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Le­gal im­pli­ca­tions of work­ing at height ac­ci­dents in the UAE

Ac­cord­ing to the In­ter­na­tional Labour Or­ga­ni­za­tion es­ti­mates, ap­prox­i­mately 6,400 peo­ple die from oc­cu­pa­tional ac­ci­dents or dis­eases and 860,000 peo­ple are in­jured on the job ev­ery day. The big­gest cause of fatal ac­ci­dents in work­places in most of the de­vel­oped world have been falls from height, from scaf­fold­ing, lad­ders, ropes, and ac­cess plat­forms.

The In­ter­na­tional Pow­ered Ac­cess Fed­er­a­tion (IPAF), in its fatal in­jury rate anal­y­sis for 2017, re­veals that the most com­mon cause of deaths re­lated to ac­cess plat­forms in 2017 was elec­tro­cu­tions, tak­ing over from falls in 2016, and coun­tries that saw a spike in the num­ber of fa­tal­i­ties in­cluded Spain, France, Italy and the US. The US, while it has around 43% of the global mo­bile el­e­vat­ing work plat­form (MEWP) fleet within its bor­ders, saw the per­cent­age of to­tal re­ported fa­tal­i­ties rise to more than 80%.

IPAF’S safety cam­paign for 2018-19 out­lines why op­er­a­tors and man­agers should carry out full risk as­sess­ments, choose the cor­rect equip­ment for the job, con­duct site and ma­chin­ery in­spec­tions, use trained and fa­mil­iarised op­er­a­tors un­der proper su­per­vi­sion and im­ple­ment ad­e­quate seg­re­ga­tion from other plant ma­chin­ery and traf­fic.

Ac­cord­ing to IPAF, four ma­jor causes of ac­ci­dents that can re­sult in falls from MEWP plat­forms are risky op­er­a­tor be­hav­iour, ex­it­ing the plat­form at height, set­ting up near other ma­chin­ery or ve­hi­cles, and me­chan­i­cal fail­ure. These ac­ci­dents can be pre­vented by proper plan­ning and safely man­ag­ing the use of MEWPS. But, what should site and safety man­agers do if a worker falls from height and gets in­jured or dies, aside from con­tact­ing emer­gency ser­vices and no­ti­fy­ing the au­thor­i­ties?

What are the le­gal im­pli­ca­tions of such ac­ci­dents? Do the site man­agers and their se­nior man­age­ment have suf­fi­cient knowl­edge about the lo­cal leg­is­la­tion, and the dos and don’ts of re­port­ing in­ci­dents to au­thor­i­ties?

These ques­tions were an­swered at the re­cent IPAF Mid­dle

East Con­ven­tion 2018 held in Dubai, where Ahmed Khalil Ab­dulka­reem, prin­ci­pal safety en­gi­neer, health & safety de­part­ment, Dubai Mu­nic­i­pal­ity, and Re­becca Kelly, part­ner at law firm Morgan Lewis, jointly pre­sented in­sights about typ­i­cal work­ing at height ac­ci­dent in­ves­ti­ga­tions in the UAE, re­port­ing pro­cesses, lo­cal leg­is­la­tion and in­di­vid­ual and cor­po­rate li­a­bil­i­ties.

THE IN­VES­TI­GA­TION PROCESS

Ac­cord­ing to Re­becca, the in­ves­ti­ga­tion pro­cesses in the cases of fraud and health and safety ac­ci­dents in the UAE gen­er­ally in­volve the same courts and pub­lic pros­e­cu­tors. How­ever, or­gan­i­sa­tions may need to in­ter­act with other ju­ris­dic­tions and au­thor­i­ties de­pend­ing of the na­ture of the ac­ci­dents and their lo­ca­tions.

In Abu Dhabi, a work­ing at height ac­ci­dent in­ves­ti­ga­tion will in­volve au­thor­i­ties such as the Abu Dhabi Oc­cu­pa­tional Safety and Health Cen­tre (OSHAD), along with the lo­cal mu­nic­i­pal­ity, po­lice and civil de­fence. Other reg­u­la­tory bod­ies could be in­volved de­pend­ing on the type of work site and in­dus­try sec­tor.

