Safety and Health legislation and obligationsPresentation on 1 May 1996
"Even if an injured employee has contributes to an accident or if another employee was totally responsible, the employer may be held liable".
"Responsibility for the duty of care imposed under the Occupational Safety and Health Act can not be delegated to another person" said Stephen Williams, Senior Associate of the law firm Parker & Parker. Stephen was addressing the twelfth CIP seminar at the WACA on 1 May.
The duty of care in negligence an employer has to employees requires weighing up whether;
· the risk of injury was foreseeable;
· the risk could be practically avoided, or at least lessened;
· the failure to eliminate the risk was a breach of the duty of care for the injured employee; and
· that failure caused the injury.
The obligation to eliminate the risk is considered in the courts by taking into account the severity of the injury balanced against the cost, practicality and the convenience of preventive measures. The bottom line is the provision of a reasonably safe working environment (with adequately trained staff).
Employees too have a duty of care under occupational safety and health legislation to fellow employees. Directors, company secretaries and other company officers may be held personally liable.
Therefore, to minimise exposure to litigation, employers should identify, adopt and periodically review compliance to ensure;
· workplace safety aims and policies; (under constant review and clearly part of training procedures)
· appropriate management including those with responsibility for safety;
· information, procedures, safety signs and posters;
· training procedures to develop skills adequate to the tasks; and
· ensure safe plant, equipment and materials relative to documented safe working procedures.
Stephen recommended creating a paper trail dealing with safety performance, standards, work practices, inspection schedules, requirements for personal protection, hazardous substance control procedures to comply not only with regulations, but also to industry standards.
Also recommended was a workplace audit that identifies and assesses all plant, hazards, training and instruction, a system of supervision, control.
Stephen stated again that the employer simply cannot contract out of OH&S legislation and responsibilities. Some simple measures could minimise exposure to increasingly large claims.
Maija Burtmanis, solicitor of the Parker & Parker insurance division, introduced the subject of product liability.
Broadly, where injury is the result of a defective product and the defect was foreseeable, claims may be pursued either under common law or, in the case of a consumer product, under Part VA of the Trade Practices Act 1975. These rules assume there is a duty of care to avoid injury to others through the supply of defective products. The duty cannot be excluded by contract (ie. cannot be contracted out of).
Whereas common law and occupational safety and health legislation address product related injury in the workplace, Part VA of the Trade Practices Act 1974 covers injury by the consumer related to the use of the product. The Act is primarily for defective or unsafe products that are "not as safe as persons in the community are generally entitled to expect" and deficiencies in supporting information.
Part VA applies to all consumer products that have come onto the market since 9 July 1992 including raw materials and finished goods that are personal, domestic or for household purposes.
Three types of defects are recognised;
· Manufacturing defects that are inadvertent and unplanned (as a result of production, transport or storage). These are normally one-off defects in a product or production-run.
· Design or formulation defects that occur at the beginning of design or formulation. These are repeated defects and inherent in the product.
· Informational defects from information conveyed or not conveyed (ie. information that should have been conveyed, whether deliberate or inadvertently). Labelling, literature, guarantees, advertising and promotion and information media. These include failure to identify a risk which is known or should have been known.
The legislation is aimed at;
· Importers, where the manufacture is overseas;
· Persons, who apply their own names or marks;
· Manufacturers of components of the finished goods; and
· Producers of raw materials.
In other words distributors, own-branders, service providers and repairers may be defendants under product liability laws. Marija mentioned the deeming provisions of the Act. If the manufacturer cannot be readily identified, a retailer can be deemed to be the manufacturer.
Claimants may be product purchasers, consumers, bystanders, workplace employees, consumer groups etc., who suffered;
· Personal injury;
· Loss through injury to another person; or
· Damage to;
-other goods that are for personal, domestic or household use; or
-land, buildings or fixtures that are ordinarily acquired for personal use.
Claimants must prove;
· Product was defective or unsafe, and
· Loss or damage was caused by the defect.
Failure to warn at time of supply of known and discoverable risks (including known risk or those which should have been known including for regulations and foreseeable misuse of the product);
· Reasonably expected, including misuses; and
· The times at which the goods were supplied.
Damages include for;
· Personal injury;
· Damage to real property; and, under certain circumstances
· Economic loss.
Measures to minimise claims and costs include;
· Regular process and product testing (quality control including of containers),
· Legal review of;
-warnings and instructions on products,
-promotional material and advertising,
-guarantees and warranties,
-contracts for the;
.purchase of raw materials/components (including packaging),
.supply of goods,
· Measures to review;
-literature and research to maintain awareness of risks,
-legislation related to occupational health and safety,
· Effective liability insurance,
· Review of defect response procedures including;
-product recall from market, and
Tony Terry, Director Occupational Health of WorkSafe Western Australian addressed the workplace.
Details of the new Occupational Safety and Health Legislation were provided that was anticipated to be proclaimed on 1 July 1996.
Tony opened his presentation with details of the Government's Occupational Safety and Health 2000 Vision. It promoted that;
· WA enterprise achieve world best practice in occupational safety and health;
· WA achieve the lowest injury, disease and fatality rates in Australia; and
· Injury, disease and fatality rates to be at least 50 per cent lower than they are now (our emphasis).
The new legislation was outlined with a key being the understanding of what is reasonably practicable. This very important term was defined as having regard to;
· severity of the potential injury or damage;
· degree of risk of it occurring;
· state of knowledge at the time;
· means of removing or mitigating the risk;
· availability of the control measure; and
· cost of the control measure.
The legislation was described as a package comprising the
· National model regulations for the control of workplace hazardous substances
· National code of practice for the control of workplace hazardous substances
· Approved criteria for classifying hazardous substances
· National code of practice for the preparation of material safety data sheets
· National code of practice for the labelling of workplace hazardous substances
· List of designated hazardous substances
· Guidance note on workplace assessment
· Guidance note on health surveillance
Details of fines to a broad range of companies suggested an increase scrutiny by his department.
Cost saving options were also presented such as doing in-house workplace assessments and not using consultants. Tony also discussed the Material Safety Data Sheet which must precede or at least accompany the substance on its introduction to the workplace. The required workplace safety committee could be anticipated to influence the selection of products purchased by the quality of the MSDS.
Tony advised that the WA's legislation is available on the Internet at http://www.wt.com.au/safetyline.
Questioning and debate about the cost of the objectives of the 2000 Vision closed the evening's well received seminar.
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