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

B: Content of the definition

Knowing which types of harm to notify is causing the most problems for duty holders

We have based the review on how the definition is used to define the duties imposed by the various sections of the Act. But, of the various uses, the most emphasis has been placed on the requirement to notify and report cases of serious harm.

Consultation with stakeholders had indicated that it was this use that caused the most problems. Failure to notify or report an occurrence of serious harm is an offence. Although prosecutions are unusual, an inspector aware of a failure to report may now issue an infringement notice to an employer or other person who has received prior warning for a "similar matter". Although no infringement notices have been issued on this basis, their potential use is an additional incentive for clarity.

Clarity can only be expected to improve other uses of the definition.

Deciding which hazards are "significant" is less of a priority

Employers advised us that they tend to manage all identified hazards, without necessarily making the distinction between those that are "significant" or not.

Inevitably, reports of new categories of serious harm (i.e. types previously not included) will result in the associated hazards receiving additional consideration from the employer or other person required to manage hazards.

QUESTION 1. Should the review focus primarily on the use of the definition to describe notification requirements?

Harm may be described in a range of ways - which is best?

The four clauses of the revised draft definition follow the same broad approaches to categorising and capturing illness and injury that are contained in the existing schedule. But, we considered other ways of structuring the definition.

The Factories and Commercial Premises Act 1981, which was repealed by the HSE Act, contained a reporting requirement for all workplace injuries or illness involving more than 48 hours absence from work - but excluded many occupational illnesses and gradual process injuries as a result. That Act also covered a much narrower range of workplaces.

We considered different ways of grouping or categorising the different types of harm that are considered "serious". Should, for example, trauma injuries be distinguished from those requiring diagnosis by a medical professional? Or should the degree of harm be determined entirely by the time spent away from the workplace?

In practice, no single approach is likely to provide a complete solution. One may "catch" injuries more effectively than illness, while another may avoid dangerous incidents, or not include harm that occurs over a long period, such as noise-induced hearing loss or gradual process injuries.
Other approaches for categorizing types of harm include:

• injuries vs illness;
• confirmation of the harm on diagnosis vs occurrence;
• "inclusive" descriptions vs "exclusive" lists; or
• distinguishing between different periods of incapacity or the gravity of harm.

An example of one way that serious harm may be grouped is into three categories:

• trauma injuries, whether or not they cause permanent or temporary severe loss (e.g. crushing or other injuries from being caught in a machine);
• gradual process injuries or disease, notifiable on diagnosis (e.g. carpal tunnel syndrome, or solvent-induced neurotoxicity); and
• incidents where an employee or other person is in grave danger (e.g. accidental contact with an underground mains power supply).

This is the approach taken by the United Kingdom "RIDDOR" Regulations, with a list provided for each category.

We have not classified incidents of harm in this way in the draft. This is because of the comprehensive coverage achieved by combining the time-activated standard for "temporary severe loss" in clause 1, and the requirement for hospital admission or specialist medical treatment in the proposed clause 4.

Why not use lists?

An alternative approach, which we considered and then decided against, was to split the existing first clause into two clauses, one listing injuries leading to permanent or temporary severe loss, and another listing occupational diseases or gradual process injuries, which would be reportable when an employer, self-employed person or principal learns of the diagnosis.

As noted above, this is the approach taken in the UK regulations. But we did not use it in the draft because it was considered unnecessarily complicated, while potentially restrictive of new or unusual illnesses that may arise. Lists, by their nature, tend to be incomplete, regardless of their length or complexity.

A specialist in occupational medicine suggested that the categories of injury would be based on an artificial distinction, because, in practice, there is often a causal link between trauma injury and chronic occupational injury or disease
(see below).

The draft refers collectively to "injury or disease"

The wording of the first clause of the draft is intended to capture any physical symptoms or effects of injury. The phrase was chosen as being consistent with the injury=illness=injury principle of occupational medicine, which recognises that trauma injury may lead to either acute or chronic symptoms (the latter of which may be diagnosed as "disease").

