They could make an ACC claim.

We can also cover mental injuries if you've experienced, seen or heard a traumatic event at work. — ACC.co.nz

It looks like the PCBU has successfully argued that the PTSD harm was both secondary and unforeseeable.

The ACC route seems to be the right "legal" option in this instance, but morally the PCBU should also provide as much support as possible to the employee during their rehabilitation, although these court cases would not have helped that process!

It looks like the PCBU has successfully argued that the PTSD harm was both secondary and unforeseeable. — Chris Hyndman

My understanding of the case was they were appealing the decision that the first responder (who was originally awarded $45,000 in reparation) was not classed as a victim as defined in the Sentencing Act, and therefore they were not a victim of the offence and thus reparations can not be imposed on the PCBU for their emotional harm.

ut morally the PCBU should also provide as much support as possible to the employee during their rehabilitation, although these court cases would not have helped that process! — Chris Hyndman

There seems to be some really shitty companies/directors/owners out there - remembering that they only appealed the $45k, and they had to pay for the cost of the appeal and now the potential bad press... instead of sucking it up and moving on - but hey, that's business!
Was reading some other case notes the other day where another company was claiming they should get a discount on their fine as they had shown remorse for the offence... the judge ridiculed them as their evidence of this remorse was a 5 page letter sent to the paralyzed worker which spent most of the letter expressing his disdain of employing the worker...:gasp:

I think the PCBU is quite rightly admitted the criminal offence of failing to control the risk of the falling beam, but argue that the responder developing PTSD is not a criminal offence under the act (and recompense should be sought through ACC).

I'm not losing sight or being dismissive of the tragedy involved in this case, but going forward this will be an important bit of case law and will make things a lot clearer to H&S Professionals on where the law stands on the difference between probable and foreseeable risk.

Hopefully this is discussed in the upcoming LegalSafe Conference.

From the case notes:

[6] Pegasus appeals only in relation to the order to pay reparation to Mr [...]. It does so on the basis that he is not a victim as defined by the HSWA and is therefore ineligible for reparation. — [2019] NZHC 2257

Agree that this will be an important piece of case law, but it will be regarding the precedence of how far the extent of eligibility for reparation for emotional harm reaches in relation to an offence under HSWA.

I'm not so sure, I think section 5 of the General Risk and Workplace Management Regs just become a whole lot clearer.

5. Duty to identify hazards

A PCBU, in managing risks to health and safety, must identify hazards that could give rise to reasonably foreseeable risks to health and safety.

How? There was no reference in the appeal to how the duty to identify hazards was applied by the judge/courts in the original sentencing, so how can this appeal clarify how that regulation is applied?

Case law is only relating to the specifics in which the decision is made by the courts/judge. The appeal was not made regarding the facts of the case that the first responder suffered from PTSD due to the events or that there was a risk in the workplace due to the hazard of the beam lifting/falling that should have been identified (as an appeal is on how the legislation was applied, not the facts of the case). The appeal was regarding if reparation should have been imposed for emotional harm on the basis that they were a victim (as it is legally defined).

Hi Matt,

I'll draw a line under this interaction after this post as I fear we are in danger of entering Twitter territory with these exchanges :smile:

Firstly I never said Section 5 was going to be used as case law (I've already said foreseeability is the biggest learning).

By mentioning section 5 becoming a whole lot clearer, I refer to the original case ruling on which this appeal was based (S36, reasonably practicable duty of care) which I rightly or wrongly interpret as effectively saying it was reasonably practicable for the PCBU/Risk Assessor to have identified and assessed the subjective mental wellbeing of the victim as being a consequence of a consequence. I'm not sure we would get many people volunteering to carry out this activity if we have to delve that far into the unknown (PTSD could also occur for a person witnessing a near miss).

Fair enough Chris :smile:

My final comments on our conversation, if we are talking about the original case I think we would be having a different conversation (or none at all) if WorkSafe had of made the distinction between:

• the PCBU's failure to manage the risk of the beam falling, and
• the PCBU failing to manage the risk of physiological harm due to a worker being involved in an event as part of their work (or even being present at or reasonably connected to the event)

If the PCBU had of also been charged with the second point I think the award for reparations for emotional harm would possibly have been upheld. Unfortunately it was not...

Also if it was considered in this way (two separate offences) it would be clear who has the duty for organisations like the fire services / police / ambulance services to manage the risk of PTSD after traumatic events. If the original interpretation at sentencing was upheld (loosely being that psychological harm of other people not directly injured is included in the single offence of failure to manage the physical risk), then it could possibly have followed that a PCBU would owe a legal duty to manage the risk of PTSD to the workers of the emergency services that are responding to an event that it had caused... which most people would consider a bit absurd as it is typical of the work that the emergency services do and so the duty should be on them to manage the risk to their own workers.