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1) Based on the information provided, is the company in breach of any Statutory Regulations?

As a consultant, hired by the Trinidad and Tobago Electricity Commission, to advise the company as to the possible criminal charge or civil law suits it may face as a result of the death of Mr. Ramkissoon, I have read the facts of the incident, and reviewed many legal cases. Using evidence provided to me by a newspaper article written by Carolyn Kissoon South Bureau on June 4th 2009, I have ascertained that possible breaches of statutory duty of the Occupational Safety and Health Act, 2004 may be inherent. According to the Occupational Safety and Health Act of 2004, Section 6 subsection (1) It shall be the duty of every employer to ensure, so far as is reasonably practicable, the safety, health and welfare at work of all his employees. In the case of Smith v Baker, Lord Hershelle said the contract between employer and employed involves on the part of the former the duty of taking reasonable care to provide proper appliances and to maintain them in a proper condition, and so to carry on his operations so as not to subject those employed by him to unnecessary risk. This case has set the benchmark for liability against employers and proves that an employer owes a personal duty of care to his employees. The Occupational Safety and Health Act of 2004, Section 6 subsection 2 (a) (b) (c)(d), the duty extends to the provision and maintenance of plant and safe systems of work, ensuring absence of risk in connection with use of machinery, the provision of personal protective equipment and also provision of information, instruction, training and supervision. In the case Wilsons and Clyde Coal Co. LTD v English, Lord Wright said that the duty of the employer to their

employees is a personal, non delegable duty. He also defined three areas of employer duties which included provision of a competent staff of men, provision of adequate materials and plan, provision of a proper system of work and effective supervision. Another area, in which T&TEC may be found in breach of the Occupational Safety and Health Act of 2004, is the dismissal of employees involved in the accident. According to section 76 subsections 1, no employer shall dismiss, suspend or otherwise adversely affect the employment of an employee or alter his position to his prejudice, by reason only that an inspector in exercise of his power under this act, sought or obtained from the employee information pertaining to the operation of the industrial establishment. In Young v. Hoffmann Manufacturing Co., Kennedy L.J. states that the employer vis--vis his employees undertakes (inter alia) (a) to use reasonable care in the selection of competent fellow-servant's; (b) in having and keeping his machinery, the use of which might otherwise be dangerous to the servant in his employment, in proper condition and free from defect. His rule is explained on the ground that the employee by his contract of employment agrees with his employer to assume the risk of his fellow-servant's negligence. It may be difficult in some cases to distinguish on the facts between the employers' failure to provide and maintain and the fellow-servants' negligence. In order for the company to be free of any breaches of statute, it must prove that the company did everything within the scope of the Occupational Safety and Health Act, 2004 especially with respect to the provision under duty of the employer towards their employees. It must also prove that the employees that were involved in the incident were negligent in their operations in order for their dismissal to be legal.

2) Is the company negligent because it allowed Mr. Ramkissoon to undertake such a dangerous assignment?

According to health and safety law negligence is conduct that falls below the standards of behaviour for the protection of others against unreasonable risk of harm. A person has acted negligently if he/she has departed from the conduct expected of a reasonably prudent person acting under similar circumstances. If it is found that Mr. Ramkissoon acted negligently the company would also be held accountable for his actions. An employee has a duty of care towards others which is a requirement under section 10 subsection (1)(a) of the Occupational Safety and Health Act, 2004 that a person take reasonable care for the safety and health of himself and of other persons who may be affected by his act or omissions at work. The Act also outlines in section 10 subsection (1) (d) to use correctly the personal protection clothing or devices provided for his use. Reports indicated that Mr. Ramkissoon was not wearing his security gloves which may be a breach in his duty, but according to the health and safety hierarchy of control measures, personal protective equipment is last on the list of mitigating measures and should only be used if all other methods are exhausted. Therefore the courts may overlook this breach, and prove that the company may in fact be negligent. In Speed v Thomas Swift and Co. LTD, Lord Green said the physical layout of the job, the sequence in which the work is to be carried out, the provision of notices and warnings, the issue of special instructions. An employer must take into account that workmen may have disregard for their own safety. This means that they must minimize the danger of a workmans own

