Welcome to the October 2010 OH&S Newsletter
This month is global ergonomics month so we shall focus on human factors in our articles as we examine Penalties, Repeat incidents & contractors; Stress, Stand up desks & noise; Part suppliers & Bonuses; Experience, Guarding & Production; Accepted practice and Welding fumes.
The greater the harm the lower the penalty?
US researchers have reported in the Journal Social Psychology & Personality Science that the more people harmed by a company's negligence, the lower the court penalty is likely to be. Loran Nordgren & Mary McDonnell found that this phenomenon held up in both theoretical & real life cases. Their examination of the sentences in US court cases found that where people were found guilty but where the numbers of victims varied so too did the penalty. The researchers examined 136 representative cases between 2000-2009 in which individuals from company’s had been found guilty by juries of negligently exposing members of the public to asbestos, lead paint or toxic mould, & where their victims had all suffered significantly. They confirmed those who harm larger numbers of people get significantly lower punitive damages than those who harm a smaller number.
Some more cynical commentators have suggested that factors that may play a contributory role include 'cases where lots of people were harmed may involve larger companies, with more expensive & competent lawyers, for example, or larger and more deniable lines of responsibility however it's hard to discount the contributory effect of empathy, a phenomenon we all recognise i.e. if we can’t relate to the situation we are not likely to empathise. This is sometimes described in the statement that workplace fatality statistics are people with the tears wiped away. When you only see the numbers and not the victims, in what the study authors term 'the scope-severity paradox', the human cost is disguised & the penalty based on the findings of this research seem to be reduced. This does seem unusual as presumably in these cases there is some focus on the impact on the victims but perhaps there is not enough!
What human factors drive repeat offenders?
National waste and recycling company Veolia ES (UK) Ltd has been fined £225,000 (A$360 000) after a worker was killed in a vehicle collision while collecting litter from a busy road. The fine comes less than 8 months after it was prosecuted for another fatality. The latest prosecution followed an investigation by the Health and Safety Executive (HSE) after an incident in 2007 in Kent. Damian Griffiths, an agency worker for Veolia, was litter- picking on a grass verge of the A228 with a colleague, who was driving a caged vehicle used to collect the litter alongside him. A large goods truck travelling in the same direction collided with the caged vehicle, shunting it into Mr Griffiths. The LGV driver escaped serious injury but Mr Griffiths died at the scene. Veolia ES (UK) Ltd was found guilty on 11 August of two criminal safety breaches. It was sentenced and fined £225,000. In February, Veolia was fined £130,000 for safety breaches linked to the death of employee David Ives, 56, who was killed when a 1,100-litre recycling bin fell on his head. What’s stopping improvement?
How well do you know your contractors?
Hopefully better than the US federal government do! Many companies make decisions on which contractors they will engage based on a number of factors including health & safety (HS) performance but sometimes we don’t always act on this information. A recent report from the US Government Accountability Office (GAO) says contractors are routinely receiving lucrative government business even after they had been cited for breaching HS laws. The US's Occupational Safety &Health Administration (OSHA) hit BP $55 million in fines for labour law violations between the 2005 & 2009 financial years. These fines apparently followed HS inspections both before and after a massive refinery explosion where there were 15 deaths & almost 200 injuries; BP was awarded more than $2 billion worth of federal work in 2009.
Upon finding violations in one of Imperial Sugar’s refineries in 2008, OSHA said the company should pay $8.7 million in fines. Of the total, $5 million was related to a refinery factory explosion that killed 14 people & injured more. This firm, benefited from 'about $6.5 million on federal contracts' in 2009, said the GAO report. Seven companies hit with the largest OSHA fines, $3.7 million worth, in the 2009 financial year also received $180 million in contracts. None of the seven federal contractors had been debarred or suspended from federal contracts. We often ask contractors for HS information such as infringement histories but do we interrogate this information or do anything with it? How much of a liability are your procurement practices? Do you know?
Job stress strategies ineffective.
A Melbourne University study has found that depression caused by job stress is costing employers hundreds of millions of dollars a year, yet most workplace interventions are individual-focused & doing little to reduce job stressors. The study, led by Associate Professor LaMontagne of the University's School of Population Health, & funded by VicHealth - found that depression attributable to job stresss (where workers are under high pressure to perform, but have little job control) costs Australian society a astounding $730 million a year. The majority of these costs, LaMontagne says, are borne by employers, through "lost productive time" and high staff turnover.