In Dubai, the Dubai Mu­nic­i­pal­ity plays a piv­otal role in in­ves­ti­gat­ing ac­ci­dents on con­struc­tion sites. For this pur­pose, it es­tab­lished a ded­i­cated ac­ci­dent in­ves­ti­ga­tion team (AIT) in 2016 un­der its health and safety de­part­ment that works 24/7 to han­dle all kinds of ac­ci­dents that oc­cur in con­struc­tion en­vi­ron­ments, ex­clud­ing crim­i­nal cases, sui­cides and traf­fic ac­ci­dents.

When the Dubai Mu­nic­i­pal­ity re­ceives a call on the emer­gency num­ber 800900, the AIT team is dis­patched to the ac­ci­dent site to start the in­ves­ti­ga­tion process.

The first step fol­lowed by the AIT is se­cur­ing the ac­ci­dent site in order to pre­vent tam­per­ing of the ac­ci­dent scene.

“It’s an es­sen­tial re­quire­ment for the in­ves­ti­ga­tion team to seize the site of an in­ci­dent. If an in­di­vid­ual tam­pers with ev­i­dence on an ac­ci­dent scene, then the in­di­vid­ual or com­pany could be charged with a crim­i­nal act,” says Ab­dul.

THE DUBAI HSE RE­PORT­ING SYS­TEM

The Code of Con­struc­tion Safety Prac­tice has dif­fer­ent def­i­ni­tions for dif­fer­ent types of in­juries. All those def­i­ni­tions may re­quire that any in­jury be re­ported to the Dubai Mu­nic­i­pal­ity and not only the worst case sce­nario of a fa­tal­ity.

“Or­gan­i­sa­tions need to be aware about their re­port­ing obli­ga­tions for the pur­pose of the gov­ern­ment’s statis­tics re­quire­ments. It may be dif­fi­cult to de­ter­mine the ex­tent of in­jury at the time of the ac­ci­dent or on the same day, but if it’s re­ported im­me­di­ately, then the or­gan­i­sa­tion is more pro­tected if the in­jury be­come se­vere a few days later,” says Ahmed.

The ex­ter­nal process for in­ci­dent no­ti­fi­ca­tion, re­port­ing, record­ing and data usage in­volves the fol­low­ing steps:

1. The first wit­ness to an in­ci­dent in­forms

the su­per­vi­sor, who in­forms the man­ager 2. The man­ager iden­ti­fies the type of in­ci­dent and no­ti­fies the con­cerned au­thor­i­ties such as the Dubai Mu­nic­i­pal­ity, Dubai Po­lice, and Dubai Civil De­fence

3. The Dubai Mu­nic­i­pal­ity’s Ac­ci­dent In­ves­ti­ga­tion Team ar­rives and pre­pares to sub­mit the in­ves­ti­ga­tion re­port

4. The in­ves­ti­ga­tion re­port leads to le­gal

pro­ceed­ings

5. Col­lec­tion and anal­y­sis of the in­ci­dent data The in­ter­nal process in­volves in the fol­low­ing steps.

• The first wit­ness to an in­ci­dent in­forms

the su­per­vi­sor, who in­forms the man­ager • The man­ager iden­ti­fies the type of in­ci­dent and be­gins an in­ter­nal in­ves­ti­ga­tion through in­ter­view and con­ducts a root cause anal­y­sis

• Com­pi­la­tion of an in­jury re­port

• Col­lec­tion and anal­y­sis of the in­ci­dent data • Devel­op­ment and im­prove of con­trol mea­sures

• Cre­at­ing aware­ness

• Re­duc­ing in­jury rates

The min­i­mum re­quire­ments by the Dubai Mu­nic­i­pal­ity to be in­cluded in the re­port form sub­mit­ted by the or­gan­i­sa­tion are the gen­eral in­for­ma­tion of the or­gan­i­sa­tion, in­ci­dent in­for­ma­tion, in­jured em­ployee data, de­tails of in­jury, de­scrip­tion of the ac­ci­dent, root cause iden­ti­fi­ca­tion, and cor­rec­tive mea­sures.

“The num­ber of days the in­jured worker is ab­sent from work is cru­cial. If it ex­ceeds three days, then the in­ci­dent is reg­is­tered as an in­jury. It’s not re­quired to re­port mi­nor first aid in­juries to the gov­ern­ment. How­ever, the de­tails of the in­jury must be recorded by the or­gan­i­sa­tion so that it can be pre­sented upon the re­quest of the au­thor­i­ties. It is also im­por­tant to pro­vide cor­rec­tive mea­sures. The Dubai Mu­nic­i­pal­ity needs to be con­vinced that the or­gan­i­sa­tion will not al­low an in­ci­dent to be re­peated in the fu­ture,” says Ahmed.

