Seminar 9

Health and Safety at Work

The Workplace Safety and Health Act

• Prior Legislation - Factories Act – since 1958. • Current Legislation - WSHA – since

2006.• Since September 2011, all

workplaces are covered, other than domestic premises.

The Workplace Safety and Health Act

• More persons owe duties under the WSHA as compared to the former Factories Act and these include:

Occupiers (section 11)Employers (section 12)Employees (section 15)Manufacturers/Suppliers of certain types

of machinery (section 16)

WSHA - Liability• WSHA only creates criminal liability; ie: it does not

create civil liability.

• If the injured person wants to institute a civil claim, he has to either (a) or (b) .

• Unlike the former Factories Act which only had very specific duties, under the WSHA, there is a also a more general duty (to take reasonably practicable measures). Is this better?

• Unlike under the former Factories Act, now liability can be based on risk alone without there being any accident. Is this better?

R v Board of Trustees of Science Museum

• The board of trustees of a museum were charged with an offence when health and safety inspectors found a certain bacteria which could cause a rare form of pneumonia, in the water of the air-cooling system.

• The prosecution did not prove that the bacteria had actually escaped from the air-cooling system.

• Nonetheless the court held that there was a risk that it could and that was sufficient to impose liability.

WSHA - Liability• In relation to criminal liability:Can contributory negligence or recklessness of

an employee be a defence?Can delegation of duty be a defence?

Contributory Negligence

Delegation of Duty

Civil - Negligence

Criminal - WHSA

Occupier• Who is an occupier? In relation to factories – this refers to the person who

has the registration certificate/factory permit. In relation to other premises – this refers to the

person who is in charge, management or control of those premises.

• Under section 11, the occupier has the duty to take reasonably practicable measures.

• In deciding whether reasonably practicable measures have been taken, may have to balance with .

• Duty is owed to all persons (ie: need not be his employees).

- eg: accident occurs to a NUS employee using a fast food outlet at NUS - who could be liable?

R v Lightwater Valley Ltd

• An accident occurred in a fair ground due to the lack of care on the part of the appellant company.

• The appellant company was held criminally liable for the injuries suffered by 3 members of the public who had used a particular device interestingly known as the “Hell Slide”.

Employer

• Under section 12 the employer has a duty to take reasonably practicable measures.• This duty is owed to his

employees and others affected by his undertaking.

Employee

• Under section 15, among other things, an employee can be criminally liable if:

If he acted willfully or negligently and thereby endangered the safety and health of himself or others or

failed to use protective equipment provided etc.-

WSHA – Other Matters• Under the WSHA, some prescribed workplaces

may have to have safety officers/committees/etc and MOM may require these companies to send their officers for training courses.

• Also note: the Commissioner has the power to issue remedial/stop orders in relation to breaches of the WSHA.

• Breach of such an order is also an offence.

WSHA – Other Matters• There are increased penalties (up to $0.5m) for

a contravention of the WSHA compared to a contravention of the Factories Act.

• Also note: if company is criminally liable, officer in charge could also be criminally liable (section 48(1)) if he did not exercise due diligence.

• Note also: two are more people can be responsible for the same accident/risk.

Work Injury Compensation• Applies to all employees except some, such as members of the

Singapore Armed Forces, Police Force and Domestic Maids. • Once covered, does it matter whether the employee is a

foreigner or a part-timer? • Compensation payable irrespective of fault on the part of the

employer.- Eg: drunk driver knocks into delivery man who is delivering and

injures him – can the delivery man claim WIC from his employer?

• What if the employee dies? Who can claim compensation?• Employers must take out compulsory insurance.- Failure to do so is an offence. - But there is a wide exception: need not have insurance if

employee is earning more than $1600 - unless he is a workman. • Employers cannot contract out of liability to pay WIC.

For there to be liability under WIC:

• For there to be liability:• (1) Under section 3, there must be

personal injury by accident (ie: something unexpected) “arising out of” and in the “course of employment” or• (2) Under section 4, there must be

an occupational disease.

Section 3• “Arising out of “ : means there must be a

link between the accident and the employment

- eg: van driver meets with a traffic accident.• What if the accident is due to natural

causes?• What if an employee is injured during an

assault?• What if an employee slips and falls in the

office because the floor is wet?

NTUC Income Insurance v Next of Kin of Narayasamy

• The employee was a coach driver.• He was helping cabin crew load luggage into

the coach.• Suddenly he felt breathless and was rushed to

the hospital where he died.• Can his estate claim – WIC – ie is there a link?

