A discussion paper on the revision of the definition of serious harm

A: Introduction

The definition has several important uses

"Serious harm" is a key concept for hazard management and notification of harm. It has four uses under the Health and Safety in Employment Act 1992, as amended in 2002, by defining:

1. What is a "significant hazard" and so must be managed by an employer (under the hierarchy of actions set out in sections 7-10);
2. Which occurrences of harm or accidents must be notified and reported to the Department of Labour (or Maritime NewZealand or Civil Aviation Authority), and when an accident scene must be protected until investigated (sections 25 and 26);
3. The degree of harm that creates the most serious (section 49) offences under the Act; and
4. The work that employees may refuse because it is likely to cause them serious harm (new s28A).

The 2002 amendment made explicit the right to refuse unsafe work. It also made it explicit that harm caused by workplace stress is covered by the Act's definition of "harm" and "hazard" (s2 (1)), and meaning that stress and fatigue must be managed like any other hazard, and that a fatigued person is a potential hazard.

Because the Act's processes rest upon the definition of serious harm, a simpler and clearer definition will assist employers, employees, health and safety inspectors, and others, to achieve compliance with the law.

The definition is also linked to accident and incident notification requirements under energy legislation and the Hazardous Substances and New Organisms Act 1996.

The reliance on a single defining term is unusual

Overseas jurisdictions, including those with performance-based health and safety legislation like New Zealand's, do not place the same reliance on a single term to define the scope of such a range of duties and processes. The United Kingdom, for example, maintains specific regulations requiring the reporting of occupational illness and injury and dangerous incidents (the 1995 "RIDDOR" Regulations).

Australian states' health and safety legislation is concerned with the management of "risk" in workplaces. This means that the legislative duties are not phrased in terms of controlling hazards to prevent "harm". So there is no need to set a threshold such as "serious harm".

The existing definition was intended to be temporary

The HSE Act, s2, defines serious harm as "death, or harm of a kind or description declared by the Governor-General by Order in Council to be serious for the purpose of this Act". On enactment in 1993, an interim definition of "serious harm" was set out in the First Schedule to the Act (see appendix1).

The intention was that it would be replaced by Order in Council (effectively a regulation) within a short time. However, since the Act was passed, no order has been made to amend the definition in the First Schedule.

The definition is ambiguous in certain key areas, particularly through the use of the phrase "temporary severe loss of bodily function" in the first clause. This has led to practical difficulties and inconsistent interpretations among employers, and the health and safety inspectorate. Operational guidelines have not solved the problem.

Also, some types of incidents and injuries have not been covered.

An earlier review wasn't implemented

The definition of "serious harm" was first reviewed in 1995 by a Department of Labour working party, which considered a range of issues concerning its use. However, the results of the review were not implemented.

The review had recommended that the definition be changed to replace the term "temporary severe loss of bodily function" with the words "which are likely to render a person unable to carry out normal employment duties for 7 calendar days". Public consultation was undertaken in 1997, and found broad support for the proposal.

Following consultation with the Ministry of Health, a reference to burns "requiring referral to a specialist registered medical practitioner" was replaced with a reference to treatment by a "general medical practitioner". This was considered more consistent with current practice.

A regulation was drafted, but did not proceed.

Recent discussion and review is consistent with the amended legislation

This review was originally begun in 2002, between the passing and coming into force of the HSE Amendment Act 2002. After initial consultation, the decision was made to defer the process until the new legislation was better established. The process was resumed in November 2004. It is being led by the Workplace Group of the Department of Labour, in consultation with Maritime New Zealand (MNZ) and the Civil Aviation Authority (CAA).

In 2002, as a preliminary to the review, officials consulted with stakeholder groups (listed in appendix 2). This was to identify any key concerns for discussion in this document. Because the amendment Act had been passed, if not in force, at that time, this step has not been repeated.

Since this consultation, the amendment has extended the reporting requirements to principals and the self-employed. Employers must also now report occurrences of serious harm to non-employees in places of work they control.

These changes have made the definition relevant to more dutyholders or potential dutyholders. In addition, employees now have the right to refuse work that is likely to cause them serious harm.

