The Health and Safety Laws in the USA - Assignment Example

The Health and Safety Laws in the USA Introduction The Health and Safety laws are mainly related to product liability. These laws also impose responsibilities on employers in respect of health and safety of the persons employed, involving criminal and civil liabilities. These laws seek to reform the product liability and the liability of the employer which extend beyond traditional contract law and negligence law. However, the traditional contract law and negligence law play an important role in dealing with the obligations and liabilities arising out of normal transactions in a society. The questions raised herein have been considered under the Health and Safety laws as well as the contract or negligence law and common law as the case may be. Question 1 Consultation Paper on Civil Liability for Unsafe Products presented by The Law Reform Commission of Hong Kong, Product Liability sub-committee (1998) under 2.10 states, “Provided the consumer has a direct contractual nexus with the seller, the consumer is entitled to damages if the other party has broken an express or implied term of the contract.” In the present case though the assurance of Edward, “rich people from the PRC had a plan to purchase classical oil paintings from Hong Kong in the near future for resale in the PRC” was not included in the agreement, it is implied that the oil painting is of merchantable quality. According to section 11(2) of the Control of Exemption Clauses Ordnance even the liability for breach of implied condition of merchantable quality cannot be excluded or restricted by a contract term. Edward further said that there would be a very great demand for this particular classical oil painting owned by him and thus an appreciation of at least three times in value within 6 months. Eventually no rich people from the PRC purchased the classical oil painting. The classical oil painting in fact depreciated in value. Therefore, there is a case for liability for breach of implied condition of merchantable quality. Also, Edward has induced Fred to buy the oil painting through his assurance and forecast which could be construed as negligence in giving assurance or forecasting appreciation in the value of the oil paintings. In addition to the implied condition of merchantable quality, the Control of Exemption Clauses Ordinance (Cap. 71) also deals with liability in tort for negligence. Under Section 2(1), since “negligence” means the breach of (a) of any obligation, arising from the express or implied terms of a contract, to take reasonable care or exercise reasonable skill in the performance of the contract; (b) of any common law duty to take reasonable care or exercise reasonable skill (but not any stricter duty). Therefore, it can be construed that Edward had been under obligation to take reasonable care or exercise reasonable skill but had not performed the common law duty by not taking reasonable care while making the assurance or exercising reasonable skill in valuing the oil paint. In Donoghue v Stevenson (1932) Justice the product liability as a different type of tort was established. The judgment was not strictly based on negligence but related to the "implied warranty of fitness of a product". It is relevant in the present question as the question is related to the fitness of the product for resale as claimed by Edward. In Hedley Byrne & Co Ltd v Heller & Partners Ltd (1964) relating to loss arose due to negligent misrepresentation, it was held “if someone possessing special skill undertakes, quite irrespective of contract, to apply that skill for the assistance of another person who relies upon such skill, a duty of care will arise.” In view of the above legal position, Fred can take action against Edward. Question 2 Civil product liability law in Hong Kong is covered under the common law of contract and the law of negligence. The Sale of Goods Ordnance is complimentary to The Contract Laws and the provisions relating to the Contract Laws are also applicable to sale of goods. The important elements of the contract such as offer and acceptance, legally enforceable agreement, mutual consent, free consent and consideration are applicable to the Sale of Goods as well. In this case it appears that there was a valid offer followed by acceptance. The consideration involved in the transaction is related to the market value of the car. There are the essential elements for a valid contract involved in this transaction. The prior use of the car for delivering goods every day for his boss by John does not alter the position. It is further confirmed by the fact that Steven likes the color and low mileage of the van. He also told John he did not care what the car had been used for before. Therefore, the use of car for some other purpose prior to sale was not a determinant factor in entering into the contract. According to the Section 37 under Chapter 26 of the Sale of Goods Ordnance which is largely in line with the English laws, the buyer is deemed to have accepted the goods when he intimates to the seller that he has accepted them, or when the goods have been delivered to him, and he does any act in relation to them which is inconsistent with the