Men down

It is indeed a miracle that the accident did not result in death or worse injuries and for this we must be thankful. Nonetheless, any accident of this magnitude would result in trauma for both the injured and those who witnessed it and there would be some workers who might be fearful in climbing to heights even if the integrity of the scaffolding is assured. Let me wish all the injured workers a speedy recovery and may they return to a semblance of normalcy in the shortest possible time.

Until now, we as a country have been extremely lucky to have embarked on major construction projects over the past 30 years virtually devoid of any significant loss of man hours or accidents in developing the Pt Lisas industrial estate with the many chemical and industrial plants, the LNG plants in Pt Fortin and all the other building complexes and infrastructural works throughout the country.

This is not the experience that normally attends construction works worldwide, and worse yet in developing countries when the incidence is likely to be higher. Clearly, we must recognise that development and construction works present higher levels of risk and accidents will occur inspite of the best efforts. It is Murphy’s Law ! This is why insurance plays a key role as it is the mechanism that permits development to take place and to step in when things go wrong.

At the present time, the information about this accident is what has been reported in the media and it is still too early to come to any judgment as it would require a full scale investigation to determine the cause of failure of the scaffolding. Insurance companies would surely have an interest as they ultimately would have to settle claims and the situation is quite complex as there are many diverse interests involved — the main contractors, sub-contractors and may even include some third parties.

While at the time of writing there is no specific knowledge of the insurances that are in place, it would be reasonable to expect that for a project of this size, the contractors would be required to effect an insurance policy to the full extent of the contract price together with public liability to third parties who have a legitimate right to be on the site.

Surely, both the main contractors as well as the sub-contractors will have a responsibility towards their workers at common law and in accordance with the Workmen’s Compensation Act and therefore they ought to have workmen’s compensation insurance coverage in place as required by law. Therefore, all the workers who were injured would be entitled to compensation in accordance with the Act : 2/3 of weekly wages for the duration of their disability up to a maximum of four years. For those who have been deemed partially disabled there is a formula for computing their claims. While these benefits (workmen’s compensation) are payable on the basis of no-fault, the wider issue of liability and who is ultimately responsible on the basis of negligence will have to be determined after a thorough investigation.

Workers always have a right at common law to sue for damages as they have a legitimate expectation that they will have a safe place of work and if there is a negligent party then they can receive settlements at common law although monies received under Workmen’s Compensation would be taken into account.

When an accident of this nature happens, there is a need to understand the rights and responsibilities of all the parties concerned and the legal position can be quite complex. The adequacy of the design of the scaffolding will have to be taken into account as well as the sub-contractor who erected it and whether it was properly used — its weight bearing capacity was not exceeded. Let’s hope that the insurance coverage does not run out as this accident could be quite costly.

There is a hue and cry especially from labour leaders that OSHA is the solution for all accidents at work. That is simply not true! What OSHA does is to put into law many of the common law standards of duty of care to its workers, risk assessment of premises, emergency evacuation plans while impose fines and penalties for offences for contravention of the Act, and giving the worker the right to refuse to work where there is a reason to believe that he could be injured. It means therefore that employers who might not be safety conscious will now have to address workers’ safety and to provide safety gear where the nature of their work can put them in danger of injury. Matters of safety boots, hard hats and gloves are now common place and harnesses when working at heights so that employees who do not conform could also not be allowed on site.

What is not told is that OSHA places responsibilities on workers as well. It is not a one-way street! Workers are required to take reasonable care for their own safety as well as to their fellow worker, and importantly, they must not be under the influence of an intoxicant as to endanger their own safety or that of any other person. A worker who wilfully does anything that result in the death or critical injury to another person at work commits an offence and is liable in accordance with the Offences Against the Persons Act.

There is no doubt that over time OSHA can have a profound effect in the work place in that employers and workers will be sensitised in ensuring good safety practices and ultimately lead to safer working conditions. We, as a people do not have a culture of safety, one only has to look at the way we use or misuse the roads and prefer not to wear seat belts. Workers find it uncomfortable to wear harnesses or hard hats and would still argue with the security when they are denied access to the work site when they turn up to work without these accessories. This accident is a wake-up call to begin fostering a culture of safety.