For example, many repetitive strain injuries will heal if the sufferer rests, but if the activity causing the injury persists, the damage may be more serious, and described as "gradual process injury". Therefore, the intention is not to restrict "injury" to trauma injury, and the use of the words in brackets "including that caused by gradual process" clarifies that conditions such as OOS are included. The definition of "personal injury caused by a work-related gradual process, disease or infection" provided in s30 of the Injury Prevention, Rehabilitation, and Compensation Act 2001 will complement the use of the phrase.

Because it is not qualified by the lists of injuries and diseases used in the existing schedule, the phrase will include a range of injuries that are currently excluded. In particular, the draft will capture all cases of strains and sprains leading to more than the specified time away from normal duties.

Burns are no longer described separately

The proposed first clause will include burns leading to the specified number of days away from normal duties. In addition, those requiring hospital admission or specialist medical treatment will be caught by the proposed clause 4. These were previously described in a separate clause, which is now unnecessary.

Clause 1 is only concerned with "loss of bodily function", not mental harm

The first clause is intended to capture only physical injury or disease, i.e. not mental or psychological harm.

Mental harm arising from workplace activities, which is explicitly recognised by the amendment, will be caught by the proposed clause 4 in any case resulting in specialist medical treatment or hospital admission.

An alternative suggestion for dealing with stress and fatigue was by a separate clause concerning, for example, "any case of work-related stress or fatigue leading to five or more days off work on the advice of a medical practitioner". This approach was considered and rejected. We felt that it could lead to confusion about whether the stress or fatigue is the cause of the harm or the harm itself. Also, it could lead to inaccurate diagnoses being made in the early stages of managing cases of work-related stress or fatigue.

This could, in turn, lead to confusion surrounding reporting requirements and potentially lead to unnecessary or premature reporting of what are often difficult situations for employees and employers. It is not unusual for a period of leave to be taken as an agreed plan to manage stress, and it is doubtful that the health and safety inspectorate's involvement in these situations at an early stage would always help resolve a workplace problem of that kind.

It is also important to remember that, while the 2002 amendment recognised workplace stress and fatigue as sources of harm, they are the causes, but not the harm itself.

Instead, the intention of the draft definition is that stress and fatigue related disorders should only be notifiable to the Department of Labour after diagnosis by a specialist medical practitioner, i.e. a psychiatric diagnosis (see below).

Any permanent loss of bodily function continues to be serious harm

The first clause includes any case of permanent loss of bodily function, as does the existing schedule.

However, while the existing First Schedule limits the types of permanent loss to a defined list of conditions, the draft doesn't. As a result, any permanent loss will be included, such as that resulting from soft tissue injury, and also noise-induced hearing loss, respiratory disease and numerous other diseases and conditions not currently included.

Conditions included in the Department of Labour's Notifiable Occupational Disease System (NODS) will be caught by this clause. (Although, in practice, NODS reporting tends to be by employees and health professionals some time after the employment that led to the exposure to the hazard has ended.)

There could be further debate in the courts over just how "permanent" the damage needs to be. Is, for example, a ruptured Achilles' tendon or knee ligament a permanent loss of bodily function?

Extending this category, along with that of "temporary severe loss", will have compliance implications for employers and others, as well as the health and safety inspectorate, who will need to review more cases of soft tissue injuries in particular. These cases are not covered by the current definition (see discussion below).

The phrase "temporary severe loss" is retained

Initial consultation confirmed that all groups want to retain the phrase "temporary severe loss", but that its meaning needs to be clarified. Stakeholders said that the words state the intention of the clause, which is important for interpretation.

We have therefore decided to retain the phrase, while defining it with a time-activated measure.

Harm to non-employees is included

The definition of "temporary severe loss" is based on being unable to perform normal duties for a specified period. A person's injuries might lead them to be unable to carry out normal duties elsewhere - at another workplace, in their home or another place - and this would still be "serious harm". This is consistent with the existing definition.

