Safety Health and Environment - Case Study Example

Safety Health and Environment Name: Course: College: Tutor: Date: Introduction The law of torts is very applicable in the industry today. A good number of cases in court today touches on the various torts which falls under the civil law while others especially with issues to do with negligence while others have to do with criminal law. The case presents a reverse of criminal wrongs which are civil wrongs (Dimock2012, p. 750). The law of torts defines the various actions which constitute torts and the various alternative remedies. Both criminal laws and civil laws provide a clear guideline on the various laws and the consequences of contravening such laws. In analyzing the case study, we will give much focus to the way in which the managing and organization of the bread factory’s activities were conducted and whether the standard of care taken was adequate under such situations. For a successful prosecution that may lead to partial of full compensation, it must be proved that a substantial part of the failing must have resulted from an error made at a senior management level(Thomas 2007, p. 260). Additionally, the manner in which the organization or management of the activities were conducted must have been far below the reasonably accepted standards which thus resulted in the individuals death. Among the assumptions we will make are that the tragedy occurred during the course of employment and that the act was not a deliberate criminal act. Aspects of the criminal law breached The case study on the baked alive in bread factory horror presents a case that presents a clear and precise manifestation of the law of torts. Tort can be referred to be a civil wrong other than breach of contract giving rise to an action at common law for liquidated damages or the other relief (Joycelyn 2009, p. 64). Negligence refers to an omission to do something which somebody who is considered as reasonable and guided upon by those regulations which ordinarily regulate the conduct of human affairs would do or doing something which a reasonable and prudent man would not have done. It is concerned with the rights and duties of parties which may individuals or corporations. Section 2(1) provides that it shall be the duty of every employer to ensure that as far as it is reasonably practicable, the health, safety and welfare at work of his employees is ensured. Section 2(2) (a) provides that the employers should provide and maintain plant and systems of work that are so far reasonably practicable, safe and without any risk to health(Simon 2009, p. 474). The management failed to take into consideration the standard recommendations which were that the machine was to cool for 12 hours before any maintenance activities should be carried out (Joycelyn 2009, p. 64). Part c of the same section and section 2 (2) (e) provides that it is the responsibility of the employer to provide and maintain a working environment for the employees that is reasonably practical, without risks, safe and adequate as regards facilities and arrangements for their welfare at work. Additionally, the employer should provide such information like instruction, training and supervision that is necessary so as to ensure so far as it is considered reasonably practicable the health and safety at work of employees. The fact that the employees, David Mayes and Ian Erickson crawled into the oven unaware of the full dangers is a failing on the part of the administration by not providing such vital information (Henrik & Caspar 2004, p. 474). Provisions of section 7. The section provides that the general duties of the employees have been extended by the management of health and safety work regulations 1999 regulation 14 which requires that an employee should carry out any work designated as per the training or instructions and inform the employer of any health and safety problems. It has been proved that the tragedy is attributed to the bakery placing more emphasis on production and revenue generation as opposed to safety. Despite the management having the manufacturer’s knowledge on the clear instructions, and procedures to conduct such maintenance procedures. Section 37 of the act on offences by bodies corporate provides that senior managers and directors of a company and also the company itself should be individually held responsible for breaches of the law. The prosecution can hold proceedings against the board of directors, individual functional directors and senior managers. The managers despite being directed by the manufacturers that the job takes four people twelve hours, they disregarded this and allowed only two people. Additionally, the managers disregarded the standard procedures and instead directed they use the entrance instead of removing the side panels. Consequently, failure to set a permit to work system and admission that the work should have not been carried under such temperatures is a clear indication of negligence on the part of the managers and they should thus be held responsible (Henrik & Caspar 2004, p. 474). Within the law of manslaughter, the case can be considered as involuntary manslaughter by gross negligence. The herald of free enterprise provides that where an individual who is an embodiment of a corporation and has proved that the act was for the purpose of the corporation, then both the individual and the corporation may be found guilty of manslaughter. The prosecution has to identify beyond any reasonable doubt that the individual on question is sufficiently important in the corporate structure of the organization and is therefore deemed to be representing the directing or controlling the will and mind of the company. Identification of such an individual may lead to both