Personal Injury – Employers’ Duties

Occupational Health and Safety

An employer owes duties to employees under Common Law and statute. The common law duties have been developed by the courts as they decide cases on accidents at work.
The employer’s Common Law duties are:
a) To provide a safe place of work
b) To provide proper tools and equipment
c) To provide a safe system of working
d) To provide competent staff

In addition an employer owes duties under statute to safeguard employees in the workplace.
Under the Safety, Health and Welfare at Work Act 2005, (“SHWWA”) (Section 8)) the employer’s duty is to ensure the safety of employees and in particular;

a) to provide by management and action, safety at work;
b) to provide by management and action that improper conduct does not occur;
c) to provide a safe place of work;
d) to provide safe plant or equipment;
e) to provide safe a safe system of work;
f) to provide safety information, instruction, training and supervision to employees;
g) to make a risk assessment and to implement measures to protect workers from those risks;
h) to provide protective clothing or equipment where hazards can not be completely eliminated;
i) to make emergency plans; and revise them as required;
j) a guard against hazards of particular articles or substances;
k) to provide welfare facilities and maintain them;
l) to provide a competent person to ensure safety and health at work of his employees.

Assessment of risk is the subject of academic study. It has the appearance of common sense but is far removed from that. For the purposes of SHWWA 2005, it involves four aspects.

• The risk must be identified in the first place.

• Secondly, it must be than assessed or quantified as a statistical possibility. In other words the likelihood of the perceived possibility must be measured.

• Thirdly, the measure of damage potentially arising must be identified.

• Fourthly, the practicability of avoiding the risk must be assessed.