QUESTION 2: Is the avoidance of lists in the definition appropriate and effective?

QUESTION 3: Is there sufficient inclusion of gradual process injuries?

QUESTION 4: Should clause 1 be limited to "bodily function"?

QUESTION 5: Should the phrase "temporary severe loss" be retained, while supplemented with a time-activated definition?

QUESTION 6: Will there be sufficient inclusion of "temporary severe loss of bodily function" for non-employees?

Time away from "normal duties" has been chosen instead of absence from the workplace

Having decided to define "temporary severe loss" as a period of incapacity, the next question is how to describe the incapacity.

The period of incapacity needs to be described simply and clearly. Although a range of parameters could be used, we felt it came to a choice between time away from "the workplace", or from "normal duties".

"Perform their normal duties"

We chose this wording for the draft because it best reflects a loss of bodily function with respect to the work that an employee is engaged to do. It is also the least ambiguous. As discussed above, it will also provide coverage in the less common situations of harm occurring to non-employees.

Various stakeholders emphasised the importance of rehabilitation, and the benefits of an early return to work. They suggested that a definition based on time away from the workplace would encourage this. We felt that encouraging an early return to work shouldn't be at the expense of an accurate reflection of the harm that had been done in any situation.

Other stakeholders favoured basing "temporary severe loss" on time away from "normal duties".

They described it as a better reflection of the loss of bodily function and more consistent with the Act's object of promoting the prevention of harm to all persons at work and to persons in, or in the vicinity of work. We agreed for the purposes of preparing the draft.

An alternative wording was suggested as "being unable to carry out their usual range of duties". This would cast a wider net than the draft, because it refers to any restriction in the range of activities which an employee would normally be able to carry out. It is also potentially ambiguous, as the person reporting is effectively required to assess the injured person's normal capacity.

Instead, "normal" was chosen for the draft. It provides greater coverage, with sufficient flexibility. The wording could, for example, exclude a situation where an injured orchard employee was fit for spraying work, but not fit for pruning from ladders.

The employee's "normal duties" would be those she or he would normally carry out at the time of the impairment, not a hypothetical range of activities throughout the year. So, to return to the example of the injured orchard worker, the "temporary severe loss" of bodily function might be considered serious harm during the pruning season, but not at a time of spraying.

We consider this degree of flexibility is necessary, because the list of a person's normal duties provides the best objective measure for determining fitness for work. This is the case whether or not the person injured is an employee of the person reporting. Explanatory materials will be needed in support of the definition itself.

QUESTION 7: Should the definition of "temporary severe loss" be based on absence from the workplace, or, alternatively, being unable to complete normal duties?

The period for "temporary severe loss"

In deciding on the appropriate number of days, we need to consider:

• whether the days should be consecutive, or within a period, such as a month, of the event or injury;
• whether the number of days applies to absence from the place of work or inability to complete "normal duties" (see above); and
• what will provide simplicity and clarity for users of the definition.

The draft uses a period of "for more than 7 calendar days"

Subject to further submissions, we have used the seven-calendar-day threshold in the draft because it:

• gives consistency with entitlements to "weekly compensation" under the Injury Prevention, Rehabilitation, and Compensation Act 2001, and for statistical purposes;
• is a reasonable compromise that will capture most serious trauma cases;
• will cover a period of rostered time off in most cases; and
• is consistent with the period suggested by the officials' committee which reviewed the definition in 1997.

The days of absence need not be consecutive, but they must be causally linked to the accident, exposure or other incident that led to the harm. As an example, if a person suffers an injury and doesn't work for two days, returns to work for two days, and is then absent for another six days from the same injuries, the period of absence is considered to have exceeded seven days.

