Occupational health and safety

In the case Azzopardi v. GP Limited, decided on 2nd March 2018, the Court of Appeal presided over by Chief Justice Silvio Camilleri, Mr Justice Tonio Mallia and Mr Justice Joseph Azzopardi, confirmed the decision taken by the Court of First Instance to apply the test of the standard of care expected of the reasonable man (bonus paterfamilias) as a benchmark of the employer’s responsibility.

Facts of the case

Mr Azzopardi, an employee of GP Limited, suffered an injury of a permanent nature at the place of work and proceeded to file proceedings against GP Limited (defendant company). Mr Azzopardi (plaintiff) asked the Court to declare his former employer solely responsible for the permanent damage which he suffered, liquidate the damages and order the defendant company to settle the liquidated damages as compensation. The defendant company denied responsibility for the injuries sustained by the plaintiff.

Throughout the proceedings of the case, the plaintiff testified that he was made to perform cumbersome duties on the job which involved the repetitive exercise of carrying a heavy container filled with paper trimmings to a skip, tipping the container over into the skip and emptying it of all paper trimmings. In his evidence, the managing director of the defendant company testified that it was the responsibility of the guillotine operator, the role which the plaintiff fulfilled, to decide what amount of paper trimmings should be collected in the container before carrying it to the skip, a short distance away, to dispose of the paper trimmings. The managing director reasoned that the amount of paper trimmings collected within each container when its contents are disposed did not affect the production of work and denied ever having ordered his employees to wait until a container reached maximum capacity of paper trimmings before disposing of them.

Legal Considerations of Court of First Instance

The Court primarily noted that as a general principle, the observance of health and safety at work should be considered as a matter of public interest. The Court proceeded to acknowledge that it is the duty of each employer to provide a ‘safe system of work’ and to provide the means, equipment and environment which are free from any danger or risk to the health and life of their employees, in accordance with the Occupational Health and Safety (Promotion) Act of 1994. The Court also held that it is the duty of each employee to safeguard their own health and safety and that of their fellow employees in the same work place.

The Court made reference to the case Buhagiar et. v. Secretary of the Office of the Prime Minister, decided in 2009, in which the Court dismissed the existence of any form of strict liability which renders the employer liable when an incident at the place of work occurs. The Court reasoned that responsibility for damages under the Maltese legal system is fault-based, which means that in each and every case there must be a link between cause and effect.

In the present case, the Court observed that the machine operated by the plaintiff was not dangerous and that the environment within the factory where the plaintiff worked did not pose any risk to the plaintiff’s health, but noted that the injury suffered by the plaintiff resulted as a consequence of the repetitive nature of the work which he carried out.

The Court then referred to Barbara v. Mizzi, decided in 2005, in which it was held that repetitive work can cause physical damage to the employee, even if the work is not intrinsically dangerous. In such an event the employer was bound to introduce a system which minimizes exposure, in the absence of which it would be justified that the employee be compensated for the damage suffered. The Court acknowledged that there are circumstances in which a certain job would not appear to pose any danger, but which might still create unpleasant consequences to the employee due the repetitive manner in which it is carried out. The Court questioned the possibility that an employee could be compensated for the damage suffered in similar circumstances, i.e. when it would not appear that the employer breached any obligation imposed by any occupational health and safety regulations and when the work place environment seems to be ideal. The Court concluded that such circumstances are to be examined more intrinsically by applying the test of the standard of care expected of the reasonable man (bonus paterfamilias) as the benchmark of the employer’s responsibility.

By way of applying the above principles to the case at hand, the Court noted that the issue which must be examined is whether the defendant company is in any way responsible for the injuries sustained by the plaintiff at the work place in such a way that the defendant company fell short of maintaining the standard of care expected of the reasonable man.

The Court examined the various measures which the defendant company had introduced to minimize the risks which employees such as the plaintiff may be faced with, and acknowledged that the defendant company had everything within its power to fulfil its responsibilities and obligations. The measures implemented by the defendant company included a policy which established that the plaintiff had the authority to ask other employees to help with the handling of the container, discretion granted to the plaintiff to decide when to empty the container of paper trimmings. The defendant company had also proven that there was a short distance between the paper trimmings container alongside the guillotine machine and the skip and that stack lifts had been installed to facilitate the lifting of paper to the level of the guillotine machine, amongst a number of other measures.

The Court observed that the defendant company had introduced measures intended to prevent injury at the workplace, by means of which the risk of injury similar to that suffered by the plaintiff was minimized. The Court concluded that the defendant company had done all that was expected of it when applying the test of the standard of care expected of the reasonable man and that therefore, the defendant company was not to be held responsible for the injuries suffered by the plaintiff.

Decision of the Court of Appeal

The plaintiff (appellant) appealed the decision of the Court of First Instance on the grounds that his previous employer, the defendant company, (respondents) be held responsible for the damages suffered by him at the workplace and compensate him accordingly.

After quoting a number of judgements which confirmed that the employer is duty bound to provide a place of work which is free from danger and risk to the health of the employees, the Court of Appeal proceeded to make reference to the case Micallef v. Allchem Limited, decided in 2009, in which it was held that the diligence expected of the employer is that of the bonus pater familias, i.e., that of the standard of care expected of the reasonable man, and not any higher degree of care. In this case the Court held that while the employer is duty bound to provide a safe system of work and a safe place of work for his employees while ascertaining that the employees are properly trained to perform the work expected of them, the employees are also duty bound to follow the instructions laid out by their employer and to use common sense. The Court of Appeal quoted the case Micallef v. Pisani, decided in 2001, wherein it was held that while the employer is obliged to provide a safe system of work and to ensure that adequate measures of protection had been introduced where hard work was expected to be carried out by employees, it did not mean that the employee did not have an obligation to exercise diligence and attention in the performance of his work and avoid accidents at the work place by exercising attentiveness.

In light of the above, the Court of Appeal reasoned that the weight of the paper trimmings container depended on its capacity, a decision which ultimately rested with the appellant who had a choice to empty the container before it was too heavy to handle. The Court of Appeal also noted that the appellant had the help of fellow employees at his disposal and that the distance between the position of the paper trimmings container and the skip was a short one. The Court of Appeal concluded that the respondents could not be held responsible for the injuries suffered by the appellant and confirmed the decision of the Court of First Instance.