This last matter is a question firstly, of physical possibility and secondly, cost. There is no certainty that each of these aspects can be perfectly ascertained. This is the norm In risk assessment
The standard of knowledge demanded of an employer in discovering the hazards in the workplace is that of the best available information. If the information becomes available, the employer is expected to promptly become aware of it. Such information is likely to first become available in countries other than Ireland. Employers must monitor the field of occupational safety and health on a global basis. Most occupational hazards in Ireland will, already, be well known as such.
Having recognized the hazard or risk, the employer must calculate the probability of its occurrence. This assessment is normally based upon inadequate evidence from a purely scientific point of view. This is not a real handicap or valid criticism. “Scientific” standards are not the norm in practical affairs and risk assessment is a practical matter. In addition, if scientific research is available to assist, it is very valuable, but it need not be conclusive. Usually, the assessment is based upon information arising from previous accidents, insight and skill in engineering or other technology, and/or information arising from experiments on animals with subsequent extrapolation to humans.
This mix is unlikely to be sufficient to produce a perfectly scientific statistical assessment of risk. So what? In practice decisions cannot be postponed. Only the available information can be used and, therefore, it must be used.
It may become more obvious in some circumstances than in others that risk assessment involves some ordering of values or priorities. Even continuing the status quo is a decision based on a value judgement. Cost effectiveness is a frequent determinant on such occasions. The value which society places on human health or life is another, even if no reference is made to it overtly.
If the full extent of the potential for damage amounts to something no worse, to speak in terms of farce, than the scuffing of the patent shoes of the sales manager, then the risk to be guarded against is negligible. This judgement remains valid even if the statistical probability shows that there is a risk of the damage occurring every six months. If, however, the full extent of the potential damage amounts to the loss of a limb of a worker or the death of a worker the risk to be guarded against is very large. This will apply even if the measured probability of the occurrence is as remote as once every 50 years.
What if the probability is very remote and the foreseeable damage is catastrophic? The final arbiter will be cost. This is not a reference to the capacity of the employer to pay for the avoidance of the hazard. That issue is irrelevant. It is a social judgement on the value of the money spent on avoiding the risk. If the amount of money required to be spent is large compared to the remoteness of the risk and the potential for damage, the risk need not be guarded against. Following the Alpha Piper oil-rig disaster in the North Sea, the U.K. Government set up a committee of inquiry into the event. Following the delivery of the report of Lord Cullen, the UK Department of Energy stated that mathematical standards of acceptable and non-acceptable risks would be introduced throughout the industry for the first time. The report itself went on to criticise Occidental Oil, the owners of the oil-rig, and the Department of Energy. It recommended that all offshore installations adopt a formal safety assessment system “involving the identification and assessment of hazards over the whole life cycle of a project……. The techniques used include hazard and operability studies; quantitative risk assessment; fault free analysis; human factors analysis; and safety audits”.
The sum considered proper to be spent to guard against a catastrophe is substantial, probably irrespective of the remoteness of the risk.
What does this mean in every day terms? It might require the closing down of a factory. This might happen because the risk cannot be guarded against, or the employer cannot, or will not, spend the money required to install the protection. There are mechanisms in the SHWWA 2005 for imposing this judgement on an employer. However, the decision may remain with the employer. There are hard reasons why the employer will not close down where the circumstances call for it.
There are in place standards for the assessment of value of loss or damage. Under the Civil Liability Act, the basis for compensating dependents and close relations of a deceased person have been in use for many years. The principle of compensation is approached from two directions. The Act sets out the sums of money to be paid for the pain and grief on the loss of the deceased. It varies with the relationship. Beyond that, the compensation is calculated on the basis of the financial loss suffered by the dependent on the death of the deceased.
There are serious drawbacks with this approach. It means that all lives are not of equal value. In addition, it hardly reflects the views of the deceased person. Put another way, the prospect of death from a known and avoidable risk is not readily faced by most people in circumstances where it is not guarded against for reasons of cost benefit.
Cost benefit has been shown to produce strange results. Dr. John Adams of the Department of Geography at University College London has suggested, on the basis of the Roskill Inquiry report (on the third London airport), that the net benefit to the economy, given the cost benefit value of a female human life, lay in having an aircraft crash on a woman.
Cost benefit analysis is of greater familiarity to managers than risk assessment. The opinion of where a cost benefit lies varies with the industry or business. It also varies with the society. It is a fact that the levels of compensation for personal injury in Britain are low. In the United States they may be too high. Given such variation, cost benefit analysis cannot be said to be straightforward and generally acceptable. For a manager making a decision to spend money, or not to spend money, such matters may not appear relevant. He will feel, having ascertained the statistical probability of an event, that a particular risk is acceptable. He will know nothing of the survey methods of the study that produced the probability figure. It may have included people who are not and never were at risk. They were not in the “danger zone”. Their presence in the survey makes a risk appear more remote than it really is, for the people who really matter, the people who are actually exposed.
There is another view to be taken: there is a social cost to a death or injury as much as an industry cost. The Environmental Risk Assessment Unit of the University of East Anglia identified a United Kingdom social cost of a life at about £266,000. This included £135,000 for lost output; £128,000 for pain and suffering; £1,300 police and medical costs; £1,750 damage to property.
This is higher than the amount the Nuclear Industry in Britain is prepared to spend on saving a life, if the person whose life is in issue is an employee. For an employee it will spend £500,000: for a member of the public it will not spend more than £200,000. The difference is based upon the perceived differences of exposure to risk.

Accident Avoidance

Remember this? –

“For want of a nail the shoe was lost;
For want of a shoe the horse was lost;
For want of a horse the rider was lost;
For want of a rider the battle was lost;
For want of a battle the crown was lost;
For want of a crown the kingdom was lost.”