A majority of stakeholders said there would be advantages in keeping the number of days to the same as that for an ACC claim for earnings-related compensation for work-related personal injury. It would provide:

• consistency for employers and others;
• administrative convenience (through a consistent diagnosis and documentation); and
• comparability of data (although, correlation between the two sets will not be complete).

Others saw little to be gained from any attempts to achieve consistency between the two sets of data.

A further point that was made was that any gains in the comparability of statistics should not impinge on the workability of the definition for the purposes of compliance with the HSE Act.

Some employers suggested using a longer period of incapacity. They said this would exclude cases where other factors than the harm itself - such as tiredness, adjustment issues, leave, or other influences - affected the amount of time an employee spent away from the work.

Departmental medical practitioners (appointed under the HSE Act) are concerned to identify the most significant cases for the practice of occupational medicine. For the purpose of this role, they suggested a 14-calendar-day threshold. They also advocated using a period of time which required an overlap with two shift periods (i.e. including at least one weekend or rostered day off). Their view was that for most workers, this would help to avoid the complications of other causative factors where there is incapacity through gradual process or disease.

The health and safety inspectorate are more concerned with trauma injury. They described the advantages of earlier reporting for effective intervention in the workplace, and emphasised the need to deal with harm before a situation became too severe. For the purpose of this role, the inspectorate suggested that the period of incapacity should not be any longer than five, or at most seven days.

As noted above, earlier legislation had required notification of any injury resulting in two days' or more absence from the workplace. Although it has not been the law since 1992, the requirement - although applying only to employees in specified workplaces, and deficient with respect to occupational illness - was widely understood by employers and referred to by some of the groups consulted.

QUESTION 8: Is seven days an appropriate period of incapacity, and if not, what is, and why?

How the effects of stress and fatigue are included in the definition

Legislative change suggests that the definition should include a reference to mental harm. Section2 of the HSE Act was amended to include harm caused by stress and fatigue, and we propose that the definition of serious harm is consistent with this. The draft therefore includes a reference to "mental harm", as opposed to the current reference to "bodily function" only (see discussion above).

We consulted stakeholders on the best way to include mental harm - whether explicitly by inclusion in a list of occupational diseases, or implicitly through reference to hospital admission or treatment by the appropriate medical specialist. This is discussed below.

Clause 4 refers to "physical or mental harm"

The extension of coverage gives effect to the new recognition of stress and fatigue as causes of hazard and harm.

"Mental harm" is the phrase used in the amendment to section 2 of the Act. The draft refers to harm requiring "treatment by a medical practitioner who is a registered specialist operating within their scope of practice", i.e. by a psychiatrist. For consistency, the term "medical practitioner" has been used to describe the specialist directing treatment in response to the diagnosis.

Any case requiring hospital admission would also be serious harm. As with other types of harm, there would need to be a clear causal link between an incident or conditions in the workplace and the diagnosed mental or nervous illness.

This would have the effect of bringing such cases to the attention of employers as pointers to "significant hazards" in the place of work, which they are in turn obligated to manage. Only cases with diagnosis by a medical specialist would come to the notice of the Department of Labour. Of those, the inspectorate would investigate only in appropriate circumstances.

This approach will complement employee participation requirements, by encouraging the discussion and resolution of stress and fatigue issues within the workplace. At the same time, questions surrounding privacy, or other complications from early involvement by the Department of Labour will be avoided.

Other options for including mental harm

Two other options were considered and rejected. The first involved the inclusion of specified types of psychiatric illness (e.g. using the DSM IV⁽¹⁾ diagnostic criteria) in a list of occupational illness or disease diagnoses.

(1) Diagnostic and Statistical Manual of Mental Disorders, Fourth Edition. Published by the American Psychiatric Association, Washington DC 1994. This document is the pre-eminent diagnostic reference for mental health professionals in the US, and is widely used in NewZealand.

This option was not available after a decision was made not to use lists in the draft definition.

It would also be difficult from the point of view of legal drafting, where there are constitutional difficulties with incorporating other documents or standards into legislation.