carelessness and take reasonable care to ensure that employees comply with necessary safety precautions. In the case of Hook v Square D LTD, the court says that circumstances that needs to be taken into account includes: The place where the employee is to carry out his work, the nature of the sight in question, the nature of the work to be carried out by the employee, his experience, the degree of control that the employer can exercise in the circumstances, the employers own knowledge of the premises. From my own experience as a Health and safety practitioner it is said that it is not up to a workman to provide safety precautions, it is the duty of the employer to consider the situation, devise a suitable system, to provide suitable instruction and training for employees.

3) Did the company do all that it could to ensure his safety?

Mr. Ramkissoon died as a result of the machinery he was being hoisted in, coming into contact with high voltage electrical wires. Whether the company did all it could have done to ensure the safety and health of the deceased is a matter of whether the other employees including the foreman were doing his /her job. There are too many unknown variables to decide whether the company should be held totally liable or whether they had done everything to their best ability. The courts will have to decide, I have chosen to examine the possibilities. In most cases that resemble this one for example, R v Nelson Group Services (Maintenance) Ltd, the court said It is not necessary for the adequate protection of the public that the employer should be held criminally liable even for an isolated act of negligence by an employee performing the work. Such persons are themselves liable to criminal sanctions under the Act and under the Regulations. Moreover it is a sufficient obligation to place on the employer in order to protect the public to require the employer to show that everything reasonably practicable has been done to see that a person doing the work has the appropriate skill and instruction, has had laid down for him safe systems for doing the work, has been subject to adequate supervision and has been provided with safe plant and equipment for the proper performance of the work. Failures in the system of work had resulted in an obvious risk of danger to employees; that risk included the risk of a fatal accident such as the death of Mr. Ramkissoon. The question may arise whether Mr. Ramkissoon had contributed to the failure in the system whether or not it will disprove liability of the employer. According to the Act section 10 subsections (1) (d) It shall be the duty of every employee while at work to use correctly the personal protection clothing or devices provided for his use. Whether this breach in statutory duty will constitute the cause of

the accident, taking into consideration the type of work being carried out, the question still remains whether or not the company has done everything to ensure his safety. My personal view is that the company will still be held accountable.

4) Should those workers who lied in their report be prosecuted?

Reports say that three employees, a driver, foreman and linesman were sent home last week, after investigators found inaccuracies in their statements. Inconsistency in the reports brings a lot of arguments into this sensitive topic, but is that the reason they were fired. Questions may arise in the field of criminal law. Should they be brought to answer the charge of manslaughter is a possibility that may arise, but for now I will look at it through the eyes of a health and safety perspective. The only piece of legislation pertaining to prosecution of a person relating to this case is Section 47 subsection (1) of the Occupational Safety and Health Act, 2004, preservation of scene. Where a person is killed or sustains a critical injury at an industrial establishment, no person shall, except for the purpose of saving a life, maintaining an essential public utility or preventing unnecessary damage to equipment or other property, interfere with, disturb, destroy or carry away any wreckage, article or thing at the scene of or connected with the occurrence until permission so to do is given by the inspector. The employees may also be prosecuted under section 10 of the Occupational Safety and Health Act, 2004, where they may be found guilty for breaches in their duty as employees. The Occupational Safety and Health Act, 2004 section 10 subsection (1) (a) to take reasonable care for the safety and health of himself and of other persons who may be affected by his acts or omissions at work. Also Section 10 subsection (2) An employee who wilfully and without reasonable cause does anything which results in the death or critical injury to another person at work, commits an offense and is liable to a fine of ten thousand dollars. If any of the employees are found within the range of any of these offenses after investigation they should be prosecuted.