It’s an example of accident analysis. It also says that if we want to achieve great things we must pay attention to the small details. It is not an extreme parable. The author was personally involved in a case involving the absence of a jubilee clip.
A jubilee clip is a small band of metal bent in a circle, just like the belt of a trousers, and joined end to end in an overlap. At the overlap it is threaded and a screw is attached to it, sticking out in the same plane as the band. When the screw is tightened the circumference of the band decreases and tightly grips whatever is within the band. It is frequently used to hold rubber hoses onto metal nipples. In the case referred to, as a result of a lack of jubilee clips in the stores of the workplace, a worker suffered spectacular injury due to ingestion of toxic material.
Successful accident avoidance is based on experience and effort. Experience may be gained by reading and by carefully looking for the causes of accidents in order to avoid repeats. Benjamin Franklin remarked: –

“A wise man learns from the mistakes of others,
A fool learns from his own mistakes”

A report should be written on every accident. The report should be written by someone who was unconnected with the accident and who understands the procedures to be followed for a proper analysis. Every witness should be individually interviewed to ascertain the conditions existing at and prior to the accident. The inspection of the scene of the accident should take place as soon as possible.
The data collected should answer the following questions; Who?, What?, Where? and When? Only then can the fundamental question be addressed – How?
Before the answer is given to this the factors leading to the accident should be marshaled and a causal tree drawn up. This is a diagram illustrating the factors anterior to the accident and their respective causes and the relationship between them all.
An employer should approach the task of devising a safe place of work and a safe system of work from the point of view of some one creating an effective military group. A manual of “General Regulations” will be required. Equipment will have to be assessed for any and all circumstances of its use.
Safety is normally seen as breached when an accident happens. The occasion of a breach of hygiene is rarely observed. An employer must consider both and rank them of equal importance. Workers must be informed of the possible consequences of a breach of hygiene. They must be advised of the reasons why they should immediately discard overalls splashed with a toxic substance and, if necessary, wash themselves. The use of good quality posters or signs should be considered to assist in training and instructing the workers in this regard. Signs are indispensable as warnings. Restricted areas will often be required, whether because of noise, fragile roof or some other reason. Restrictions are useless if the proper signs are not to hand to warn approaching workers of the danger. Some tasks may need written permits before a worker is allowed to undertake them. The advantage of a system like this is that the training and instruction of the worker will presumably be assured before he engages in the task. In addition, the formality will assist communication of the commencement of the task to management so that other activities will not be undertaken which might endanger the worker in a vulnerable position.
The continued competence of a worker should not be assumed. If he or she has suffered illness or injury or is on medication this should be taken into account in deciding whether they should do a particular task or continue at their ordinary work. Not all workers will understand a particular instruction equally well and some will require personal communication of warnings and instructions.
Workers should be asked to report any defects seen by them in machinery or equipment. This instruction must be supported by a system of repair of any defect reported or replacement of the machine or equipment. There should be a regular review of the entire workplace, keeping in mind especially any new element which might have been introduced since the last review, such as a new worker, material, substance or machine. Intangibles such as time or placing of objects may be just as important or relevant.
A safe system of work should start with the question of control and responsibility. One person should have sole authority and responsibility for any particular job. The method of doing the job should be considered every time it is undertaken. If there is an established safe way of doing the job it should be adopted and continued until a better method becomes known. This will require a literature search for relevant material such as Codes of Practice etc. The literature will require monitoring for changes and development. A safe method, once ascertained will require that the workforce is informed of the details of the method and instructed to follow the required procedures to implement that method. If protective clothing or equipment is required its use and limitations must also be communicated to the workers. The suitability or fitness of the machines for the task, no more than the workers, cannot be assumed; it must be assessed. In the event of a mistake on the part of the employer in making these judgements and decisions, what will be the consequences? Will the safe system of work be swept away? The employer must anticipate error and devise back-up procedures and systems. Mistakes can easily arise due to delay in completion of a task requiring that it be left to be completed later, contrary to expectations. The employer must make arrangements so that it can be so left and safely finished at another time.
The employer is obliged to prepare a Safety Statement showing the assessment of the risks of the employment and the steps taken to prevent accidents.
Under the SHWWA 2005 management must assess the workplace for hazards. Evidence that that assessment was made may need to be produced in a court at some stage. If a safety statement is honestly completed it will be corroborative evidence that the management addressed it’s mind to the problem. It will be ignorant no longer. However, it must then act, and act competently.