(In practice, only a particular edition of such a document as DSM IV may be referred to in legislation. This can remove the flexibility that is sometimes seen as a reason for referring to an alternative authority.) Further, we felt that employers and others would find such an approach unduly complex and difficult to comply with.

The other option considered was the insertion of a separate clause: "Exhaustion or physical or psychological illness requiring more than seven calendar days' absence from work on the advice of a medical practitioner". This option was rejected as not requiring a sufficient degree of precision in diagnosis. We felt that many of the cases reportable under such a clause would arise from multiple causes, and involve combinations of work/life factors, with other influences on, and illnesses in, the patient. This could, in turn, lead to a wide range of responses from different medical practitioners.

QUESTION 9: Has "mental harm" been adequately caught by the draft definition?

Trauma injuries or events that suggest significant hazards, or danger to the injured person

Clause 2 will capture all cases of "amputation or surgical removal"

The explicit reference to any case of amputation has been maintained. This is because, although clause 1 of the draft definition includes any case of permanent loss of bodily function, it would include most, but not all, cases of amputation.

The use of the term "or surgical removal" includes any case of the loss of an eye or subsequent surgical removal of any body part as a result of an injury. The term was chosen instead of "enucleation", which had been suggested by the medical profession, but was felt would be unclear to a lay audience.

The district court case law concerning the meaning of "amputation" is unclear, and interpretations have ranged from including any case of the removal of the very tip of a finger, to a considerably higher threshold. There is scope to further qualify the phrase to avoid less serious cases of amputation.

The UK "RIDDOR" regulations, for example, exclude cases where a single digit or part of a digit is removed. However, this approach was not taken for the draft because it was suggested that such a high threshold would contradict the "permanent loss of bodily function" element of the draft's first clause. Also, from an injury prevention perspective, an amputation will usually suggest a relatively straightforward hazard control, and it would be inappropriate for the definition to imply that a hazard that caused serious harm was not a "significant hazard" that required fixing.

"Surgical removal" includes the removal of, for example, a tumour or carcinoma arising from an occupational illness. This further strengthens the coverage of occupational illness.

As discussed below, the draft also extends coverage to some further types of trauma events not previously covered.

Clause 3 will include all cases of "loss of consciousness or acute illness"

This will capture a range of situations, such as decompression sickness, electrocution, carbon monoxide poisoning, acute poisoning or contact with toxic fumes, and falls from heights.

These are events where the person is in grave danger and, even though a threshold of "permanent" or "temporary severe loss" may not have been crossed, the employer or other person reporting should be on notice that they must deal with a significant hazard. The health and safety inspectorate should also be informed of the incident and decide whether or not to investigate.

The clause takes a different approach to the existing definition, which describes loss of consciousness from lack of oxygen, as distinct from loss of consciousness or acute illness from various forms of poisoning. In addition, it is important to note that all of the conditions or incidents involving poisoning or lack of oxygen that are currently covered, will remain so, as well as the new conditions discussed below.

The seriousness of the illness or injury is defined by the need for treatment

The terminology describing the level of medical treatment required under proposed clauses 3 and 4 has been updated for consistency with the Health Practitioners Competence Assurance Act 2003. (In connection with burns, clause 3 of the existing definition refers to "specialist registered medical practitioner or specialist outpatient clinic", and clause 6 refers only to "hospitalised for a period of 48 hours or more commencing within 7 days of the harm's occurrence".)

In clause 3 of the draft definition, the term "acute illness" is qualified by "requiring treatment by a medical practitioner". The phrase describes a doctor of medicine, either in general practice or practising in a specialist branch of medicine. The qualification sets a threshold for treatment of the "loss of consciousness or acute illness" at a level beyond that of requiring first-aid, and also beyond merely being examined by a doctor. To qualify as serious harm under this clause, a diagnosis followed by treatment would be required.