ownership of the seller, or when after the lapse of a reasonable time, he retains the goods without intimating to the seller that he has rejected them. In Perkins v Bell [1893] 1 QB 193 CA it was held that the buyer had the right to reject until the goods have been delivered to him. The buyer in this case had a reasonable opportunity of examining the car, indicated his acceptance by taking delivery and acted in relation to the car which is inconsistent with the ownership of the seller and retained the goods without intimating to the seller that he had rejected them. The ‘lapse of a reasonable time’ depends upon the circumstances of the case and viewed in the context. Though the timeline of the events are not given, the circumstances indicate that this point is also either not favourable to Stevens or weak in the context. Also, it is important to note that under Section 55(1) of Chapter 26 of Sale of Goods Ordnance, where there is a breach of warranty by the seller, or where the buyer elects, or is compelled, to treat any breach of a condition on the part of the seller as a breach of warranty, the buyer is not, by reason only of such breach of warranty, entitled to reject the goods, but to other remedies. According to the legal position of the case Steven cannot cancel the contract and get his money back. Question 3 (a) It is clearly stated that when Sam (the Driver) was driving his van with David’s stuff, he drove carelessly and hit C. In the absence of contractual relationship between ‘C’ and the others in this case, he can seek remedy in tort for compensation. The onus is on the claimant to prove negligence by establishing that the defendant owed a duty of care to him. In Caparo Industries plc v Dickman (1990) it was held, “What emerges is that, in addition to the foreseeability of damage, necessary ingredients in any situation giving rise to a duty of care are that there should exist ... a relationship characterised by the law as one of ‘proximity’ or ‘neighbourhood’ and that the situation should be one in which the court considers it fair, just and reasonable that the law should impose a duty of a given scope on the one party for the benefit of the other.” This case introduced a 'threefold test' for a duty of care. Harm must be (1) reasonably foreseeable (2) there must be a relationship of proximity between the plaintiff and defendant and (3) it must be 'fair, just and reasonable' to impose liability. However, it is important to note that the discretion of the court plays a crucial role in determining whether the act is reasonably foreseeable or what is fair, just and reasonable which vary from case to case. Under the doctrine of res ipsa loquitur, duty of care or breach thereof can be inferred from the nature of the incident. In Scott v London and St Katherine Docks Co. (1865) it was held “There must be reasonable evidence of negligence. But where the thing is shown to be under the management of the defendant or his servants, and the accident is such as in the ordinary course of things does not happen if those who have the management use proper care, it affords reasonable evidence, in the absence of explanation by the defendants, that the accident arose from want of care.” Sam is not the owner of a car but is driving the car at the time of the accident. He can be construed as an ‘agent’ of the owner or ‘principal’ Shing Kee. The principal can be held responsible for the actions of their agent under 'vicarious liability'. The drivers have a duty of care. But, the drivers are not insured for the third party damages caused due to accidents. However, the owners are required to take third party insurance that cover their drivers for damages caused by them. Based on the analysis of the case, it can be concluded that ‘C’ can prefer the claim for damages against Shing Kee rather than on the driver. (b) This case is similar to 3(a). The terms of agreement between Peter (the “Driver”) and David (the “Owner”) do not alter the Agent – Principal relationship, and David is nevertheless owner of the mini bus. The responsibility of making payment towards repair costs by Peter if the car is damaged while he drives is largely an internal arrangement, which he can insist on this case and recover the same from Peter. However, the responsibility of the principal to the third party ‘C’ cannot be absolved. Though “C” may be able to sue either the Driver or the Owner for the damages suffered by him, a case against the owner will be more prudent as discussed under 3(a). (c) In car accidents, it is the owner who pays for the damages and not the drivers generally. If a child drove father’s car and met with an accident, claim for damages are made on father. While lending the car to another person common sense calls for judgment with regard to the ability of the persons to handle the car with proper care. It is always difficult to pinpoint the responsibility in such cases. Here C can sue either A or B or both. It should be viewed from the insurance angle also. The drivers usually don’t have car insurance. Technically speaking “C” can only sue the driver “A” who caused the accident unless he can prove that the “B” was negligent in allowing “A” to use her vehicle. There are so many reasons which could have caused the accident; the driver might have been under the influence of alcohol, the driver was a learner or reckless by nature and so on. C can sue either A, the Driver or B the owner based on the circumstances available and insurance angle. Questions 4 Responsibilities imposed on contractors by Regulation 2 of the Construction Sites/ (Safety) Regulations The regulation 2 of the Construction Sites (Safety) Regulations specifically contains clauses relating to the responsibilities of the contractors and sub-contractors in the construction business. The following important facts of the case need to be analyzed with reference to the responsibilities of the contractor and/or the sub-contractor. 