the individual and company being held criminally liable for manslaughter. It should be established who the directing mind of the company is with respect to safety.The corporate manslaughter and corporate homicide act 2007 provides that the liability of the organization to be assessed on a wider basis thereby providing a more effective means of accountability on serious failings across the organization(Henrik& Caspar 2004, p. 474). The seventh regulation of the health and safety assistance provides that for an individual to be considered as competent, he must possess sufficient training and experience and the relevant knowledge and qualities that are measurable to the task at hand. The regulations on procedures for serious and eminent danger and for danger areas provide that it is the responsibility of the employer to establish the various procedures that are dangerous and should therefore plan the course of action required in advance. It also provides for nomination of a sufficient number of persons able to implement such procedures. The fact that the men are not considered as fully qualified and being provided with a thin suit, hat, gloves, and elbow and kneepads as a last thought also raises concerns about safety policies at the bakery under those particular circumstances. The regulations on information for employees gives more focus on the need for every employer to provide to his employees relevant and comprehensive information (Darrell2013, p. 82). These include the risks to their health and the protective and preventive measures for such, alternative evacuation procedure and of most importance the risks. Options to pursue civil action Civil law provides that if anyone is wronged by another individual or like in this matter organization, then he or she has a right to seek for compensation from the person or individual causing the wrong. This is enshrined in the law of torts and the case will be determined using the law of torts. On the other hand, any injuries or disabilities caused to an employee or in case of death, the law provides that the dependents file for compensation through the necessary civil system pursuant to the tort of negligence or through the tort of breach of statutory duty (Hay2001, p. 1865). The tort of negligence provides that according to the rule of common law, each and every individual owes a duty to everyone else to ensure reasonable care not to cause them foreseeable injury, in other terms referred to as the duty of care. It is, therefore, from the case study, it is clear the bakery owed a duty of care to the dead men. The burden of proof in this case rests with the defendant who should prove beyond any reasonable doubt to the prosecutor the proof of negligence on the respondent (Vincy & Francesco2006, p. 524). For the respondent to be held responsible, the proximity of the two parties must be sufficiently proximate for one to owe duty of care to another. The defendant should additionally prove the duty of care owed to them is breached. The reasonableness of the act should be determined in addition to the determination whether the respondent had reasonably foreseen the foreseeable harm the act of omission would cause. Respondents Defenses to civil claims The respondent has various options of defense at his or her disposal. Among them include when the respondent does not owe a duty of care to the defendant. The respondent tries to prove to the prosecutor there is no proximity between the parties and they do not have the defendant in their contemplation for a duty of care owed. Another option would be a proof of no breach of duty(Darrell2013, p. 66). The employer in this case proves to the prosecution about his denial that he failed to take reasonable care and asserts his belief that he did everything a reasonable employer would have done in the prevailing circumstances and that the effects were reasonably foreseeable. Lastly, the respondent has the burden of proving to the prosecution that the breach did not cause the resulting loss. For the respondent to be held responsible, the prosecution must prove without any reasonable doubt.Section 40 of the criminal act places the burden of proof on the prosecution to establish and present facts that are beyond any reasonable doubt (Darrell 2009, p. 65). It states that it is the accused to prove that it was not practicable or not reasonably practicable to do more than was done under the circumstances to satisfy the duty or requirement. References Dimock, S 2012,Defenses at Criminal LawEncyclopedia of Applied Ethics (Second Edition), pp. 745-753. Thomas, M 2007, Criminal solicitation, entrapment, and the enforcement of lawInternational Review of Law and Economics, Vol. 27, no. 2, pp. 258-268 Joycelyn, M 2009,2 - Principles of Criminal LiabilityCriminal Law (Ninth Edition), pp. 29-65. Simon, W 2009, Criminal responsibility Review ArticlePsychiatry, Vol. 8, no. 12, pp. 473-475 Henrik, L & Caspar, R 2004, On the enforcement of specific performance in Civil Law countriesInternational Review of Law and Economics, Vol. 24, no. 4, pp. 473-487. Darrell, L 2013, 4 - Civil Liability and Federal Law: Section 1983 LitigationCivil Liability in Criminal Justice (Sixth Edition), pp. 67-84. Vincy, F & Francesco, P 2006, Judicial precedents in civil law systems: A dynamic analysisInternational Review of Law and Economics, Vol. 26, no. 4, pp. 519-535. Darrell, L 2009, Chapter 3 - Civil Liability under State and Federal Tort Law Civil Liability in Criminal Justice (Fifth Edition), pp. 35-67. Darrell, L 2013, 3 - Civil Liability under State and Federal Tort LawCivil Liability in Criminal Justice (Sixth Edition), 2013, Pages 37-66 Hay, P 2001, Civil LawInternational Encyclopedia of the Social & Behavioral Sciences, pp. 1865-1869 Read More