In Das Kapital Karl Marx noted that in England the challenge of Health and Safety was not that there were no laws, but rather that there was a lack both of the will and the capacity to implement the laws.
Richard Spoor opened his presentation to the 22 Annual Labour Law Conference by making the comparison between this description of industrial England in the late 1800’s and South Africa today.
In workplaces there is a responsibility on employers to provide a safe environment. Common law is the absolute basis of this “duty of care”, and both the Occupational Health and Safety Act and the Mine Health and Safety Act give effect to this duty, but this is still vague, and regulations give additional specific content to the duty.
However, the legislation is meaningless without accountability, or the measures to give effect to the duty.
Why are we in this situation? It is up to the courts to interpret what would be “reasonable” and “practicable” and in South Africa we have a compensation system that prevents employers being sued in a civil court. Those who are injured and the relatives of those who have died, receive compensation. As a result, there haven’t been any cases to develop what these terms mean in practice in the workplace.
He compares our system with that of the United Kingdom, where if an employer violates a regulation, the employer is sued in a civil court and just the fact of the breach is enough to prove negligence. In South Africa, it is only the administrative powers of the inspectors and the criminal court that is involved – and he is not aware of any cases going to the criminal courts.
The biggest areas of concern are the iron and steel industry and the mining industry; Spoor quotes figures of 2 workers per thousand being killed per year and 8 per thousand being injured per year, and 6000 acquiring occupational diseases – such as noise-induced hearing loss and lung disease – a progressive, incurable disease.
He calculates that a mine workers working for 40 years have a 50% chance of suffering injury or death and that the iron and steel industry is not much lower.
He states that there is a “pervasive culture of non-compliance” – administrative fines don’t work and there have been no prosecutions.
A Presidential Audit concluded that it is not a lack of capacity, but rather of skills, and that better training is required. However, in comparison with the power of big business, government is weak.
How could this be changed? Spoor suggests through a system of civil justice. Similar to our labour law environment, the test in the civil court is “balance of probabilities” – compared to the criminal courts where is it “beyond reasonable doubt”.
An example of how the civil courts would develop guidelines and knowledge for health and safety can be seen in the development of traffic accident cases: terms such as “whiplash” and what constitutes “negligent driving” are now clearly known and understood, and expert witnesses can be called to testify in these cases.
Spoor suggests that the answer to employer non-compliance is not more laws – systems are now far too complex to regulate in fine detail. The answer lies in the using the civil courts.
Why is this important to us? We bear the social cost of the non-compliance. What is the social cost?
Take the example of a worker who contracts an occupational disease and is sick and disabled, and calculate: (I’ve used “his” because males are still the majority of mining and iron and steel workers)
• What is the value to his family of the wage that is lost for his life span?
• What is the cost of disability benefits funded by the state?
• What is the cost of healthcare provided by the state for the rest of his life?
• What is the cost to the children who cannot proceed to secondary or higher education?
• What is the loss to society of the economic contribution of those children as adults?
• What is the cost to the state in supporting those children as adults?
• What is the cost to society in families and children continuing to live in poverty?
• Multiply this individual figure by the number of other workers who contract occupational disease in a year. This is the social cost.
Additionally, given the inadequacies of the administration of the compensation system, workers are likely to have died before they receive compensation, and the systems are so complex, that they need specialists to assist them, reducing the ultimate payout to them.
Then consider the cost to the employer of implementing additional safety measures to prevent this scenario. This is the comparison to be made by a court in considering what would be reasonable.
Spoor says that there is no need to change the compensation system if a civil court jurisdiction is implemented – in other countries they co-exist.
Richard Spoor concludes: we have an unacceptable level of compliance with health and safety legislation; the criminal system has not worked and has not developed a definition of the “duty of care”; employers cannot be regulated by detailed regulations – systems are now far too complex; the civil courts are ideal to develop and give substance to the employer “duty of care”; employers will make rational decisions to avoid being sued in civil courts; accountability will be increased and greater justice achieved; and finally, there will be a reduction in the social cost – the cost to society, to all of us.