Protection in the case of Injuries at Work

by Damien Degiorgio

Occupational injuries are a public health problem, estimated to annually cost the life of more than 300,000 workers globally and to cause several more cases of disability. In the not so distant past these occurrences were not protected by law and an injured worker was left to rue his fortunes, very possibly unable to earn a living for himself and his family as a result of his injuries and consequent disability.

Naturally such a position is not tenable in a civilised society and the workers’ rights in this respect have evolved dramatically, establishing stringent burdens on employers to provide a safe place and system of work.

In the Maltese legal system workers’ safety is mainly regulated by the Occupational Health and Safety Authority Act, Chapter 424 of the Laws of Malta, (‘the Act’) and its subsidiary legislation which is largely influenced by EU legislation and which is interpreted by our courts as establishing a high degree of accountability on the employer who is deemed, in virtue of the provisions of the Act, to have a contractual obligation to provide a safe system/place of work (Min ihaddem ghandu jinzamm responsabbli meta ma jiehux hsieb li jipprovdi ambjent li jassikura s-sahha tal-bniedem u jrid ukoll jipprevedi u jipprovdi ghall-fatt li l-haddiem ghandu tendenza li jittraskura r-riskji inerenti fix-xoghol tieghu…(1606/1995).The employee is hence entitled to seek redress from his employer in the case of injuries incurred during the execution of his duties for the employer. This redress may consist in the institution of criminal proceedings against the employer for the failure to provide a safe place of work and in civil proceedings for the payment of damages incurred by the employee as a result of the accident.Recent jurisprudence may be interpreted as having established a trend whereby the mere occurrence of an occupational accident, irrespective of whether this occurs within the employer?s premises or not, so long as the employees are acting on behalf of their employer, is deemed to be an indication in itself that the place of work was not sufficiently safe, unless the employer provides clear evidence indicating otherwise. (..Illum it-tendenza ricenti tal-Qrati taghna, issa msahha ukoll minn legislazzjoni iktar moderna u konsonanti maz-zmienijiet hija li hemm kwazi presunzjoni lli ncident industrijali jigri ghax ma kienx hemm a safe system of work. (1473/2002).This position may be regarded as a departure from the ordinary position in contentious cases whereby he who alleges a shortcoming must prove that it is attributable to the defendant. Obviously this presumption is based on the fact that the employee has not contributed, by lack of due diligence, to the events which have given rise to his injury and that the employee has acted cautiously and that he has abided by the relative safety procedures established by the employer.

Naturally the employer is granted the possibility of exonerating itself from responsibility if he can prove that the employee has in fact contributed, at least partly to the accident, by for instance not making full use of the safety equipment provided by the employer, by not abiding by reasonable procedures relative to the task at hand or by proving that indeed the accident was inevitable notwithstanding adherence to accepted standards of care.

It is indeed in the employee’s interest that the employer be afforded the opportunity of exonerating himself from responsibility as this offers an important incentive for the employer to ensure that the employee is provided with the proper training, the proper equipment and the proper practices to minimise the possibilities of an accident on the work place. It may in fact be argued that a strict liability approach against the employer, whereby an employer is always deemed at fault in the case of an occupational injury, would have negative effects on the way certain employers approach their employees’ safety, given that no matter how hard they might try to protect their workers, they would nonetheless be deemed to be responsible should an accident in fact occur.

Hence the current approach, whereby each case is dealt with on its own merits and our courts are empowered to consider the evidence brought before them and to decide whether the employer is in fact responsible for the injury sustained by his employee, offers an ideal platform to ensure that the system does not merely concentrate on forms of redress in the case of accidents but also an incentive for the establishment of preventive measures which should be given priority over remedial measures.


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