"This provides a clear business incentive for employers to invest in mental-health-promoting and help-seeking initiatives, as the return on investment is potentially in the tens of millions of dollars," he says. "However, prevalent practice in Australian workplaces remains disproportionately focused on individual-level intervention, with inadequate attention to the reduction of job stressors."
Strategies for the prevention and control of excessive pressure at work are available, and should address depression and other mental illness "while simultaneously reducing work-related contributions", LaMontagne says. "Employers would be the main economic beneficiaries of such efforts, through reduced turnover and improved productivity, while employees would benefit through reduced job stress and improved mental health".
According to LaMontagne, about 13-17% of working men and women respectively suffer from depression attributable to job stress. However, job stress represents only one of a number of work-related psychosocial hazards. Others that are linked to depression include effort/reward imbalance, injustice at work, job insecurity and bullying. So they argue that the costs associated with the impacts of all psychosocial working conditions on depression would be higher than the estimates they have presented.
The picture is obviously worse than this as the costs of mental-health-related WorkCover claims were also excluded from the study. How much is your workplace affected by depression.
LaMontagne, A et al; Estimating the economic benefits of eliminating job strain as a risk factor for depression., Victorian Heath Promotion Foundation (VicHealth), October 2010
Stand up desks to reduce MSDs?
There is no doubt that there has been an increase in musculoskeletal disorders (MSD) associated with more sedentary office based work over the past 20 years. It seems some employers have been embarking on some interesting alternatives to counteract the effects of this type of work. These have included having the option of alternating with a standing workstation in addition to some more lateral ideas such as having personnel operate a computer whilst walking on a treadmill or using an exercise bike. The possibly expected findings from the latter were that key and mouse performance deteriorated significantly when exercising simultaneously with the interaction. The interesting one was that a standing workstation option generally improved personnel mood but made no difference to performance when compared to sitting. It would seem that none of these studies however have focussed on the effect of these alternatives on reducing MSD.
Noisy work and heart disease.
A persistently noisy workplace more than doubles an employee's risk of serious heart disease, a new study has found. The researchers looked at a representative sample of more than 6,000 US employees, aged from 20 upwards, who had been part of the US National Health and Nutrition Examination Survey (NHANES) between 1999 & 2004. This involved detailed household interviews, to include lifestyle & occupational health, medical examinations, & blood tests.
Participants were grouped into those who for at least 3 months endured persistent loud noise at work, so that it was difficult to talk at normal volume, & those who did not. Workers in persistently noisy workplaces were between 2-3 times as likely to have serious heart problems as their peers in quiet workplaces.
This association was particularly strong among workers under 50, who made up more than 4,500 of the total sample. They were between 3-4 times as likely to have angina or coronary artery disease or to have had a heart attack. The blood tests of these workers did not indicate particularly high levels of cholesterol or inflammatory proteins, both of which are associated with heart disease. Diastolic blood pressure, which measures the pressure of the artery walls when the heart relaxes between heartbeats, was higher than normal, a condition known as isolated diastolic hypertension, or IDH. This is an independent predictor of serious heart problems.
The authors speculate that loud noise day after day may be as strong an external stressor as sudden strong emotion or physical exertion. How much noise is there in your workplace? Could you employees be at increased risk of heart disease because of the noise in your workplace?
Wen Qi Gan,et al; Exposure to occupational noise and cardiovascular disease in the United States: the National Health and Nutrition Examination Survey 1999-2004, J Occ & Env Med Online 5 October 2010; doi 10.1136/oem.055269
Can’t blame failure on your part suppliers!
A Plant supplier was sued for over $6 million in damages for lack of an effective process to identify that a critical operational part in plant they manufactured matched the specifications required. The court found the supplier of plant, used a "hit or miss" method to determine the specifications of a vital machine part. They also failed in their ACT Supreme Court bid for the manufacturer of the substandard part to pay a share of a $6.25 million injury damages bill.
In October 1997 worker Michael Hay was operating a mobile hoist manufactured by Snorkel Elevating Work Platforms Ltd (Snorkel NZ), supplied and serviced by Snorkel NSW, when the elevating platform collapsed, and he sustained permanent injuries. An investigation found that a part in the platform's support arm, known as a keeper pin, had snapped prior to the platform collapsing, & the worker initiated proceedings against Snorkel.
