OSHA imposes strict liability on an employer who is in breach of duty and standard of care. The onus for escaping liability rests on the employer. OHSA aims to protect not only employees, but also third parties and the public.
Ilana Joubert ( Applicant) sought leave to amend pleadings in proceedings instituted against Buscor Proprietary Limited (Respondent). The Applicant claimed for compensation for damages following the death of her husband (the deceased) who was employed as an electrician by a close corporation which was in turn contracted by the Respondent to carry out electrical repairs and maintenance of equipment. The Respondent instructed and/or permitted the deceased to enter a submersible pump with limited oxygen and hazardous chemicals, resulting in the deceased’s injury and subsequent death.
The Court considered whether the Applicant was excluded from instituting a claim against the employer in terms of the Occupational Health and Safety Act, 85 of 1993 (OHSA); whether OHSA imposes strict liability on the employer and whether the Applicant may institute a common law claim for breach of duty of care simultaneously with a claim based on the breach of OHSA, pleaded in the alternative.
The Court held that OHSA was enacted for the protection of employees, third parties and the public. That the deceased was not an employee of the Respondent is not tenable. This interpretation would lead to absurdity, in that third parties and general members of the public would be precluded from instituting civil claims for work-related health and safety injuries against an employer. The right of the deceased to claim against the Respondent in this regard, is not limited, save where the Applicant is barred from a claim in terms of the Compensation of Occupational Injury and Diseases Act, 130 of 1993.
The Court held that OHSA does not indicate that the codification of the duties preclude or limit a common law remedy. Both actions can be pleaded in the alternative. The proceedings had not reached an advanced stage to the extent that the Respondent would be prejudiced. Thus, the allegation of prejudice ensuing on the part of the defendant is unfounded.
The Court further held that Section 9 of OHSA not only imposes a duty of care on the employer but also provides for the standard of care. Liability arises from the foreseeable risk inherent in the employer’s hazardous activity and operations, as well as conduct falling below the standard of care in relation to the nature of the activity and operations. The Respondent failed to prove the absence of negligence and establish that reasonable measures were taken to avoid harm. Thus, the employer was strictly liable for the injury and death of the deceased.
Counsel for Applicants
Andy Bester SC