UN­DER­STAND­ING THE UAE LEG­IS­LA­TION

Re­becca warns that the time for seek­ing or un­der­stand­ing leg­is­la­tion should not be on the day of an ac­ci­dent.

“All par­ties in­volved in con­struc­tion ac­tiv­i­ties should be aware about the lo­cal leg­is­la­tion that ap­plies to each and ev­ery con­struc­tion project and en­sure that the pro­vi­sions of the leg­is­la­tion are in­cluded in their ap­pli­ca­ble poli­cies,” says Re­becca.

The oc­cu­pa­tional health and safety leg­is­la­tion in Dubai is sim­i­lar to that in many coun­tries. The vari­a­tions are due to dif­fer­ent le­gal sys­tems, stan­dards of leg­is­la­tion and en­force­ment, penal­ties for breaches, re­li­gious and cul­tural is­sues, knowl­edge of en­force­ment bod­ies, and de­gree of mon­i­tor­ing and re­port­ing to en­force­ment au­thor­i­ties.

The UAE leg­is­la­tion is struc­tured in the form of fed­eral laws, lo­cal or­ders, ad­min­is­tra­tive de­ci­sion and code of prac­tices. Dif­fer­ent laws will ap­ply de­pend­ing on the lo­ca­tion of the con­struc­tion site, notwith­stand­ing the fact that a com­pany may have its head of­fice in Dubai and a branch in Abu Dhabi. If an ac­ci­dent oc­curs on a site in Abu Dhabi, it will be gov­erned by Abu Dhabi laws. How­ever, the fed­eral law su­per­sedes the in­di­vid­ual laws of all the emi­rates, and it is a civil law ju­ris­dic­tion.

“Un­like a com­mon law ju­ris­dic­tion, a civil ju­ris­dic­tion is not based on prece­dent, which means that if an in­ci­dent oc­curs to­day and is treated in a cer­tain way in court, it doesn’t nec­es­sar­ily mean that it will be treated in ex­actly the same way in court tomorrow. How­ever, there is cod­i­fied leg­is­la­tion, and laws ap­pli­ca­ble when there’s an in­ci­dent are the pe­nal code and civil code. There’s a stark dis­tinc­tion be­tween civil li­a­bil­ity un­der the civil code, which is at­tached to the com­pany, and crim­i­nal li­a­bil­ity which is per­sonal and at­tached to the in­di­vid­ual. The crim­i­nal li­a­bil­ity is con­tained within the pe­nal code. Any ac­ci­dent in­ves­ti­ga­tion will be con­ducted in ac­cor­dance with these leg­is­la­tions and, there’s no way to cir­cum­vent their ap­pli­ca­tion,” ex­plains Re­becca.

In my ex­pe­ri­ence, no ac­ci­dent hap­pens due to one rea­son alone. Ma­jor ac­ci­dents are usu­ally the re­sult of sys­tem­atic man­age­ment fail­ures with re­gard to ex­e­cu­tion of safety poli­cies.” Ahmed Khalil Ab­dulka­reem

GET THE FACTS RIGHT EARLY ON - THERE’S NO LE­GAL PRIV­I­LEGE

In the aftermath of an in­ci­dent, emo­tions are high and peo­ple rec­ol­lect things that per­haps didn’t oc­cur; some are scared or in shock, and they will say and do things that are in­con­sis­tent with the facts. The safety pol­icy of a con­struc­tion com­pany should have the pro­vi­sion to bring peo­ple not present at the site to calm the work­ers and those who can re­spond to in­ves­ti­ga­tors in a clear and con­cise man­ner, know­ing that what­ever they say could im­pact the rest of the case pro­ceed­ings. One of the crit­i­cal ini­tial steps is com­mu­ni­cat­ing with work­ers as a large num­ber of them in the re­gion do not speak flu­ent English or Ara­bic. Mul­ti­lin­gual staff or trans­la­tion ser­vices should be avail­able to avoid the risk of mis­in­ter­pre­ta­tion of facts.

Re­becca points that in cases of re­portable in­ci­dents, there’re le­gal obli­ga­tions that must be taken into con­sid­er­a­tion, and there needs to be an ac­tion plan.