1. Two construction workers of the main contractor of a site suffered injuries in a high voltage electric shock when they were trying to fix a crane. The maintenance worker was temporarily blinded- and is now scarred permanently –and both he and an electrician were burned. 2. Two other men of subcontractor working on the job also have suffered burns as a result. 3. All four could easily have been killed. General Duties and responsibilities The general duties under Factories and Industrial Undertakings Ordnance, Chapter 59 apply to industrial undertakings which cover construction sites also. This ordinance imposes regulations with regard to safety and health of the employees at industrial undertakings for providing and maintaining plant and work systems that do not endanger safety or health; ensuring safety and health in connection with the use, handling, storage or transport of plant or substances; providing all necessary information, instruction, training, and supervision for ensuring safety and health; providing and maintaining safe access to and egress from the workplaces; providing and maintaining a safe and healthy work environment.  The persons employed should take care for the safety and health of themselves and other persons at the workplace; and using any equipment or following any system or work practices provided by the proprietor.  In the present case, it is explicitly stated that the persons involved had not received adequate training or been given sufficient information about the electricity supplies to the cranes. Also, the risk was attributed to lack of procedures in place to ensure that the electrical work was carried out safely. Therefore, the employer can’t take shelter under this clause which calls for care for safety and health on the part of the persons employed by them. According to Regulation 2(1) a of the Construction Sites (Safety) Regulations, the contractor is required to appoint “competent examiner” with necessary qualifications, training and experience to the carrying out of any test and examination required and the contractor needs to ensure that the duty is carried out by a competent person by reason of substantial training and practical experience to perform the duty. Regulation 38A and 38AA specifies the duties of contractor and other contractors responsible for construction site to ensure safety of places of work. Regulation 47 specifies the procedures to be followed where there is use of electricity on construction sites. It is very important for the contractors/sub-contractors to follow the standard procedures in the construction sites in respect of occupational safety as specified in the regulations. With reference to ‘Precaution for Apparatus Utilizing High Voltage’ Fan and Yim (22) stated “Where necessary as a precaution against electrical hazard all apparatus operating at high voltage, shall have placed and displayed in a visible position at, on or near such apparatus a notice in red characters and letters each not less than 50mm high on a white background reading “危險－高壓電力 DANGER HIGH VOLTAGE”. It is also stated that “A crane, is erected, or dismantled, or altered, should be under the supervision of a competent person.” In this case it is clearly stated that, 1. None of the men had received adequate training or been given sufficient information about the electricity supplies to the cranes. 2. All four workers were put at risk because their employer did not have procedures in place to ensure electrical work was carried out safely. Responsibilities of the parties involved For the purpose of this regulation 2 of the Construction Sites (Safety) Regulations, "subcontractor" (次承建商) means a person employed by a contractor to perform construction work under a contract for services. In this case, two other men of subcontractor working on the job also have suffered burns as a result. Though the liability in the case of subcontractor to some extent depends upon the agreement between the contractor and subcontractor, it could be inferred from the statement of the facts of the case that precautions were supposed to have been taken by the contractor in compliance with the regulations, since these precautions were applicable to the people working under subcontractor as well. There is use of electricity in the job, but the employer has clearly failed to comply with the procedures in accordance with the Regulation 47 as required in this respect. According to Fan and Yim (2008) in establishing the safety management system, evaluation, selection and control of