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Control of risk falls on employer


Cecil McCarthy

Control of risk falls on employer

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THE MODERN REGIME for health and safety at the workplace in Britain is based on the Health And Safety At Work Act 1974.
Their system with some modifications along the way has been in place for almost 40 years. It has been well accepted that the record for both health and safety has been one of the best in the world.  
It is, therefore, not surprising that the provisions and the language of the Safety And Health At Work Act 2005 of Barbados should reflect a lot of the substance of the English legislation.
For example, the wide reach of the legislation is an evident similarity. But there are noticeable differences and the act must be read in order to fully grasp its specific import.
One good thing is that sufficient of the language of the legislation is retained that the English precedents will be of considerable assistance in interpreting it.
Like the English legislation it does appear to me that ours is based on the fundamental principle that those responsible for creating risk are best positioned to control that risk whether as employer, manufacturer, occupier, self-employed or otherwise.
Our legislation defines an occupier as “the person who has control over a workplace”. Workplace is defined as “any place where persons work or are employed, including a factory but does not include a private household where persons work or are employed only in domestic service”.
The general duties of employers to their employees are set out mainly in sections 6(5) and 6(6) of the act.
Section 6(5) provides that “it shall be the duty of every occupier to ensure, so far as reasonably practical, the health and safety at work of all his employees”.
Section 6(6) provides that the duty in 6(5) shall extend to and “include in particular
(a) the provision and maintenance of plant and systems of work that are, so far as is reasonably practicable, safe and without risks to health;
(b) arrangements for ensuring, so far as is reasonably practicable, safety and the absence of risks to health in connection with the use, handling, storage and transport of articles and substances;
(c) the provision of such information, instruction, training and supervision as is necessary to ensure, so far as reasonably practicable, the health and safety at work of employees;
(d) so far as reasonably practicable as regards any place of work, the maintenance of it in a condition that is safe and without risks to health and the provision of and maintenance of means of access to and egress from it that are safe and without such risks;
(e) the provision and maintenance of a working environment for employees that is, so far as reasonably practicable, safe, without risks to health, and adequate as regards facilities and arrangements for their welfare at work; and
(f) ensuring that the workplace, workspaces and procedures meet prescribed ergonomic standards”.
In the English Court of Appeal case of Edwards v National Coal Board [1949] Lord Asquith said:
“Reasonably practicable” is a narrower term than “physically possible” and seems to me to imply that a computation must be made by the owner in which the quantum of risk is placed on one scale and the sacrifice involved in the measures necessary for averting the risk (whether in money, time or trouble ) is placed in the other, and that, if it be shown that there is a gross disproportion between them – the risk being insignificant in relation to the sacrifice – the defendants discharge the onus on them.”
A breach of the provisions of the Safety And Health At Work Act 2005 will be a criminal offence. On occasion the interpretation of the above expression will be significant, especially for defendants who will bear the burden of proof where their defence is that it is not reasonably practicable to act otherwise.
• Cecil McCarthy is a Queen’s Counsel. Send your letters to: Everyday Law, Nation House, Fontabelle, St Michael. Send your email to [email protected]

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