Legal Liability, Safety Files and Return on Investment

2014-07-17 10:26

There seem to be a practice amongst construction companies to approve the health & safety file of all and every single person working on a construction site, regardless of who they are. Besides the fact that there is firstly no legal basis for the “File Approval Syndrome”, there is also no legal liability in certain instances.

At a recent site survey, a contractor was appointed by a telecommunications company to install RF equipment on a rooftop of a building that is “under construction”. The construction company refused the contractor access unless they approve the H&S File of the contractor. This raised a few questions regarding the extent to which people are prepared to go to “mark their territory” and worst of all, in this case, the person wanting to approve the file is not a H&S registered practitioner, but a construction manager. Whilst he may work off a checklist provided by his “Agent”, and approve the file, there is surely a lot of reasons why the “rejection” of this particular file would come into play when a project of a totally different business are being delayed and financial losses incurred.

Firstly, the contractor for the telecoms company, works on a different H&S specification, using tools and equipment of a technical nature unknown to a builder. Their staff has competencies no builder would have, but also not have the builder’s required competencies as the work is of a totally different nature.

Whilst most H&S practitioners would retort by saying it is part of their “good corporate governance” the basis of “rejecting” a file that has no relevance to the project it itself reflects “Poor understanding” of good corporate governance.

This is just another example where the paperwork dominates our perception of “elf ‘n safety” and we lose focus of what the legal requirements actually expect of us.

Section 37(2) of the OHSAct places a principal in vicarious liability for the acts and omissions of his mandataries (Agents, contractors and other business representatives acting on behalf of the principal). This first and foremost means that there has to be a “legal connection” or “nexis” between the two parties. When Company A, works on the same site as Company B, both for different principals (clients), there is no legal connection between them, and Section 37(2) would not apply.

However, both company A and B, will have the duty to protect each other from harm in terms of Section 9(1) of the Act which states that “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 ‘(Other contractors not working under the same agreements and the public)’ who may be directly affected by his activities are not thereby exposed to hazards to their health or safety.

So, Company A should protect Company B from hazards caused by Company A’s activities. And vice versa.

The “approval” of the H&S file of company A by company B, will not protect company B in any manner. Company B will not be held liable for the acts and omissions of company A, but well of his own.

What these two companies should have done is to determine what company A is to do on the site where company B is also working, and then both should provide a safe working environment to their own employees and of the other’s. This could be in the form of “barricading and restriction of movement, organising the workflow, assigning responsibility for mutual protection etc. But contracting File Approval Syndrome will not solve the issues both parties may face.

Both parties should include the movement and activities of the other in their own risk assessments and developed a safe work procedure for both to adhere to.

Health & Safety professionals should be called in to resolve and design these issues around their companies’ own liabilities because of the activities of others.

In essence this practice can be compared with a road builder asking every motorist and pedestrian to sign a 37(2) agreement and undergo induction prior to entering the “workzone”. No? There is no legal connection (contract) between the road builder and a motorist or pedestrian. But the road builder remains responsible for the safety of the motorist whilst passing through the work zone in terms of Section 9(1).

Practises such as these serves only to affirm the lack of understanding of the H&S laws and obligations and what used to be ascribed to the H&S profession, has now spilled over to the construction professionals too.

Section 332(5) of the Criminal Procedures Act of 1977 states that “when an offence has been committed, whether by the performance of any act or by the failure to perform any act, for which any corporate body is or was liable to prosecution, any person who was, at the time of the commission of the offence, a director or servant of the corporate body shall be deemed to be guilty of the said offence, unless it is proved that he did not take part in the commission of the offence and that he could not have prevented it, and shall be liable to prosecution therefor, either jointly with the corporate body or apart therefrom, and shall on conviction be personally liable to punishment therefor”.

Directors and servants should thus be aware of the “acts” of their employees to ensure compliance with laws that do not apply and “omissions” that expose them to prosecution under section 9(1).

In the case above, the client of Company A opted to find an alternative tenant for their installation, resulting in a loss of 10 year rental income agreement for the client of company B. All in the name of protecting company B.

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