Re Narasmah Dec’d

• Employee was working in a plantation.• She was struck by lightning.• Could she claim WIC – ie was there a

link?

Section 3• “In the course of employment”:

means must have occurred within the scope or sphere of employment. • Eg: van driver takes his family out for

supper after duty and meets with a traffic accident.• But note: the term “course of

employment” has been interpreted widely by cases.

Weaver v Tredegar“ A man’s work does not consist solely in the

task which he is employed to perform; it includes also matters incidental to that task. Times during which meals are taken, moments during which the man is proceeding towards his work from some portion of the employer’s premises to another, and periods of rest may all be included”.

Are these “in the course of employment ”?

• (a) Travelling to work.• (b) Going for a meal within the workplace.• (c) Going for a meal outside the workplace.• (d) Resting at home after work.• (e) Resting in a hotel during an overseas

business-trip.

Section 4• Under section 4(1), if an employee catches certain

occupational diseases (listed in the 2nd Schedule to WICA) in the course of certain jobs or within certain time frames after leaving those jobs, he may also be able to claim WIC.

Section 4

• Further, under section 4(1A), even if a disease is not listed in the 2nd Schedule to the WICA, the employee may still be able to claim if the disease is directly attributable to an exposure, arising out of and in the course of employment, to a chemical or biological agent.

Defences• No liability if accident occurred because of

influence of alcohol or drugs.

• No liability for personal injury arising out of deliberate acts. It is also an offence to make a claim in such an instance.

• But note: still liable even if employee is careless or reckless. Why is this so?

Notice and Claim

• Generally claim must be brought within 1 year.

• Can either get work injury compensation or go to court and sue for negligence.

• Cannot seek both remedies.

WIC versus NEGLIGENCE• Maximum No Maximum• Current medical expenses: limit No limit• Future medical expenses: cannot Can claim • Pain and suffering: cannot claim Can claim • Time Limit: 1 year 3 years

• Lawyers: Less likely to be involved More likely• Process: Less costly More costly• Employer: Need not be at fault Must be at fault

Amount of WIC Payable

• For death or permanent total disability: it is the loss of monthly earnings multiplied by an appropriate factor based on age of employee. • However, there is a limit of $170,000 in

the case of death and $218,000 in the case of permanent total disability.

EXAMPLE:

An employee aged 20 died in an accident arising out of and in the course of employment.

How much WIC can his dependants get assuming his monthly salary is:

(a)$1000(b)$2000

Amount of WIC Payable

• If permanent partial disability : it is a slightly different formula but this too cannot exceed $218,000.• Note difference between

permanent “total” and permanent “partial” disability.

Amount of WIC Payable• If temporary disability: - 14 days paid sick leave if not hospitalized,- 60 days if hospitalized. • Further, if disability continues after that; can still

claim compensation amounting to: - 2/3s of monthly salary for 1 year or - until disability ends, whichever is earlier.• Eg: if hospitalized for 80 working days and returns

to work after that, how much can the employee claim?

Medical Expenses• If employee is injured in the course of work, employer

must send him for medical examination and bear medical expenses including hospitalisation expenses.

• However, there is a limit:- It is either the cost involved for 1 year after the accident

or $30,000 per accident, whichever is lower. • Eg: $29,000 (2013); $4000 (2014). How much medical expenses can be claimed assuming

the accident occurred right at the beginning of 2013.

Injury at Work

Civil

Negligence WIC

Criminal

WSHA

Summary• WSHA covers certain premises. Employers operating in

those premises, have a duty to take reasonable measures to ensure the safety of employees and others.

• Breach of the WSHA creates only criminal liability and not civil liability.

• In addition to the employer, others such as employees could also be criminally liable under the WSHA in certain circumstances.

• Where injury results at work, Work Injury Compensation may be payable, if certain conditions are satisfied.

• The employee concerned can either claim Work Injury Compensation or sue in negligence. He can’t claim both and get double compensation.

Readings:

• Basic Text: (7.4-7.5, 7.21-7.22, 7.26-7.27, 7.28, 7.44-7.45, 7.54-7.57, 7.62, 7.66, 7.69, 7.71, 7.75, 7.77, 7.79, 7.103, 7.114-7.124, 7.131-7.132, 7.141-7.150, 7.161, 7.164, 7.166, 7.169-7.172, 7.183, 7.201-7.202, 7.230-7.231,7.235-7.237, 7.241, 7.247-7.248).