Snorkel consented to pay the worker more than $6.25 million in damages, & claimed contribution against the keeper pin's manufacturer, Borren Metal Forming Ltd. In 2008 proceedings, the Supreme Court heard the keeper pin was only half the tensile strength that Snorkel had ordered, and found that Borren had breached its contractual obligation to Snorkel in providing the shoddy part.
However, Chief Justice Higgins found that due to another technical problem at the time of the incident the keeper pin had, been subjected to rotational forces that no keeper pins were designed to withstand. It was "impossible" to find that the broken pin caused the accident or that a full-strength pin would not have snapped in similar circumstances.
Snorkel has also failed to establish that an under- strength pin would have snapped had the mobile hoist been functioning properly. Snorkel seemed to have used only 'hit or miss' experimentation to fix on the specifications for the keeper pins said the Chief Justice in dismissing the company's claim.
Snorkel appealed & before Judges Gray, Refshauge and Cowdroy, Snorkel contended that Chief Justice Higgins neglected to "analyse and review" the expert evidence, and provided inadequate reasons for his decision. The bench found that while the under- strength pin might have caused the accident, this "cannot detract from the fundamental fact that the keeper pin was never meant to bear any load of the type to which it was subjected". In the absence of evidence to the contrary, "unexpected, abnormal and unquantified forces... were the only cause of the accident, and not the under-strength keeper pin", Judges Gray, Refshauge and Cowdroy said. "Borren's negligence did not materially contribute to the loss or damage suffered by Mr Hay. The breakage of the keeper pin was not the natural consequence of Borren's breach of contract. Borren would have been entitled to expect that it was supplying a keeper pin to a machine that operated correctly."
SNORKEL ELEVATING WORK PLATFORMS PTY LIMITED & ANOR v BORREN METAL FORMING LIMITED [2010] ACTCA 23
Do annual health & safety performance bonuses drive the right behaviour?
A paper has just been released by Andrew Hopkins which poses some interesting challenges to the concept of rewarding good health & safety management especially when that is based on lag indicators & short term objectives. Many organisations currently have senior management bonuses tied up in profit maximisation, lost time injuries and fatalities where perhaps (as has been learnt in the financial crisis with the finance industry) we would be better looking for longer term strategies to allow a better focus on low probability high risk as opposed to high probability low risk factors. Too many of the targets are focused on short term rather than sustainable long term results.
Many major safety accidents can be traced back to cost cutting measures designed to maximise profits such as seen with strategies to defer maintenance, unwillingness to invest in new and safer equipment, cutbacks in training, & staffing cutbacks that leave front line workers with inadequate supervision. There are important similarities between the finance industry & industries that deal with major health, safety & environmental hazards. Remuneration systems that operate in both types of industry encourage a focus on short term advantage and a disregard of the longer term and more catastrophic risks. The Global Financial Crisis has spawned a number of suggestions aimed at encouraging people at all levels in the finance industry to pay greater attention to catastrophic risk.
These suggestions all involve deferring remuneration, in particular bonus pay and share options, for a period of up to seven years, to ensure that decision makers focus on the longer term corporate interest. These ideas have direct relevance for the management of catastrophic HSE risk. First, the deferred share option schemes now being proposed for the finance sector could be applied with little or no modification to industries that run catastrophic HSE risks. Second, cleverly designed deferred bonus schemes would be an excellent way of mobilising employees at many levels to pay greater attention to catastrophic HSE risk. How would such arrangements work at your organisation- would senior management be committed to such an approach?
Don’t rely on experience to determine risk! Employers are obliged to think beyond past experience when assessing workplace safety risks. In this case, a Toorak Winery Pty Ltd cellar hand was transferring liquid & skins from an overhead fermentation tank to a mobile bin in March 2008, when a substantial amount of juice rapidly discharged & caused the bin to move, fatally crushing him against a stationary platform. WorkCover issued a safety alert following the incident, and the employer was charged with & pleaded guilty to failing to:
- conduct an adequate risk assessment of the draining process;
- ensure the bin was restricted from unintended movement through the use of chocks or brakes;
- ensure, in the alternative, that the gap between the bin & the platform was large enough to eliminate the risk of crushing injuries; and
- provide employees with adequate training on the use of the bin and the location of all pinch points.
