Wednesday, April 24, 2024

Jurisdiction puzzle as Irish worker seeks $6m

Neal Wallace
NZ contractor not to blame, says WorkSafeNZ, but Irish court differs.
The Environment Court ruled in favour of Te Anau Downs Station last October after the SDC took the matter to court in April 2022 citing unlawful vegetation clearances on the property.
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The awarding of €3.4 million (about $5.9m) in damages to an Irish machinery operator who lost an arm while working for a Southland contractor could raise questions about New Zealand’s legal jurisdiction if the order is enforced here.

The ruling from the High Court in Ireland followed a hearing initiated by Padraig Lowry, who was injured in the 2015 accident.

The Irish Times reports that his lawyer now intends seeking to have the order enforced in NZ.

Daryl Thompson, the Southland contractor who employed Lowry, said he did not defend the case as the employment contract was signed in NZ so NZ law applied, and the incident had been investigated by WorkSafe NZ, which found he was not at fault.

Rural Contractors NZ chief executive Andrew Olsen said if the court ruling is enforced in NZ, it raises significant questions about the jurisdiction of WorkSafe NZ and the Accident Compensation Corporation system.

“There seem to be two different interpretations of the same set of facts by two different jurisdictions.

“We’ll stick to the findings from NZ and we’ll support our member.”

The Irish Times reports Lowry lost the lower part of his right arm when it was caught clearing a blockage in the chute of a combine harvester in January 2015 while working for D Thompson Contracting.

Thompson is examining the judgment and its implications, but said he has no idea what it means given an investigation by WorkSafe NZ found no evidence his company was at fault. 

“The inquiry concluded Padraig received an induction on the general health and safety policy, hazard register, safety procedures and a copy of the operators’ manual for the harvester.

“It also found Padraig failed to follow the operator’s manual or our health and safety policy. 

“The investigation stated Padraig accepted responsibility for reaching into the chopper of the harvester when he was aware that it was still winding down, and that he did not wish any action to be taken against the company as he believed that he was trained and competent in the operation of the harvester and was aware of the company policy and procedures. 

“The investigation was also clear that it was difficult to identify any additional practicable steps that we could have taken to avoid this accident,” Thompson said.

He acknowledges the impact on Lowry and his family.

“This was a tragic accident and we recognise the life-changing impact this had had on Padraig Lowry. Our thoughts are with him and his family.”

Asked if he could be liable for the fine should he enter the European Union, Thompson thought it unlikely.

Farmers Weekly approached Lowry’s lawyer for comment and clarification about why the case was taken, the contradictory findings and the implications, but received no response. 

Olsen said between 400 and 500 experienced seasonal machinery operators come to NZ to work each year and he does not expect the case to deter people from coming here.

“We anticipate workers will continue to come to NZ next year and beyond and have petitioned the immigration minister to remove more red tape from the Accredited Employer Worker Visa to allow easier entry access for highly skilled drivers.”

Olsen said the association has been in touch with sister organisations in Europe to provide balancing arguments in the case.

Unrelated to the Irish case, Olsen said the association has approached WorkSafe NZ to see how members can interact more with officials to address the 10 biggest health and safety issues they face.

The idea is to find simple-to-manage solutions that small to medium businesses, which most of the organisation’s members are, can adopt.

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