WorkSafe declined case of teen injured on school trip

The mother of a teenager who received a permanent eye injury on a school trip says she feels there is a failing of culture at WorkSafe.

WorkSafe did not prosecute the case and closed their investigation without telling the family, she said.

Kathy Voyles' son Jack Grunfeld was on a school trip in February 2019 with about sixty boys from St Peter's College in Cambridge when the accident happened.

The students and their teachers were taking part in team building activities at Team Up Event's Rotorua centre, which included using three-person slingshots to fire tennis balls into a bucket.

The elastic bungee cord on the slingshot Grunfeld was using snapped during the activity.

It hit him in the eye and another student who was holding it on the back.

"The bungee hit his pupil and the shock wave damaged the retina of Jack's eye irreparably. His eye filled with blood and he blacked out," Voyles said.

"None of us realised how serious it was at the time."

She said his school teachers were the first responders, while Team Up Events staff offered some ice.

He lost 92 percent of sight in his left eye and had to have the lens removed.

Grunfeld was 15 when it happened.

Voyles said he was told by his eye surgeon headaches would continue and many parts of his life would never be the same.

"He was hit directly in the eye. That's the equivalent, we've discovered from reading research papers in the United States, of a bullet hitting you in the eye," she said.

The accident could have been prevented if the students were wearing eye protection, Voyles said.

"We did a search and found safety glasses cost $4 at their cheapest."

WorkSafe investigation

WorkSafe was notified of the accident and opened a case.

Voyles said three weeks later, the family hadn't heard anything so contacted WorkSafe.

They had to file an Official Information Act (OIA) request to find out what had happened, she said.

"We actually found out through the OIA that WorkSafe had closed the case without telling us and the company [Team Up Events] had blamed Jack for participant error.

"Jack, the victim, had not been interviewed by them, or even contacted at all," Voyles said.

"There was a huge lack of transparency."

WorkSafe also declined to prosecute Team Up Events, so the family took a private health and safety case, represented by Tim Mackenzie and Vincent Harris.

Mackenzie said WorkSafe gave two reasons for not investigating.

First, "WorkSafe needs to be fairly sure that there is evidential sufficiency for any resulting prosecution to prove elements of Heath and Safety at Work Act."

"This is an unusual approach...It is difficult to see how WorkSafe can assess evidence and its sufficiency before first gathering the evidence through an investigation. This approach appears to predetermine that any investigation will not reveal sufficient evidence to commence a prosecution," Mackenzie said.

The second reason was Grunfeld had not met "WorkSafe's investigation criteria and determination of life changing harm", which it said in this situation would be "permanent blindness".

"This appears to be a self-imposed rule. I consider it arbitrary and unfair," Mackenzie said.

"It is also difficult to reconcile with other WorkSafe investigations and (successful) prosecutions which have been brought where there was no injury at all."

It was not the first time WorkSafe declined a case with an injury - or death.

It did not take a case in 2015 when a forestry worker died or investigate the deaths of two labour-hire industry workers in 2019.

"Ultimately a group of school boys were given powerful slingshots without any safety glasses. One snapped and a very serious eye injury occurred. I consider that this case should have been investigated and prosecuted by WorkSafe. That is their role," Mackenzie said.

A WorkSafe spokesperson told RNZ they acknowledged the family's disappointment with their decision not to investigate Jack's injury.

"We maintained contact with the family in the weeks and months following the injury, as further information came to our attention," they said.

"We undertook a thorough review of the file as a result of the additional information, however it did not change our decision not to investigate in this instance."

However, they said WorkSafe's communication with families had "not been as good as it could be in the past."

They said WorkSafe had since introduced new processes to improve contact with victims and whānau.

The spokesperson said it was not possible to assign an inspector to every case, as WorkSpace received 10,000 notifications of injury each year.

"Depending on the questions we ask of each notification, outcomes may include an investigation, a workplace assessment, a duty holder review, or no immediate action."

Private health and safety case

In a reserved decision released this week, Judge Jane Lovell-Smith found Team Up Events guilty of health and safety breaches.

Mackenzie said such an outcome is rare.

"To my knowledge there have been probably less than ten private health and safety prosecutions in New Zealand," he said.

"I would suggest that it shows the system is not working well at times. For a family to take on a private prosecution is a significant and difficult task."

Voyles said "We are relieved [at the outcome] but we did this so no other person would be virtually blinded."

"It's not easy to stand up there," she said.

"It also takes a lot of time out of your life to prepare this sort of case. I just wonder how many others have gone under the wire [and not had a WorkSafe prosecution].

"I will certainly be writing to Michael Wood [Minister for Workplace Relations and Safety] and alerting him to what I think is a failing of WorkSafe culture," she said.

Team Up Events would be sentenced in Manukau District Court later this year.

Jack was now 20 years old and studying a Bachelors of Engineering majoring in Computer Science.