By contrast, in clause 4 the phrase "treatment by a medical practitioner" has, in turn, been qualified by "who is a registered specialist operating within their scope of practice" to require diagnosis and/or treatment at a level of specialisation beyond that of general practice. However, the word "surgery" would, presumably, include that carried out by a general practitioner. See below for a description of clause 4.

"Contact with any energy source"

The existing definition excludes many cases of electric shock. Although it captures cases leading to burns requiring specialist medical treatment, there is no specific reference to electric shock. Because of the omission, only cases involving hospital admission, or defined types of temporary severe loss of bodily function are caught (e.g. neurological or dermatological symptoms, or loss of vision).

Serious cases of electric shock are reportable under the Electricity Act 1992, which defines various competency and safety requirements for the industry. However, recent amendments to the Electricity Act 1992 and the Gas Act 1992, including incident reporting regimes that complement that of the HSE Act, mean the definition will need to capture all serious cases of electric shock.

In terms of the energy supply industry, the proposed new clause requires reporting of any incident involving:

• loss of consciousness or acute illness requiring treatment by a medical practitioner; and
• explosions or incidents involving contact with machinery or energy supply.

"A fall or physical impact"

Because falls often highlight an ongoing hazard, the intention is to use a lower threshold than the "temporary severe loss" category of clause 1 provides. The draft would catch any case leading to unconsciousness or acute illness.

We considered extending coverage only to falls from a specified height, or only to those that occur on notifiable work. But this was not felt to be necessary because of the corresponding requirement that there be acute illness or a loss of consciousness requiring medical treatment.

"Physical impact" has been included to capture incidents arising from unsafe conditions, and possible cases of concussion or other injuries. It could include such agents of the harm as falling objects, projectiles from machinery or other sources, kicks by animals or assaults of a serious nature.

QUESTION 10: Should all cases of amputation or surgical removal of body part be included in the definition?

QUESTION 11: Is there sufficient coverage of dangerous incidents or events to highlight "significant hazards" in workplaces?

Clause 4 includes all cases involving hospital admission, surgery or specialist medical treatment

Clause 4 is intended to capture any cases of "physical or mental harm" requiring hospital admission, surgery or specialist medical treatment. This is in addition to the coverage provided by clause 1, which is concerned only with loss of "bodily function". As discussed above, this extended coverage gives effect to the legislative recognition of stress and fatigue as types of hazard and harm.

We expect that, while the more obvious forms of occupational injury and disease will be caught by clauses 1-3, clause 4 will capture the less obvious forms of illness and disease with more involved processes of diagnosis and/or treatment. This would include, for example:

• long-latency diseases such as occupational cancers or respiratory disease, or
• diseases arising from prolonged exposure to hazards, such as solvent-induced illness, or
• symptoms arising from exposure to compounds such as aldehydes, or organochlorines.

For such cases to qualify as serious harm where there has not been a hospital admission or surgery, there would need to be a diagnosis by a specialist medical practitioner in the appropriate scope of practice.

The reference to surgery will capture not only more serious cases, but also minor surgery, such as the removal of metal shards, grease or other foreign bodies from a wound, or the eye.

The Concise Oxford Dictionary (eighth ed,) defines surgery as: "the branch of medicine concerned with treatment of injuries or disorders of the body by incision, manipulation or alteration of organs etc., with the hands or with instruments". This means that, unless it is narrowed by the courts, the definition will include a wide range of cases.

Alternatively, to limit coverage, it may be appropriate to place a limit on the time between the incidence of the harm and any hospital admission, treatment by a medical specialist, or surgery that results. This could, for example, differentiate between "first-aid" type treatment of harm - where there may not have been permanent or temporary severe loss of bodily function - and, more pressing surgery to repair trauma injuries. Against this must be weighed the possibility of confusion surrounding the treatment of occupational illness or disease with long latency periods.

QUESTION 12: In clause 4, is there a need to include a time limit between the occurrence of the injury itself and the treatment provided?