(Failure to discharge a statutory or common law duty creates criminal liability).
The Sections of the Acts.
AnalysingSection 8(The General Duties of Employers to their Employees).
Using Labour Broker labour. Crown Chicken vs Rieck SCA.
How far must employers go to discharge their duties?
The term 'Reasonably Practicable'
The broad duties of employers (mines & works) in the Mine Health & Safety Act is contained in Sections 5 to 19 with numerous other duties placed on employers in the regulations.
Inspectors cannot currently recommend homicide charges. (Common Law).
Who can sue who?
15.Case Studies.
16. The Draft National Occupational Health Safety Bill.
* Who can appoint persons in terms of the construction regulations?
* Codes of Practice and health and safety standards under Section 44 of the Act – What about the legal weight of codes and standards not incorporated in the regulations? For example, we have a SANS Code of Practice 10333 for Rope Access work with stuff in it we don’t agree with (I think the code is basically a copy of the UK standards) so if an incident arises where do we stand if we did not comply with its requirements and the authorities bring it up because they will contest that it is “best practice”? I think it would make an interesting case!
* If the Client does not supply a comprehensive Health and Safety Specification (or no H&S Specification at all) and the Contractor writes up a Health and Safety Plan based on perceived risks, past experience on similar sites, general site requirements etc, what happens if an incident occurs that was caused by the Contractor whilst doing (or failing to do) something that the Client did not inform the Contractor about e.g. the Contractor works on site, does not know about certain gasses in a specific area, his personnel are overcome by fumes and the client says it is the Contractors fault as they did not identify the risk and make it part of the H&S Plan? This might sound strange but to see a comprehensive H&S Specification specific to the work to be performed from a Client is a rare thing indeed! I insist that the H&S Plan is authorized by the client (something not all clients like to do but is a legal requirement) so if something is omitted that may increase the risk on site, I am better covered in case an incident occurs. Usually we are given a 37.2 agreement to sign and the client gives us their site health and safety rules and regulations and generally what risks are on site. It is still usually not a proper specification! (I believe the Construction Regs will be amended to address the problem of specifications needing to be ‘SPECIFIC”). Basically a failing of the Construction Regs is that both parties should write up the H&S Specifications and Plan together – both should sit down together and do the risk assessments and work method statements. My point is, without comprehensive information regarding risk on a site, I can only write a Plan based on my perceptions, past experience etc. Will we both be liable if the smelly stuff hits the whirling thing – if my Risk Assessment based on the Client’s information is deemed to be “reasonable”, surely the focus will go back onto the Client? The problem is that the Dept of Labour, whenever an incident occurs on a site, visits and questions the Contractor first, contrary to the spirit of the Construction Regulations which were written to involve the Client and who should be the DoL ‘s first port of call. Basically, if the Client’s H&S Specifications are poor or non-existent and the Contractor complies with its H& S Plan (reasonable and written in good faith), the main bulk of the problem should lie with the Client. It would be great to hear all the legal aspects relating to this problem.
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