In the Industrial Court before Justice Haylen, the employer accepted the serious nature of the breach, but argued that the risk had not been "clearly" foreseeable because the heavy bin "had not been found to move" in "many years" of operation. Justice Haylen agreed that in "that context" the risk would have appeared unlikely, but added that a "properly conducted risk assessment that paid attention to the relevant standards dealing with the safety of machinery & the safe distances and safety gaps required" would have identified "the possibility that the moveable bin might move". Justice Haylen reminded the employer that the existence of a risk is not established simply by an experience of an event where a particular risk arose. He employer was fined $125 000. Does your organisation only recognise risks that have resulted in previous incidents at your workplace? Would you know if certain risk factors have contributed to fatality risks in your industry or other industries?
Inspector Yates v Toorak Winery Pty Ltd [2010] NSWIRComm 136 (1 October 2010)
Why would anyone remove guards?
The answer to that can often be explained by competing priorities- the old production versus safety and the employer has a responsibility to ensure that guards are not being removed to achieve production targets. A NSW employer that allowed the removal of guarding has been convicted and fined over a worker's death. In February 2008 the Hunter Readymixed Concrete Pty Ltd truck driver was killed while cleaning his truck's concrete agitator. An investigation found he had climbed into the back of the truck where his head became caught between the agitator fin and the side of the hopper. The employer was charged with and pleaded guilty to a breach of the NSW OHS Act. In the Industrial Court, Justice Marks heard that all of the employer's trucks had been fitted with barrel guard when purchased but that the guards had been removed because they restricted driver vision and made cleaning more difficult.
Justice Marks also heard that while the employer's system of work did not require workers to climb trucks when cleaning, it "did not specifically require the maintenance of safe working distances". Also, the system of work wasn't documented and was inadequately enforced, & the worker inadequately trained. The employer was fined $85000. Would you know if your employees did the wrong thing on safety critical tasks if they were trying to achieve production targets? What is driving your line managers’ approach to safety and what are they monitoring?
Inspector Robins v Hunter Readymixed Concrete Pty Ltd [2010] NSWIRComm 138 (7 October 2010)
How far employees may go to allow the wheels of industry to continue!
This is clearly seen in this case where an employee opted to break a safety requirement which he was ultimately dismissed for. The seriousness of a safety breach is not lessened by the remoteness of a risk, Fair Work Australia has ruled, in finding a worker's breach of an isolation procedure justified dismissal.
In February 2010, a long-serving Coal & Allied Mining Services Pty Ltd worker was unable to turn on a water pump because contractors had failed to remove their safety isolation locks. The worker, who had seen the contractor’s complete repairs on the pump earlier that day, pried the locks open and turned on the pump. The contractors later reported the breach &, following an investigation, the worker's employment was terminated. He lodged an unfair dismissal claim.
Before Commissioner Macdonald, the employer said the worker deliberately breached a "critical" safety procedure, putting others at risk of injury or death. According to its isolation procedure, personal locks could "never be removed other than by their owner" unless, in exceptional cases, the general manager consented. When the worker turned on the machine, which pumped about 180 litres of water/sec, he could not be sure there was no safety risk. The worker said he was certain the contractors had finished their task and, because he had driven along the pipeline moments before switching on the pump, knew no one else was working on it. The employer however said that in the time it took him to drive 500 m from one end of the pipe to the other and access the switch, someone could have commenced work. The remoteness of the possibility had no bearing on the seriousness of the breach. Commissioner Macdonald agreed. A "conscious" breach in an environment where "assumptions about risk likelihood" were unacceptable warranted dismissal, he said. Do your employees make such assumptions? Would you know?
Mr Lindsay Douglas Lawrence v Coal & Allied Mining Services Pty Ltd T/A Mt Thorley Operations/Warkworth [2010] FWA 6750
Industry “accepted practices” are not always safe!
In September 2002, the plaintiff, a farm hand, sustained severe injury to her face & moderate brain damage after she was kicked by a mare while in the process of removing its afterbirth. She underwent numerous repair surgeries; however, she continued to experience facial/head pain & has been unable to engage in any form of employment since. The plaintiff sought damages against the owner of the stable for negligence in failing to provide assistance & adequate safety measures when dealing with a mare that had just foaled. The plaintiff relied upon expert evidence from a horse behaviour specialist in that the presence of a second person restraining the horse acted as an additional safety mechanism by calming the animal & turning its head thus limiting its ability to kick with its hind legs. The defendant denied negligence contending that currently & in 2002, the industry standard was for removal of afterbirth to be undertaken by a sole person without assistance from another. The plaintiff countered that industry standard is not determinative of the appropriate standard of care to be adopted.