The views expressed in this document are those of the Department of Labour, as reviewers. For convenience the collective pronoun "we" is used at different points in the document.

Issues raised by stakeholders

Stakeholders raised the following issues, all of which we discuss in more detail later:

"Temporary severe loss"

This phrase is difficult to interpret and use. Stakeholders agreed that a change to a time-activated standard would provide clarity. It is clearly suitable for more straightforward physical injuries, but less so for gradual process injuries or disease.

Some groups said it would be desirable to make the definition of the phrase more consistent with that of "first week of incapacity" used in the Injury Prevention, Rehabilitation, and Compensation Act 2001.

Recognition of mental harm

Unions commented that the existing definition is concerned only with physical injury, at the expense of psychological or mental harm. They felt that this was inconsistent with the recognition given to harm caused by work-related stress by the amendment. (Although non-physical harm requiring hospital admission is caught by clause6 in the current definition.)

Employer groups felt that further consultation with the appropriate professional groups is necessary before a decision is made on which, if any, conditions are included in the definition to reflect the amendment.

In practice, few cases of work-related stress have come to the attention of the Department of Labour - either through complaints from affected employees or their workmates, or as a basis for personal grievance actions.

Electric shock

The electrical supply industry agreed that serious cases of electric shock should be included. Proposed amendments to energy supply industry legislation will increase the role of the HSE Act, further supporting this view. Inclusion will complement recent amendments to the Electricity Act and the Gas Act. These amendments require the reporting of "serious harm" and "significant property damage".

The Electricity Act defines serious harm in a manner that is consistent with the proposed definition, while the Gas Act's definition uses that of the HSE Act.

These acts also provide that reporting completed to one agency is deemed to meet reporting requirements under other legislation, and requires agencies to transfer data as appropriate.

Cases of unconsciousness

There are gaps in the coverage of some cases of unconsciousness - where the unconsciousness results from a physical blow, a fall, or contact with an energy source.

Hospital admission

There was agreement that 48 hours in hospital is too high a threshold, and is out of step with current medical practice.

Any changes made which refer to the level of medical treatment given will need to be consistent with the Health Practitioners Competence Assurance Act 2003.

What the draft definition proposes

A draft definition has been prepared and is reproduced in the panel on the following page. It has:

1. Removed the list of injuries and illness currently included in the first clause.
   As proposed, this would define "temporary severe loss of bodily function" as including, but not necessarily limited to, "any case where a person is unable to perform their normal duties for more than 7 calendar days".
   Section 25(3) requires notification to the Department of Labour of any such harm as soon as the degree of incapacity becomes clear.
2. Deleted the current reference to burns, which will be caught by either the proposed clause 1 or clause 4.
3. Extended the coverage of the existing clause 5 to include cases of acute illness or loss of consciousness which were previously excluded, i.e. from a fall or physical impact, or from contact with an energy source.
4. Amended clause 6 to remove the requirement to spend 48 hours in hospital. The clause has been extended to include "any physical or mental harm that requires hospital admission, surgery, or treatment by a medical practitioner who is a registered specialist operating within their scope of practice".

Draft definition

We have prepared a draft definition after initial discussion with stakeholders. Its purpose is to provide a basis for wider consultation.

It should be noted that s2 of the HSE Act will continue to define "serious harm" as

"death, or harm of a kind or description declared by Order in Council to be serious for the purposes of this Act".

Each of the underlined phrases is discussed below.

1. Injury (including that caused by gradual process) or disease which causes:
   1. permanent loss of bodily function; or
   2. temporary severe loss of bodily function (including any harm causing the person to be unable to perform their normal duties for more than 7 calendar days); or
2. Amputation or surgical removal of body part; or
3. Loss of consciousness, or acute illness requiring treatment by a medical practitioner from:
   1. lack of oxygen; or
   2. absorption, inhalation, or ingestion of any substance; or
   3. contact with any energy source; or
   4. a fall or other physical impact; or
4. Any physical or mental harm that requires hospital admission, surgery, or treatment by a medical practitioner who is a registered specialist operating within their scope of practice.