What does the Law Say?
We are often asked this question by our clients, so we decided to find out and requested Advocate Pothier to offer a legal opinion. We have placed the Conclusion at the top of the opinion as a quick overview.
Conclusion
Every employer is required to provide and maintain a safe and healthy workplace. To achieve this, a pro-active approach, involving responsible inspection and maintenance of electrical installations, machinery and appliances, is required which will identify and, as far as is reasonably possible, eliminate or mitigate hazards. The greater the potential hazard, the higher will be the standard of precautions required. An employer will not be able to hide behind his or her own ignorance or lack of expertise, especially when the necessary expertise is readily available elsewhere.
THE EMPLOYER'S LIABILITY FOR WORKPLACE ACCIDENTS
With special reference to Electrical Installations, Electrical Machinery & Electrical Appliances
THE EMPLOYER’S GENERAL DUTY OF CARE
1. The Occupational Health and Safety Act 85 of 1993 (‘OHSA’), and the various regulations issued under it, govern issues of workplace health and safety in South Africa. OHSA adds to, and in some cases clarifies, the common-law duty of care that has traditionally rested on employers.
2. The common-law duty has been expressed as follows:
“An employer owes a common law duty to [an employee] to take reasonable care for his safety. [An employer] is in the first place under a duty to see that his [employees] do not suffer through his personal negligence, such as failure to provide a proper and safe system of working and a failure to provide proper and suitable plant, if he knows or ought to have known of such a failure. If [an employee] is employed on work of a dangerous character, the employer is bound to take all reasonable precautions for the workman’s safety.
Van Deventer v Workmen’s Compensation Commissioner 1962 (4) SA 28 (T) at 31B-E
3. The same principles are found in statutory form in section 8(1) of OHSA:
“Every employer shall provide and maintain, as far as is reasonably practicable, a working environment that is safe and without risk to the health of his employees.”
4. These duties are not applicable only to employees; members of the public are protected by the provisions of section 9(1):
“Every employer shall conduct his undertaking in such a manner as to ensure, as far as is reasonably practicable, that persons other than those in his employment who may be directly affected by his activities are not thereby exposed to hazards to their health or safety.”
5. The notion of ‘safe’ is defined as “free from any hazard”. ‘Hazard’ in turn means a “source of or exposure to danger”. It is important to note how broad and wide-ranging these definitions are. Such broad definitions tend to place an onus on an employer – on whose premises an accident has occurred – to show that his workplace or machinery was safe, and it is difficult to imagine any workplace accident, other than those caused by employees themselves, or so-called ‘freak’ accidents, that could not arguably be traced back to a ‘source of danger’.
6. This consideration has a crucial bearing on the test applied by the courts in determining whether or not an employer has breached the duty of care. This is a two-stage test: firstly, the court decides whether or not the accident was caused by the employer’s act or omission. If so, the second stage applies: did the employer meet the required standard of care? If the accident could have been foreseen, and the employer failed to take reasonable steps to prevent it, then he will not have met the required standard of care and he will be liable.
7. The crucial point here is that it does not matter whether the employer actually foresaw the possibility of the accident occurring. The court will apply an objective, ‘reasonable person’ test: would a reasonable employer have foreseen it? If so, the employer in question should have foreseen it and he will be liable. It will not be a defence for him to say, however honestly, that he did not foresee such an accident.
8. It is clear from this that the Act expects employers to adopt a pro-active approach to health and safety. They are required to give careful consideration to potentially harmful materials, plant, equipment or processes in the workplaces, and to take reasonable steps to render these safe.
9. According to Thompson and Benjamin , “the greater the seriousness of the potential harm or the greater the probability of its occurrence, the greater will be the necessity for taking safety precautions.” Given that almost any electrical installation, machine or appliance is capable of causing fatal injury, the most thorough precautions will be required of employers whose workplaces contain such installations, appliances or machines.
See also Marshall v Gotham Co Ltd [1954] 1 All ER 937 (HC) at 942.
What Constitutes ‘Reasonable Precautions’?
10. As has been noted in paragraphs 3 and 4 above, the Act uses the phrase ‘reasonably practicable’ when setting out the steps that employers are required to take to ensure workplace health and safety. This phrase is defined in the Act as follows:
- “reasonably practicable” means practicable having regard to – the severity and scope of the hazard concerned;
- the state of knowledge reasonably available concerning the hazard or risk of any means of removing or mitigating that hazard or risk;
- the availability and suitability of means to remove or mitigate that hazard or risk; and
- the cost of removing or mitigating that hazard or risk in relation to the benefits derived therefrom;
C Thompson and P Benjamin South African Labour Law Vol 2, page G1-18. Juta and Co, Wetton.
12. It is clear from this that ‘reasonably practicable’ precautions in a workplace containing electrical plant would have to be of a much higher standard than they would need to be, for example, in a workplace where only hand-tools were used.
‘Plant’ is defined as including ‘fixtures, fittings, implements, equipment, tools and appliances, and anything which is used for any purpose in connection with such plant’. It is important to note that this refers not only to specialized equipment or equipment designed for specific manufacturing or production processes, but to everyday items found in almost any workplace, such as kettles, heaters, computers, portable power-tools and the like.
13. The ‘reasonably practicable’ standard applies to precautions in terms of the employer’s general duty and in terms of certain of the regulations relating to specific industries or workplaces. However, in some cases a higher standard is set; this is signified by the absence of the qualification ‘reasonably’. In essence this means that considerations such as inconvenience, cost and interference with rates of production, all of which would be relevant in assessing whether precautions were ‘reasonably practicable’ are not relevant – if it is practical to take a certain precaution, employers must take them.
See: Schwalb v H Fass & Son Limited (1946) 175 LT 345
Street v British Electricity Authority [1952] 2 QB 399, [1952] 1 All ER 679 CA
14. Among the specific regulations to which this higher standard applies are Electrical Machinery Regulations 3 and 5(1)(c), dealing respectively with work on disconnected machinery and aspects of the construction of premises housing switchgear and transformers.
The Need for Regular Inspection and Maintenance
15. As we have seen, the Act requires employers to be pro-active and to take steps to avoid workplace accidents. Proper maintenance is undoubtedly one of the most essential of such steps. According to Thompson and Benjamin, “[t]he requirement to maintain a safe and healthy workplace requires both an effective system for monitoring the state of the workplace and the correction of any shortcomings […] The extent and type of maintenance required will depend upon the nature of the manufacturing process, the substances used and the risks posed to the health and safety of employees.”
South African Labour Law Vol 2, page G1-20
16. Regular inspection by qualified personnel will be an important part of an effective monitoring system. Section 8(2)(d) of the Act requires employers to establish what hazards to employee health and safety exist in their workplaces. It will not be an acceptable defence in law for an employer to say that, due to ignorance or lack of expertise, he or she failed to identify or recognise such a hazard. Such an employer will be expected to make use of outside expertise.
17. It will also not be an acceptable defence on the part of the employer that he or she believed that a given appliance, machine or installation was safe. What matters is whether or not such a belief was reasonable and whether or not the employer took reasonable steps to test that belief.
See S v Meyer 1971 (4) SA 178 (R) at 183F-G