In determining whether the defendant’s response was reasonable the judge held that a balance needed to exist between the likelihood & magnitude of an injury occurring against the expense & practicality of alleviating the risk. While the defendant conceded that, due to their unpredictable temperament, working with horses, in particular those that had just given birth carried an ongoing risk of injury, the relevant question is whether the defendant’s response was reasonable in all the circumstances. The judge noted that adherence to industry practice did not absolve employers from negligence & with duty of care directly proportional to risk. That duty was not determined by the prevailing practices by the relevant profession’s body of opinion, rather by what is reasonable subject to the community standards at the time. Accepting that any task involving working behind a mare that had just foaled was inherently dangerous, the judge concluded that industry practice alone should not be the sole consideration in determining a breach of duty.
The problem with the industry practice is that the risk of serious or fatal injury is ever present when working behind a mare that had just foaled & is in a stressed situation. Safe practice must also give proper consideration to employee safety, particularly where the risk of injury is real & serious. Just because a task has been carried out for decades (or perhaps centuries) in a certain way does not, as this case demonstrates, mean that this is an adequate response to the risk of significant injury. The judge concluded that the defendant’s failed to implement adequate safety measure when dealing with livestock & had breached their statutory duty so the plaintiff was awarded plaintiff $250 000 in damages.
Short term exposure risk to welding fumes.
Researchers measuring the biological effects of welding have found even short-term exposure to fumes can cause a significant decline in lung function. Their study analysed three types of welding: MAW-a, MAG¬a, & MAW-u. Healthy male welders applied each of the three techniques for 3 hours, in a booth with a fume exhaustion system, at 1 week intervals. The researchers examined changes in lung function, "inflammatory markers" in blood & exhaled breath condensate (EBC) after each shift & again after 6 & 24 hours.
All 3 techniques led to a significant increase in chromium & nickel in blood & urine, & nitrate in EBC, but it was the lung function results that were most alarming. Researchers found that even a short-term exposure with welding fumes led to a statistically significant & patho-physiological change in lung function previously thought to be possible only with long term chronic exposure. Measures of lung function were impaired after welding, with the MAW-a technique causing the most "prominent decline" in lung function. These findings indicate that short term welding is able to produce a slight though transient airway constriction, mainly in the small more peripheral airways. Is your workforce affected by exposure to welding fumes? How would you know?
Brand, P et al: Internal Exposure, Effect Monitoring, and Lung Function in Welders After Acute Short-Term Exposure to Welding Fumes From Different Welding Processes., J Occ Env Med, 52(9) 2010.
What human factors contributed to this death?
Walkers Snack Foods Ltd & chemical distributor Omnichem Ltd have been fined after a worker was killed by a cloud of toxic gas. John Marriott, was working for Omnichem when he was seriously affected by chlorine dioxide fumes. The UK’s HSE told Court that Mr Marriott was driving a truck containing 4 steel tanks, 2 with sodium chlorite & 2 containing hydrochloric acid, to a Walkers' site. Mr Marriott inadvertently mixed up the hoses on the tanks while transferring the 2 chemicals from the truck, causing them to produce chlorine dioxide fumes. When he realised his error, Mr Marriott stopped the transfer & started to hose the area down, but he’d already started to be affected by the toxic gas.
Mr Marriott & a Walkers employee, who tried to help, were both taken to Leicester Royal Infirmary. The Walkers employee was in hospital for 30 hours, with breathing difficulties, but later recovered. Mr Marriott's condition gradually deteriorated, & he died from the gas effects a month later. Walkers Snack Foods Ltd & Omnichem Ltd pleaded guilty to criminal safety breaches & were fined £200,000 & £150,000 respectively. It took an hour after the gas cloud’s appearance for Walkers to respond & to get employees out of the area. Walkers had no planned site evacuation procedure for a chemical emergency with insufficient written procedures for deliveries & receipt of chemicals, plus tanks were also inadequately labelled tanks- what human factors caused these failures?
Written by Julie Armour