I have been an expert witness to the court focusing on the Occupational Health and Safety Act (OHSA) and it’s regulations for the past 8 years. Most employers and employees believe that nothing ever happens to anybody who does not comply with the act, because these cases are not really in the mainstream medias interest. That is why I would like to enlighten you through this blog on my own experience through analysing the statistics of the cases I have been involved in.
I have not been privy to see all the claim values, however what I do have access to is the claimed value of 11 injuries which exceeded R17,000,000 and 1 financial dispute based on health and safety valued at R18,000,000.
The following stats are from 18 court cases involving 27 injuries and 1 financial dispute.
OHSA compliance of the business depicted:
Of the 18 cases only 3 Businesses had a risk assessment which means 78% of the businesses do not comply with section 8 and 9 of the OHSA. The risk assessment is the backbone of any Health and Safety management system and through the risk assessment one understands the business activities, the risks exposure and how to reduce or control the risk exposure by implementing control measures.
Of the 18 cases, 10 Businesses did have some precautionary measure or control identified and documented. So even though the businesses did not necessarily do a risk assessment they still implemented precautions and it is my conclusion that these businesses were made aware of the legal requirement (regulations is mostly controls written into legislation to protect people) but don’t really understand why as they did not do the risk assessment.
Where precautionary measures have been identified it is normally documented in some format, hence the reason why the documented systems were available in 10 of these cases.
Of the 18 cases only 2 could provide a full HSE documented and sufficiently implemented Management System to control the HSE risks and OHSA compliance. One of the cases was the R18,000,000 financial loss case. We have successfully shown the Plaintiff did implement the OHSA and they won the case with cost.
The risks which were not controlled by the businesses which resulted in incidents causing injuries are everyday risks we find in most businesses. I did not reconstruct all the incidents to identify every cause but only looked at a few of the immediate causes. These incidents could have been avoided.
Cost comparison:
Estimated Elint management system implementation & 12 month monitoring = R92 425
Claim value - finger amputation = R1 820 000
Should the business in question have implemented a management system through Elint and used the software to monitor the compliance the cost saving would have been 95% and if the incident did happen the court will rule that the business applied the the the business applied the “reasonably practicable” principle.
The argument that the Public Liability Insurance or COID will protect the business is invalid as the insurance companies will not pay if the business did not comply with OHSA and COID will only cover an employee, where most of these claims are either from the public or a contractor who got injured.
Compliance with the OHSA is critical to any business and if applied as an integrated management system it will improve the business processes, protect people from injuries and the business against financial claims.