Individual duties in terms of Regulations, scope of service, and appointments, enable Labour investigators and courts to determine health and safety liability.
Steam legal consultant Shavanya Subramoney unpacks the liabilities that OHS practitioners face in various legal appointments, and scopes of service.
The two types of liability that a company or an individual could incur, are criminal charges that carry conviction or fines, or civil claims for damages.
Health and safety reps or Sheq reps are excluded from both types of liability, in terms of their duties under the Occupational Health and Safety (OHS) Act.
For legal appointments, the general duties are set out inthe OHS Act. If a Section 8(2)(i) supervisor does not perform his duties in terms of the Act (which is to take reasonable steps to prevent incidents), he or she will be criminally liable should an incident occur.
If a supervisor performs his duties (such as reporting a risk to the Section 16(2) manager), and themanager does nothing about it, the manager would then be liable for an incident, should one occur.
If the Section 16(2) manager performs his duties (such as reporting the matter to the Section 16(1) CEO for resolution), and the S16(1) CEO does nothing about it, the CEO would be liable in turn.
Health and safety professional liability
Legal liability in terms of professional health and safety registration in the construction industry would be similar to liability in terms of legal appointments under the OHS Act.
A general duty under the OHS Act would become a specific duty under the Construction Regulations. Therefore, lines of accountability are easier to define by duties, and the liable people would be easily identifiable.
The Construction Regulations or any Regulations imposing legal appointments or registrations, do not change the consequences of liability.
Anyone who fails to discharge any duties placed on them in terms of an Act or Regulations could be held liable for incidents that occur.
Regarding employees without appointed health and safety duties, every employee has the general duty to report unsafe or unhealthy work practices. Should they fail to report an unsafe practice, they may be held jointly liable should an incident occur.
Fatal incident liabilities
After a fatal incident, persons responsible for health and safety may be held liable depending on their duties, and depending on who the deceased was.
If the deceased was a visitor and did not receive proper induction training, which resulted in the fatality, the person responsible for the health and safety induction training would be held liable.
If there are no health and safety induction procedures, it would be likely that the Section 16(1) CEO would be liable.
If the deceased is an employee, his direct supervisor may be liable. It is important to note that blanket liability rules cannot be applied, and liability in each case depends on the facts. Ultimately, liability depends on whether a person complies with the duties assigned to, or imposed on them.
If a fatal or injury incident occurs on a contractor’s site, and the client or employer can confirm that he has conducted the required safety audits, liability might fall on the construction supervisor. Again, this depends on the circumstances of the fatality.
An employer or client can exclude vicarious liability for a contractor’s work, in terms of Section 37(2) of the OHS Act, and therefore might not be liable for any claim for damages should the negligence of the contractor or his employees result in patrimonial damage to another person.
Regulations specify terms of liability
The legal implications of the Construction Regulations Amendment of 2014 are that everyone becomes responsible for health and safety. Employers remain responsible to ensure that everyone complies with their duties.
External incident investigations by the Department of Labour aim to determine who is responsible for incidents. Employers may not tamper with an investigation.
If registration is expanded to other industries, the lines of liability would be clearer and easier to prove, based on duties imposed on specific people.
Courts seek individual OHS liability
Case law shows us that the courts are taking a stricter interpretation of the OHS Act, and looking at the duties of individuals. It seems that this has been the position for some time, but awareness is spreading, and employers as well as appointees are starting to take health and safety liabilities more seriously.
Employers should have professional indemnity insurance, or personal indemnity insurance, depending on their business, and whether it has juristic personality.
Such insurance is used when a claim for damages has to be paid resulting from any negligence that is detrimental to another person’s health or safety, either by the organisation or an individual in the organisation.
• See an example of a fatal incident internal investigation, that reveals construction employers views on health and safety liability, on Sheqafrica.com
• See an example of UK health and safety prosecution, among the comments on a post about mass construction health and safety registration, on Sheqafrica.com