“For ex­am­ple, if there are wit­nesses, other in­juries or fa­tal­i­ties, the or­gan­i­sa­tion may need to no­tify em­bassies and seek le­gal coun­sel for the in­jured in­di­vid­u­als, wit­nesses, site man­ager and safety man­ager as well as the com­pany,” she says.

Re­port­ing to the Dubai Mu­nic­i­pal­ity needs to be done in ac­cor­dance with the re­port­ing to other au­thor­i­ties, be­cause sev­eral au­thor­i­ties will be present on the site af­ter the in­ci­dent is re­ported.

“The most crit­i­cal point with re­gard to per­sonal li­a­bil­ity is in­ad­e­quate su­per­vi­sion, which sug­gests that there may have been neg­li­gence, which au­to­mat­i­cally leads to civil or crim­i­nal li­a­bil­ity. So, the in­for­ma­tion pro­vided in the re­port to the Dubai Mu­nic­i­pal­ity should be con­sis­tent with those in the re­ports pro­vided to the other au­thor­i­ties, be­cause the ini­tial view of the cause of the ac­ci­dent re­ported doesn’t change through­out the in­ves­ti­ga­tion. If an in­di­vid­ual or com­pany takes a cer­tain view about the cause of an ac­ci­dent on the day of its oc­cur­rence, it’s al­most im­pos­si­ble to

change that view later. There­fore, I sug­gest that com­pa­nies stick to the facts and don’t with­hold any in­for­ma­tion,” ex­plains Re­becca.

If the case goes to a pub­lic pros­e­cu­tor, it will con­tinue as a fur­ther in­ves­ti­ga­tion. If the pub­lic pros­e­cu­tor finds any­thing un­clear in the re­ports sub­mit­ted by the var­i­ous au­thor­i­ties, they will sum­mon the site staff again for in­ter­views.

“The in­di­vid­u­als and com­pa­nies in­volved must re­spond to such re­quests. Un­like in com­mon law ju­ris­dic­tions, there is no con­cept of le­gal priv­i­lege un­der UAE law.

Any in­for­ma­tion that is dis­closed to the

Dubai Mu­nic­i­pal­ity, Dubai Po­lice and pub­lic pros­e­cu­tor will be used through­out the pro­ceed­ings. So, it is rec­om­mended to take le­gal ad­vice as to what is the ap­pro­pri­ate way to pro­vide in­for­ma­tion to the au­thor­i­ties. Or­gan­i­sa­tions should en­sure that em­ploy­ees who are wit­nesses or ac­cused have ac­cess to in­de­pen­dent le­gal ad­vice be­cause their in­ter­ests or con­se­quences may not be aligned with those of the com­pany,” says Re­becca.

PUB­LIC PROSE­CU­TION AND PENAL­TIES

Af­ter an in­ves­ti­ga­tion re­port is com­piled, the Dubai Mu­nic­i­pal­ity may re­fer the case to a pub­lic pros­e­cu­tor. In the case of mi­nor in­juries, it’s likely that the out­come will be a mis­de­meanour (a mi­nor wrong­do­ing called Jun’ha in Ara­bic). This re­sults in an in­di­vid­ual or com­pany charged for caus­ing an ac­ci­dent and da­m­age to the site, equip­ment or in­di­vid­u­als.

If the ac­ci­dent in­volves a fa­tal­ity, there’ll be a rec­om­men­da­tion to the pub­lic pros­e­cu­tor to pur­sue an in­di­vid­ual(s) or com­pany with a crim­i­nal case for neg­li­gence.

“In 99% of such cases, the ac­cused will have to go through the process of a crim­i­nal court. There’s no pro­vi­sion in the UAE law for in­dem­nity, where a com­pany can take re­spon­si­bil­ity for an em­ployee’s ac­tions and de­fend the case on his or her be­half. In the

UAE, the crim­i­nal li­a­bil­ity is at­tached to the in­di­vid­ual,” says Re­becca.

The ac­cused are charged with two main penal­ties for neg­li­gence: im­pris­on­ment un­der the crim­i­nal code, rang­ing from 1 year to 7 years de­pend­ing on the na­ture of the in­juries, fa­tal­i­ties and ex­tent of the ac­ci­dent. Ad­di­tion­ally, if there’s a fa­tal­ity, the ac­cused will be re­quired to pay civil dam­ages or blood money of up to AED200,000 as per the ‘Diya’ law.

