After the positive response to a previous newsletter on the prosecutorial mind, I decided to once again pry the mind of the prosecution, this time utilising a construction related incident as an example. As I mentioned before, there is no hard-and-fast rule as regards the charges that may arise from an OHS incident. In fact much depends on the prosecutors whim - although all prosecutors are duty bound to utilise the most serious charge that can be brought against an accused. In terms of the OHS or MHS Acts, the most serious statutory charge, excluding the common law, that could be brought against an accused would be a section – as opposed to a regulation – contravention. A section of the Act carries more weight-in-law as well as higher penalties than a regulation.
We have had limited OHS Construction Law, in the form of section 10 and various provisions of the (now repealed) General Safety Regulations long before the Construction Regulations were promulgated in 2003. In fact the Construction Regulations essentially give flesh to the section 10 skeleton, particularly as regards Designers, Erectors and Installers of articles (structures / buildings) for use at work or on any premises. It is for this reason that most of the recommended charges pertaining to the Injaka bridge collapse in 1998 are in terms of section 10 of the OHS Act. Even the much publicised introduction of client’s duties is really nothing new. In terms of section 37 of the OHS Act clients (employers) have always been obliged to engage their mandataries (principal contractor and contractor) in some way. Since 1983 clients / employers would have been courting danger if, for example after an incident, they could not demonstrate some involvement with their mandataries. This is because they are presumed in law to committed the crimes of their mandataries unless they prove some degree of involvement. You will recall my previous newsletters on the section 37(2) Written Agreement, a contract which goes some way in demonstrating client involvement with contractors.
I was hoping that by this stage we would have had some real insight into the nature or type of charges that could emanate from the Construction Regulations. An opportunity would have been the publication of the report into the marquee collapse on International Women’s Day a few years ago, just after the promulgation of the Construction Regulations. Former Gauteng Premier Shilowa promised to make it public but then again a politician’s promises are like cheques in the post!
Assume the following scenario. A client requires construction work – demolition of a building and construction of a new structure in its place - to be performed and engages the services of a principal contractor. Although aware that the building contains asbestos, the client does not communicate this to the principal contractor via the Health and Safety Specifications. The client also does not conclude a section 37(2) Written Agreement with the principal contractor. The client does, however, appoint the principal contractor in writing. And that’s it.
The principal contractor engages the services of various contractors whom he appoints in writing and each contractor in turn appoints a competent Construction Work Supervisor in writing. He does not conclude a section 37(2) Written Agreement with the various contractors. The principal contractor does obtain a Method Statement from the demolition contractor detailing, amongst other things, the safe removal of asbestos – despite the client’s failure to specify the presence of asbestos in the Health and Safety Specifications. The principal contractor fails to obtain Health and Safety Plans containing written Risk Assessments from the various other contractors as well as the Fall Protection Plan from the relevant contractors who would be working at elevated positions. A file of sorts is compiled by the principal contractor and kept on site. Periodically the client would visit the site and do a casual walk-about with the principal contractor essentially to gauge progress.
The demolition of the structure proceeds without incident. During the construction of the new structure a worker falls to his death from a height without the necessary fall prevention equipment being supplied and utilised. The Department of Labour is advised and the scene cannot be disturbed until permission is granted. A Formal inquiry in terms of section 32 of the OHS Act concludes that various parties contravened numerous provisions of the OHS Act. There could be more recommended charges but for purposes of this Newsletter I will list the following:
The client contravened Construction Regulation 4(1)(a) by failing to provide the principal contractor with Health and Safety Specifications in general and specifically failed to advise in the specifications that the structure to be demolished contained asbestos.
The client contravened Construction Regulation 4(1)© by failing to provide the principal contractor with any information that may impact upon health and safety of any person namely the presence of asbestos in the structure.
The client contravened Construction Regulation 4(2) by failing to discuss and negotiate the contents of the principal contractor’s Health and Safety Plan and ensure that it was implemented.
The principal contractor contravened Construction Regulation 5(1) in that he failed to provide the client with a suitable Health and Safety Plan based on the client’s Health and Safety Specifications.
The principal contractor contravened Construction Regulation 5(5) by failing to obtain, discuss and ensure written Risk Assessments, Fall Protection Plans are obtained from contractors as part of their respective Health and Safety Plans.
The contractor contravened Construction Regulation 7(1) by failing to ensure that a written Risk Assessment be incorporated into a Health and Safety Plan.
The contractor contravened Construction Regulation 8(1) by failing to designate a competent person to compile a Fall Protection Plan and failing to implement a Health and Safety Plan.
The contractor contravened section 8(2)(f) by failing to provide the deceased employee with a safe and healthy workplace in that he failed to ensure provide the employee with the necessary personal protective equipment (PPE) for working at elevated positions.
The contractor contravened General Safety Regulation 2(2) by failing to provide the necessary PPE.
