to investigate accident of primary student on extra-curricular activity

Social Services and Care of Children
Legislation:
Ombudsmen Act 1975
Related legislation:
Health and Safety in Employment Act 1992
Legislation display text:
Ombudsmen Act 1975, Health and Safety in Employment Act 1992
Ombudsman:
Mel Smith
Case number(s):
W48275
Issue date:
Format:
HTML,
PDF,
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Language:
English

Primary school student training for cross country competition on mountain road struck by motor vehicle – training sanctioned by school as an extra curricular activity—OSH declined to investigate—father complained to Ombudsman—Ombudsman examined provisions of Health and Safety in Employment Act—satisfied that OSH had no jurisdiction to investigate as accident did not fall within the definitions of ‘place of work’ or ‘work’ in s.2(1) as occurred outside school grounds—Police investigation limited to criminal liability—Ombudsman identified no mechanism in place for ensuring accountability by schools in providing safe environment for students outside school gates—Ombudsman approached OSH, Ministry of Education and Minister of Labour about his concerns – Ministry confirmed it was developing policy to address this and agreed to keep Ombudsman informed—Ombudsman advised complainant he was satisfied OSH’s original decision was reasonable

A primary school student was training for a cross country competition on a particularly dangerous section of a mountain road when he was struck by a motor vehicle and seriously injured. Given the training had been sanctioned by the school as an extra curricular activity, it was the view of the student’s father that the safety of the students was the direct responsibility of the school. He therefore made a formal complaint to the school about the adequacy of the school’s organisation and supervision of the training.

The School Board of Trustees conducted an investigation along with the Children’s Commissioner and the Police. While a number of recommendations were made, the parents were dissatisfied that neither the Police nor the Department of Labour’s Occupational Safety and Health Service (OSH) had decided to take any action regarding the school’s organisation and supervision of the training. The Police concluded that the accident was a matter that OSH could properly investigate. However, the father was informed by his solicitor that OSH would not be conducting an investigation into this matter as one ‘was being carried out by the Police’. The father complained to the Ombudsman about the decision by OSH not to investigate the accident.

The Department was advised of the Ombudsman’s intention to investigate whether OSH had acted unreasonably in deciding not to investigate the circumstances surrounding the accident. As a first step, the Ombudsman asked OSH to provide its complete file on the matter and a report explaining the reasons for its decision not to carry out an investigation, with particular reference to the complainant’s concern that OSH had failed to meet its statutory responsibilities.

OSH confirmed that it had no statutory responsibility to investigate such accidents. It said that its investigations are carried out in pursuance of the functions of inspectors, set out in sections 30(b) and (c) of the HSE Act, which states that ‘To ascertain whether or not this Act is being and will be complied with; and to take all reasonable steps to ensure that the Act is being complied with.

The Ombudsman considered the provisions of the Health & Safety in Employment Act 1992 (HSE Act). He noted that its principal objective as set out in section 5(1) is

‘to provide for the prevention of harm to employees at work’. The HSE Act also has some limited provisions relating to the safety of people affected by the work of other people, with section 16 placing a duty on ‘persons who control a place of work’ as defined by section 2(1)’.

OSH explained that after inspecting the accident scene and consulting with the school principal, a Board of Trustees representative and the local Police, it decided not to conduct an investigation into the accident for two reasons, namely:

  • at the time of the accident neither the victim nor the driver of the motor vehicle was involved in activities defined as ‘at work’ under section 2(1) of the HSE Act; and

  • the accident occurred on a public road and therefore the criteria for “place of work” as defined under section 2(1) of the HSE Act was not met.

OSH advised the Ombudsman that notwithstanding this decision, it did provide support to the Board of Trustees to assist with its investigation into the accident. This support consisted of meeting with the complainant on several occasions to advise on the conduct of the investigation, reviewing the Board’s investigation findings, and undertaking a follow-up visit to the accident site to confirm that the improvements recommended in the school’s investigation report had been implemented. OSH advised the Ombudsman that, even if an OSH investigation had taken place, the outcome would likely have been no different. In any event, it had re-examined the case and remained of the view that the decision not to investigate was appropriate.

However, OSH accepted that its staff had not ensured that the complainant and his family fully understood the reasons for the decision not to conduct a formal investigation into the accident. OSH advised the Ombudsman that it was willing to offer its apologies in this regard and confirmed that since the time of the accident, it had implemented operational processes that are designed to ensure improved communication with both employers and victims during an investigation and to ensure that this type of situation does not arise in future.

It was apparent to the Ombudsman that while there was a general public expectation that OSH has the power to investigate any accidents that occur during school organised activities, in fact its jurisdiction does not extend beyond the environs of school grounds. The Police investigation was not one which could result in any prosecution under the HSE Act as the Police have no authority to instigate such a prosecution. The focus of Police enquiries would have been limited to considering whether there should be a criminal prosecution of any of the parties involved. Note that the Police formed the view that no party to the incident could be held criminally liable and therefore subject to Police prosecution. It therefore seemed to the Ombudsman that there was a gap in the mechanisms that should be in place to ensure schools are accountable for providing a safe environment for students. The Ombudsman decided to approach the Ministry of Education about the extent to which the Ministry was aware of the limits to OSH’s jurisdiction in these matters.

In response, the Ministry advised it had recognised that there was a common misunderstanding about the extent of OSH’s powers and also a lack of clarity over which agency should investigate certain types of accidents. The Ministry advised that certain proposals were being developed as a result, including:

  • the establishment of an incident register where accidents such as the one that befell the student are made known to the Ministry at an early date; and

  • the establishment of a format for investigation whereby circumstances requiring remedial action are identified and appropriate remedial action is implemented.

Further, the Ministry had produced a new and detailed guideline for Boards of Trustees on providing a safe physical and emotional environment in respect of outdoor education. It expected that the establishment of the incident register and a format for investigation would provide greater oversight.

After considering the circumstances of this case in light of the provisions of the HSE Act, the Ombudsman formed the view that it was not unreasonable for OSH to have decided that it had no statutory jurisdiction to investigate the accident as both the circumstances of the accident and its location did not seem to meet the legal requirements set out in the HSE Act.

On the wider front, it seemed to the Ombudsman that the Ministry of Education had acknowledged there was a lack of clarity in the accountability mechanisms in place and had initiated steps to address this. Although the Ombudsman did not have a direct role in this process, he asked the Secretary of Education to keep him informed of the Ministry’s progress. The Ombudsman also wrote to the Minister of Labour advising of his investigation and the accountability gap that he had identified during the course of his enquiries.

The Ministry kept the Ombudsman informed of its policy development. By February 2004 the Ministry was able to demonstrate:

  • considerable progress in establishing a National Incident Database with joint commitment to its establishment and maintenance from various organisations;

  • development of an incident review process for serious incidents that occur in School Education Outside the Classroom (EOTC) programmes;

  • implementation of professional development training for its local and regional office staff who have responsibility for liaising with schools in the event of a traumatic incident; and

  • planning for inter-sector discussions with OSH and the Police to clarify student safety, incident investigations and school accountability regarding EOTC activities.

In light of the above the Ombudsman was satisfied that progress was being made and he concluded his involvement on this basis.

This case note is published under the authority of the Ombudsmen Rules 1989. It sets out an Ombudsman’s view on the facts of a particular case. It should not be taken as establishing any legal precedent that would bind an Ombudsman in future.

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