Understanding OHS and your legal liability

“Do we want to see company executives going to jail in the aftermath of a workplace disaster in which lives are lost?” This question was posed at the 2019 Saiosh Health and Safety Conference.  DEBORAH RUDMAN reports

Advocate Hendrik Terblanche, MD and senior legal consultant at Legricon, provided delegates at the 2019 Saiosh Health and Safety Conference with a crisp analysis of the legal liability of occupational health and safety (OHS) officers and employers.

Citing the jail sentence handed down by a Turkish court in 2018 to key managers after the death of 300 workers at the Soma Mine, Terblanche pointed out that liability of employers has become a highly debated issue.

He drew the distinction between criminal and civil liability – and whether actions fall under common law or legislation, as well as the varying damages provided for by the law.

In the realm of criminal liability, citizens expect the government to maintain law and order, to make and enforce laws and to punish offenders. Terblanche said it should first be determined what the punishment hoped to achieve.

He noted that punishment has three aims: retribution, rehabilitation and deterrence.

Criminal sanctions range from a warning, a suspended sentence or a fine, to community service, house arrest or jail, with a criminal record. The courts take into account the nature and seriousness of the offence, the expectations of society and the personal circumstances of the wrongdoer.

Turning to civil liability, Terblanche said that the objective was to attempt to put the injured party in the position in which they would have been had the harmful event not occurred. The outcome could be an interdict, an order to restore something to its original state, to comply with a contractual obligation, or to pay compensation (damages) to the wronged party.

Although statistics were not confirmed, it was estimated that between 700 and 1 200 people die every year in South Africa in workplace accidents (excluding deaths from occupational diseases).

Terblanche also noted that more individuals die in motor vehicle accidents and from murder, with the total number for 2016 a sobering 450 000 deaths.

The unlawful killing of a human being is regarded as murder or culpable homicide. With the latter, the concept of negligence rather than intent is key.

Terblanche referred to an incident in South Africa where dolus eventualis – a form of intent very close to negligence – came into play: in December 2002, a fire at a factory killed 11 workers, who could not escape through the locked emergency doors. Had it gone to court, the premise would have been that if an employer locks emergency escape routes without providing a quick means of unlocking them, the employer foresees the eventuality that people could be killed in a fire, and reconciles him or herself to that outcome. Pleading guilty to the lesser crime of culpable homicide, the owner and manager were fined and issued with suspended jail sentences.

Several other cases have seen fines and/or suspended prison sentences being imposed on the wrongdoer employer.

Terblanche pointed out that prosecution can take 10 years and longer; and that the penalties do not serve the objectives of criminal liability. Administrative fines offer a quicker process, but are not effective in terms of mine health and safety. He added that they also may not be constitutional.

Under the Mine Health and Safety Act, the most common practice seems to be to issue Section 54 stoppage notices as a form of punishment, rather than as a form of prevention as originally envisaged.

In numerous cases, both locally and abroad, penalties for environmental damage were harsher than for harm caused to people in the workplace.

In conclusion, Terblanche proposed that enforcement should be proactive rather than reactive, and that it could be more useful to prosecute companies rather than individuals (as has been the approach in environmental challenges).