The Inspector’s Report eventually finds its way to the prosecutors desk. The prosecutor must now consider the evidence to determine whether there is sufficient prima facie evidence to charge natural (persons) and juristic persons (companies) with either statutory or common law offences such as culpable homicide. (The inspector does not have a mandate to recommend charges under the common law). Based on the recommendations of the Inspector who, in theory at least, is an expert witness for the prosecution, the prosecutor ‘s charge sheet reads as follows :
The Charge Sheet.
The contractor personally (Accused No. 1), his Construction Work Supervisor personally (Accused No. 2) and the company (Accused No. 3) who employed the deceased is charged with the following:
Main count : Culpable homicide in that the accused negligently caused the death of the deceased.
Alternative count : Contravention of section 8(2)(f) by failing to provide the deceased employee with a safe and healthy workplace in that he failed to ensure provide the employee with the necessary personal protective equipment (PPE) for working at elevated positions.
Second charge : Contravention of Construction 7(1) by failing to ensure that a written Risk Assessment be incorporated into a Health and Safety Plan.
Third charge : Contravention of Construction regulation 8(1) by failing to designate a competent person to compile a Fall Protection Plan and failing to implement a Health and Safety Plan.
(These two could be combined as one charge namely failed to compile a Health and Safety Plan).
The Principal Contractor personally (Accused No. 4) and his company (Accused No. 5) are charged with the following:
Main count : Culpable homicide in that the accused negligently caused the death of the deceased.
Alternative count : Contravention of section 8(2)(f) by failing to provide the deceased employee with a safe and healthy workplace in that he failed to ensure provide the employee with the necessary personal protective equipment (PPE) for working at elevated positions.
(Although the deceased is an employee of the contractor, the principal contractor is presumed to have committed the crimes of the contractor in terms of section 37 of the OHS Act. The onus is now on the principal contractor to demonstrate that he acted reasonably vis-à-vis the contractor).
Second alternative Count : Contravention of section 9 of the OHS Act in that the accused failed to ensure that his activities caused harm to persons other than an employee to wit the accused failed to ensure that the contractor took proper steps to protect persons working at elevated positions by failing to ensure that Written Risk Assessments and Fall Protection Plans were incorporated into the Health and Safety Plan and implemented.
Second Count : Contravention of Construction regulation 5(1) in that he failed to provide the client with a suitable Health and Safety Plan based on the client’s Health and Safety Specifications.
Third count : Contravention of Construction Regulation 5(5) by failing to obtain, discuss and ensure written Risk Assessments, Fall Protection Plans are obtained from contractors as part of their respective Health and Safety Plans.
The Client (Accused No. 6).
Main count : Culpable homicide in that the accused negligently caused the death of the deceased.
Alternative count : Contravention of Section 8(2)(f). (Although the deceased is an employee of the contractor, the client is presumed to have committed the crimes of the principal contractor and contractor in terms of section 37 of the OHS Act. The onus is now on the client to demonstrate that he acted reasonably vis-à-vis the contractor).
Second Alternative Count : Contravention of section 9 of the OHS Act in that the accused failed to ensure that his activities did not cause harm to persons other than employees to wit the accused failed to ensure that the principal contractor took proper steps to protect persons working at elevated positions by failing to ensure that Written Risk Assessments and Fall Protection Plans were incorporated into the Health and Safety File.
Second count : Contravention of Construction Regulation 4(1)© by failing to provide the principal contractor with any information that may impact upon health and safety of any person namely the presence of asbestos in the structure.
Second Alternative Count : Contravention of Construction Regulation 4(1)© by failing to provide the principal contractor with any information that may impact upon health and safety of any person namely the presence of asbestos in the structure.
Third Count : Contravention of Construction Regulation 4(2) by failing to discuss and negotiate the contents of the principal contractor’s Health and Safety Plan and ensure that it was implemented and maintained.
I have not referred to all relevant sub provisions which ensure a charge sheet is technically legally correct and there are many other potential contraventions. The principal contractor can be charged for any of the crimes committed by the contractor and the client, in turn, for any of the crimes of the principal contractor. In actual fact the client can be charged for the crimes of either the principal contractor or the contractor. This can be done in terms of section 37 for OHS Act for statutory crimes only (OHS Act) and not for the common law crime of culpable homicide. In the scenario above, the tenacious prosecutor argues that there is sufficient linkage to an act or omission on the part of the client and principal contractor to link them to the death of the deceased. Had the principal contractor insisted upon and approved a documented Risk Assessment and Fall Protection Plan, the accident may not have occurred. The same argument could be used had the client, in conjunction with the principal contractor, ensured the Health and Safety Plans were implemented as envisaged by the Construction Regulations.
I have also used some license in this Newsletter but the main purpose is to stress the potential domino effect as regards criminal prosecutions in terms of the Construction Regulations.