Practicability a guide to health and safety
‘Reasonableness’ determines measure of compliance with act
MINING employers are responsible for ensuring that working places are healthy and safe, as far as is reasonably practicable. The question is what criterion governs the question whether a working place is considered healthy and safe or not.
The mine and occupational health and safety department of ENSafrica is often confronted with a misconceived assumption that merely because an accident occurred in a working place and resulted in an injury to, or death of a person, then such a working place is automatically classified as unsafe and/or hazardous to health.
An employer is then placed in a situation where it is assumed that it failed to comply with its obligations, and it bears the responsibility to indicate that the workplace in question is safe. Such an assumption is incorrect in the large majority of cases.
To draw a conclusion as to whether a working place is healthy and safe (or not), objective criteria must be applied. In South African law, health and safety on mines is governed by the Mine Health and Safety Act, 1996 and the regulations, as well as the common law (Roman Dutch law, as amended by statutory laws and interpreted by our courts). An employer’s obligations are not only derived from common law and the act, but may also arise from contracts which may exist (for example, between an independent contractor company and the employer) and guidelines and instructions issued by the Mine Health and Safety Inspectorate (the relevant regulator) of the Department of Mineral Resources.
The act and regulations contain various provisions dealing with an employer’s obligation to provide a working place, which is healthy and safe, as far as reasonably practicable (see for example sections 2, 5, 7, 10 of the act). The standard of care, which the act requires of the employer is, in most instances, one of reasonable practicability. This phrase is defined in the act. The measures taken by an employer at a working place must take into account the particular hazard or risk concerned. The standard of care is a dynamic one and must take cognisance of developments in the relevant industry. The test of practicability is an objective one which must be evaluated in the context of the particular work.
In order for an employer to demonstrate a system which is healthy and safe, which ensures a healthy and safe working environment, a holistic approach must be adopted. In other words, an employer may elect to use a number of measures to ensure healthy and safe working places.
There are various examples of measures which may be included in a health and safety management system. An employer may rely on, among others, formal and informal training of employees; an organisational structure of experienced and competent persons; equipment which is safe and does not endanger the health of persons; systems of work which are safe and which do not expose persons to unhealthy conditions; health and safety standards and procedures; supervision and proper discipline; maintenance procedures; and risk management.
In other words, one must objectively consider whether a working place is safe, as far as reasonably practicable, and not hazardous to health, by ref- erencing and analysing the abovementioned measures. If one health or safety measure on which an employer relied was not effective, it does not mean that the working place was unsafe or hazardous to health.
The statutory measures of health and safety (as set out in the act and regulations) must be interpreted in light of the common law duty of care. In general, the duty of care means that the employer, acting personally or through its agents, must take reasonable care for the safety of its employees. Our courts have used the standard of the reasonable person as the criterion to determine the reasonableness of conduct and have held that the reasonable person is “the man (person) of ordinary knowledge and experience”.
“Reasonableness” is ultimately the measure which determines whether an employer’s conduct complies with the act, the regulations binding in terms thereof and/or the common law.
Non-compliance by an employer
A DUTY OF CARE