Health and Safety in the Workplace - Case Study Example

HEALTH AND SAFETY IN THE WORKPLACE Student Name Course Tutor Date Table of Contents Table of Contents 2 Introduction 3 Existence of duty of care by an owner or employer of a premises 3 Determination of liability; Strict Liability 5 Breach of Criminal Law 6 Breach in Civil Law 6 Conclusion 7 REFERENCES 8 Introduction It is material that all factories and work places adhere to the required standards of care in relation to maintaining the workplace and assuring the safety of all those persons who work in it. In the case scenario presented it would be important to determine whether the storage area which includes a two storey warehouse used for the storage of packaging materials, redundant equipment that are damaged by wooden racking would fall within the definition of a workplace. The other issue would be whether the owner of the building had taken all reasonable steps to ensure that the building is safe and trespassers are not allowed into it. The steps taken were a “No entry sign” had been placed reading ‘Danger No Entry’ on the ground floor adjacent to staircase and the electricity has been disconnected. The security company supervising the site by regular visits has reported signs of unlawful entry into the warehouse. The main issues to be determined are; a) Whether or not there exists a relationship between the owner of the building and any other person that might reasonably use it a duty of care? b) Has the owner of the premises taken reasonable and practicable steps to ensure that the building is secured and is capable of averting any reasonable and foreseeable risks? c) To what extent is the owner of the storey liable for any reasonable threats that might occur? Existence of duty of care by an owner or employer of a premises According to the Work Health and Safety at Work 1974 a place of work is defined as “a place including buildings , open air sites , vehicles, vessels, aircraft, hovercraft tents movable structures and installations on land or offshore or anywhere else and whether floating or fixed.”1 Safety in relation to the workplace is “a place where an employee works for any period of time. The workplace should not only be safe but safe in terms of accessibility in the workplace for the workers must be ensured.”2 This duty does not only extend to the workers but any other third person who is likely to suffer loss or injury while accessing the work premises. In this case therefore the two storey warehouse are to be considered as premises that is used as a storage area, and therefore an occupier has a duty to ensure that any premises are safe even for third parties or trespassers who can potentially use the premises. Generally in the law of tort an occupier is defined as person who has control over the premises, and as stated in the case of AC Billing & Sons Ltd v Rodem3 therefore occupiers liability shows the duty of care owed by occupiers of any premises to visitors whether there illegally or legally who can suffer either personal injury within the premises (Australian Safeway Stores Pty Ltd v Zalzuna)4. The act at Section 2(1) sets out the general duty of care that the employer has a general duty so far as is reasonably practicable to ensure the health, safety and welfare at work of all his employees”5. It has been stated in the case of Edwards v National Coal Board [1949] that the employer has taken the necessary measures to avert any risk. In establishing whether or not there is a tort of occupiers liability it must be proved that the occupier was in control or occupation of the premises, and that he was negligent. In my view the case of the storey warehouse there exists a real risk of the floor boards falling and the occupier has taken reasonable steps to ensure that as far as is reasonably practicable that the premises is free from risk and that third parties are protected6. There is a potential in any workplace that a person other than the employee can be injured in the workplace and in this instance the Act states that an employer has a duty to ensure that persons not within their employment are e not exposed to any risk in the workplace7. In the case of R v Associated Octel Co Ltd [1996] the responsibility is also owed to contractors, agency workers, student, visitors and members of the public. Determination of liability; Strict Liability It would be evident to draw a reasonable conclusion that the liability presented in the case scenario would lie on strict liability. In strict liability cases the only case where negligence is assumed and one needs only to prove the acts had occurred. In this case if a person is injured in the storey warehouse used for storing packaging materials and redundant equipment including those damaged by wooden racking the one would only need to prove that they were injured and negligence would be assumed. In relation to risk assessment, a failure to establish and analyse the relevant risk likely to arise in the workplace would amount to a criminal offence8. Further the things that are kept in the warehouse are capable of causing foreseeable damage despite the warning signs that have been place and that the owner must have a proprietary interest in the status of the land Breach of Criminal Law Criminal law is an area of law, whose main role is to punish an offender for the breach of law, and in the area of torts, a criminal charge would be levied if a specific criminal element or requirement is breached. In criminal cases a claimant would state that the defendant was in breach of a statutory requirement, hence liable for damages. A statute is specifically breached if it states expressly or impliedly that the respondent has an obligation under the particular statute. In criminal law a breach of section 2(1) of the Work Health and Safety Act 1974 which states that “there shall be the duty of every employer to ; ensure, so far as is reasonably practicable, the health safety and welfare at work of all his employees” amounts to a possible prosecution under criminal law. The duty contemplated must have been owed to the claimant, for example if a trespasser is injured at the warehouse then he must say that the statutory provision was intended to protect persons whom are within his class. In this case the owner of the building was in breach of duty imposed by statute and that breach directly caused the loss9. Breach in Civil Law Liability in civil law arises in the tort of negligence in that there is a common law duty that every person has a duty to take reasonable and due care not to occasion an unforeseeable injury. In many instances a duty arises when there is a relationship that exists and in this case an employer-employee relationship. The Occupiers liability Acts 1957 and 1984 provides for claims for any incidences that occur within the workplace. Identified above the most obvious tort in a civil claim to be charged would be occupier’s liability. The breach would mainly fall under the tort of negligence or the breach of duty, where a person in authority fails to do that which he ought to have done as a duty. In the case of Wilsons & Clyde Coal Co. Ltd v English [1938] a test was set out to establish what would be the safe system of work. The duty encompasses the establishment of a safe place and safe systems of work, reasonably safe and competent fellows and safe plant and appliances. In my opinion there ought to be guards or employees watching over the warehouse and the main issue is that whether they are protected. In the determination of whether a duty was breached, there must be a duty of care owed, the duty was breached and that it was as a result of that breach that the loss occurred10. The standard of duty of care to be owed is that it was an ordinary reasonable man would show, and in this case the owner of the premises. An aggrieved person would be entitled to damages or any form of monetary or non-pecuniary losses that they had incurred as loss. Conclusion It is prudent and material to conclude that a breach of a tort of negligence or occupiers liability gives rise to a potential criminal or civil liability to any person who is injured by the breach. In seeking to rely on both grounds as the basis of the suit then sufficient proof must be brought in civil suit in a balance of probabilities that there existed a breach of a duty of care, and that as a result an injury or loss was suffered by the plaintiff. On the other hand in criminal law the standard set is quite high that of beyond reasonable doubt, or strict liability should be effectively proved. The “duty of care” is what gives an employer or an occupier the duty to ensure that the premises or any other material placed within the; land or premises does not pose a risk to any other person visitor or trespasser in the land. REFERENCES Glofcheski, R, ‘Plaintiff’s Illegality as a Bar to Recovery of Personal Injury Damages’19 Law Society (1999) 6. Tan, K. (1995), ‘Volenti Non Fit Injuria: An Alternative Framework’ 3 Tort Law Review (1995) 208. Work Health and Safety at Work Act, 1974 G. Williams, Joint Torts and Contributory Negligence (1951), 353-4 J.G. Fleming, The Law of Torts, (9th edn 1998), 466 Johnstone, R. , Occupational Health and Safety Law and Policy: Text and Materials, (Lawbook Co., 2004). Read More