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A tree fell in an early childhood centre and everyone heard it

hand n hand trustOpinion article
Dr Sarah Alexander

A tree fell on children in an early childhood centre and for the first time ever Worksafe prosecuted an ECE service.

The service concerned, Discoveries Educare Ltd, will therefore be remembered in the history of early childhood education in NZ as being the first to be convicted under the Health and Safety Act. Just the month before the incident occurred Discoveries Educare had taken home the award for Best Emerging Business in the Westpac Auckland Business Awards 2016 – South.

No child died, four were injured and one adult, but this raises the question as to why a prosecution in this instance and not for other very serious events, such as: 

  • the child who suffered strangulation and death from stilts held together with a cord on a plastic slide;
  • the child who suffered permanent brain injury and is now unable to move any part of his body after being giving food of high-risk for choking to eat and having first aid administered that was not safe treatment for choking;
  • the child who suffered severe burns to his back from tap water that the service provider had not ensured was set at the correct temperature and who was left to suffer without medical help and parents were not informed, and
  • inadequate supervision and support of home-based educators who seriously abused and permanently injured a child (see for example the 2019 and 2017 PORSE cases).

Perhaps it is because the failure here was one involving the environment of the early childcare centre (a tree) rather than the behaviour of those operating within it.  Perhaps it is because in this case an adult was hurt too.

It has taken almost 3 years for the case to go through the courts. A hearing was scheduled in the Auckland District Court on 30 May 2019.  The case was not decided until August 23, 2019.

The charges brought by WorkSafe under the Health and Safety at Work Act 2015 were:

Defendant

Act Offence Section

Act Penalty Section

Discoveries Educare Limited – business owners Rippan Sandhu and Ajit Singh
Failed to ensure so far as was reasonably practicable, the health and safety of workers who worked for the PCBU, while they were at work in the business or undertaking, namely supervising children in the rear play area, and that failure exposed them to a risk of serious injury or death, namely crushing by collapsing tree.
Being a PCBU, failed to ensure so far as was reasonably practicable, the health and safety of other persons, was not put at risk from work carried out as part of the conduct of the business or undertaking, and that failure exposed them to a risk of serious injury or death, namely crushing by collapsing a tree.
S 48(2)(c) carries a maximum penalty of $1,500,000.

36(1)(a)
36(2)

48(1)
and
(2)(c)

Heng Tong Investment Ltd – property owner/ director Fang Feng
Failed to ensure so far as was reasonably practicable, that the health and safety of other persons, was not put at risk from work carried out as part of the conduct of the business or undertaking, namely property leasing and management of the property, and that failure exposed them to a risk of serious injury or death, namely crushing by collapsing tree.

36(2)

48(1)
and
(2)(c)


Both parties were found guilty on all charges and sentenced. Discoveries Educare Ltd was fined $172,000 and ordered to pay reparation of $46,200 ($3,500 of which had already been paid), as well as $3,490 in consequential loss. Heng Tong Investment Ltd, was fined $89,200 and ordered to pay reparation of $27,800 as well as $2,326 in consequential loss.

The tree had been dead for more than a year and Worksafe found that appropriate steps had not been taken to address this risk.

One might have thought that with the shock of the injuries plus that the case was going through the courts, that the service provider would have radically changed its way and improved things immensely.

However, while Discoveries Educare in Gillies Ave Newmarket has had its licence downgraded from a full licence to a provisional license by the Ministry of Education in 2016, 2017 and again in 2018, Discoveries Educare Ltd has been held up as a model service by the early childhood business council (ECC) for its health and safety management. Discoveries Educare was invited as a member to join CEO Peter Reynolds in presenting a workshop on this at the ECC's May 2018 conference. 

Twelve of the 13 other Discoveries Educare centres across Auckland were placed on provisional licences in December 2017 with a time frame for improvements to be made extended from 24 February 2019 to 17 May 2018.  The 12 centres were then reissued full licences only to be found to have new instances of non-compliance later in 2018.

In June 2019 a parent complaint forwarded to the Ministry of Education concerning one of the Discoveries Educare centres received the following reply:

“Thank you for your email. The MOE have been working with this Service for the last three months. We have been reviewing policies and procedures and looking at their staffing concerns.”

Take-home messages

  • Daily check for potential hazards and risks (find a comprehensive ECE hazard identification and safety checklist here).
  • As a service provider, if you are not sure if something presents a risk – seek expert advice. For trees, contact a qualified arborist.
  • As a teacher, parent or member of the public, if you are not sure if something presents a risk to children and/or adults at the service – tell the manager or service provider and keep a record of the date and concerns you expressed.
  • It is very important for services to assess all risks their operation poses to staff, children and other people who may enter the premises.
  • Appropriate controls must be put in place to mitigate those risks. If you don’t have the in-house expertise then this expertise should be sought and used.
  • Business Awards provide no indication of the safety or quality of an early childhood service. Business and child-wellbeing in the service sector and particularly in the case of early childcare do not go well together.
  • Even in cases such as this one, the Ministry of Education is not likely to suspend the service’s licence to operate or to close it. The Ministry of Education is unable to ensure the safety of children in services.
  • Environmental hazards can be easier for a person to spot (and therefore in the case of the rotten tree, more likely to proceed to prosecution) than those that are due to the behaviour or decisions/ policies of those operating in the service.
  • The most fundamental practice change to be made is that every day the service provider and all adults responsible need to assume that something could go wrong – instead of a ‘she’ll be right’ attitude. (Learn more)

Related resources and articles

Supervision of children in ECE: A guide with tips for service providers, teachers and carers

ECE daily hazard checklist: An ECE service resource to assist with compliance

Baby-proof your home - a guide for parents, caregivers and educators

Death and injury in ECE – let’s get it out in the open

Inadequate checking of early childhood standards may lead to disaster

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