“The en­tire process can take any­where from 18 months to 3 years, and some­times longer. That’s why it’s im­por­tant that or­gan­i­sa­tions sup­port their em­ploy­ees and help man­age their ex­pec­ta­tions. A lot of times, con­victed in­di­vid­u­als are given a cus­to­dial sen­tence, start­ing with a sen­tence of im­pris­on­ment but later sus­pended on ap­peal, usu­ally be­cause the em­ployer ap­peals that the con­victed per­son will con­tinue to work for them, will not be a flight risk and also won’t be in­volved fur­ther in the su­per­vi­sion of safety,” says Re­becca.

THE ROLE OF MAN­AGE­MENT

Com­pa­nies tend to as­sume that all the li­a­bil­ity is re­stricted to the con­struc­tion site or place of ac­ci­dent. If the in­ves­ti­ga­tion re­veals that the man­age­ment is at fault, then they, too, will be named as an ac­cused, ir­re­spec­tive of whether or not they have ever been on a con­struc­tion site.

“In my ex­pe­ri­ence, no ac­ci­dent hap­pens due to one rea­son alone. Ma­jor ac­ci­dents are usu­ally the re­sult of sys­tem­atic man­age­ment fail­ures with re­gard to ex­e­cu­tion of safety poli­cies,” says Ab­dul.

Ab­dul shares a real ac­ci­dent sce­nario from 2017 and the find­ings of the in­ves­ti­ga­tion. In July 2017, the Dubai Mu­nic­i­pal­ity re­ceived an emer­gency call from a main­te­nance work site in Dubai re­port­ing that an ac­cess plat­form cra­dle had col­lapsed. When the Dubai Mu­nic­i­pal­ity in­ves­ti­ga­tion team ar­rived at the site, they found two work­ers with mi­nor in­juries. The in­ves­ti­ga­tion re­vealed sev­eral faults with the cra­dle and ac­cess plat­form. The four ma­jor causes of the ac­ci­dent were: (1) No third-party test­ing was done or cer­tifi­cate is­sued af­ter a ma­jor al­ter­ation on the cra­dle; (2) No ad­e­quate pre­ven­tion main­te­nance; (3) No daily in­spec­tion prior to use; and (4) No ad­e­quate su­per­vi­sion from the per­son in charge or man­age­ment.

“We re­fer to equip­ment logs to ver­ify the main­te­nance sta­tus of the equip­ment. Un­der the safety code, the ac­cess equip­ment sup­plier or ren­tal com­pany must main­tain their equip­ment main­te­nance logs. All doc­u­ments recorded dur­ing the in­ves­ti­ga­tion should be sup­ported by ev­i­dence, and the wit­ness state­ment is not suf­fi­cient. The de­cid­ing factor for the pub­lic pros­e­cu­tor will be the equip­ment logs,” says Ab­dul.

Ab­dul also points out the crit­i­cal role of the safety of­fi­cer, the per­son on site re­spon­si­ble for im­ple­men­ta­tion of safety poli­cies and su­per­vi­sion of staff.

“As per the Code of Con­struc­tion Safety Prac­tice, the safety of­fi­cers or en­gi­neers should pri­mar­ily per­form the role of ad­vi­sors and not get in­volved in other jobs on site. They are en­trusted with del­e­gat­ing re­spon­si­bil­i­ties and man­ag­ing safety on sites, and they will have to take full re­spon­si­bil­ity for ac­ci­dents on site. My ad­vice to safety of­fi­cers is not to be over­con­fi­dent in their ex­pe­ri­ence, how­ever long it may be, and my ad­vice to em­ploy­ers is don’t send your work­ers to a place or height you can’t reach eas­ily by your­self,” says Ab­dul.

The time for seek­ing or un­der­stand­ing leg­is­la­tion should not be on the day of an ac­ci­dent.” Re­becca Kelly

When the Dubai Mu­nic­i­pal­ity re­ceives a call on the emer­gency num­ber 800900, its ac­ci­dent in­ves­ti­ga­tion team (AIT) is dis­patched to start the in­ves­ti­ga­tion process.

Ahmed Khalil Ab­dulka­reem, prin­ci­pal safety en­gi­neer, health and safety de­part­ment, Dubai Mu­nic­i­pal­ity.

Re­becca Kelly, part­ner, Morgan Lewis.

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