sub-contractors, it should be ensured that sub-contractors are fully aware of their safety obligations and are in fact meeting them. Under Regulation 2 of Chapter 59I, ‘CONSTRUCTION SITES (SAFETY) REGULATIONS’ (a) a contractor is responsible for a construction site if he is undertaking construction work there or, where there is more than one contractor undertaking construction work at the site, if he is the principal contractor undertaking work there; (b) a contractor is responsible for any plant referred to in these regulations if it is located at a construction site for which he is responsible; unless he is exempted by certificate in writing by the Commissioner under his hand, from that requirement in the case of that class or description Liability under regulations The contractors or sub-contractors as the case may be are liable under Regulation 68, ‘Offences and penalties relating to contractors.’ As per Regulation 69, any contractor or workman engaged in construction work who wilfully and without reasonable cause does anything likely to endanger him-self or others shall be guilty of an offence and shall be liable on conviction to a fine of $50000. Code of Practice – Safety and Health at Work in Confined Spaces Occupational Safety and Health Branch, Labour Department (2000) stated “This Code of Practice has a special legal status. Although failure to observe any provision of the Code of Practice is not itself an offence, that failure may be taken by a court in criminal proceedings as a relevant factor in determining whether or not a person has breached the relevant safety and health legislation under the Factories and Industrial Undertakings Ordinance.” Code of practice aims to provide guidance to the employers or the contractors in an industrial undertaking or contract works for ensuring safety and health of the persons employed by them. These guidelines are not exhaustive to cover all the legal aspects in respect of safety and health regulations for the operation in confined spaces. Therefore, these guidelines are not intended to provide relief to the employers from their statutory responsibilities. These guidelines enable the contractors to follow the best management practices for ensuring safety and health of the persons employed by them. According to the code of practice “It is the duty of the proprietor or contractor responsible for a confined space to ensure that every operation in the confined space is safe and without risk to the personnel working inside, or in the vicinity of, the space… A safe system of work should be established by the proprietor or contractor responsible for the space for every operation in a confined space.” It could be observed that the employer has wide responsibilities with regard to safety and health of the persons employed in an industrial undertaking or construction place. The employer is required to follow not only the procedures as specified by the regulations to meet these objectives, but also the best management practices in tune with the circumstances available under the work environment which may vary from case to case. In order to ensure safety and health of the persons and to effectively follow the regulations in this respect, the employees need to be trained by the employer. Only through proper training given to persons employed, the employer can elicit their complete cooperation in achieving the objectives of ensuring safety and health of the persons in a work place. The accidents involved in this case are fatal and could have caused death of all the four persons. The severity of the injuries caused by the incident suggests complete lack of system in the operations. One or more of the persons could be inexperienced, unqualified or lacking expertise in the work undertaken. It appears that the contractor had not verified the credentials and the experience of the persons employed by the subcontractor. It could be inferred that the contractor had also failed to provide adequate training to all the four persons employed in their job. If the employees of the contractor were experienced and trained, they would be able to manage the employees of the subcontractors effectively and avoided accident of this nature. Therefore, the contractor becomes squarely liable for action under the law. Following the code of practice will be an important factor in determining the liability under safety and health legislations and the Factories and Industrial Undertakings Ordinance in criminal proceedings by the court of law. Common law The obligations and responsibilities of the contractors and sub-contractors in the construction business are also largely covered under employment laws. In Hong Kong the precedents, the earlier judgments in Hong Kong and the English Court cases play an important role in deciding the cases by the courts. Also, the discretion of the court plays a crucial role in determining the liability to the employer or contractor.The principle laid in Winter v Cardiff Rural District Council, with regard to direction and system needs to be considered with regard to the responsibilities of the contractors. In line with this principle, in Li Moon Chai v Leung Shu Man it was held employers owe a duty to exercise reasonable care for ensuring the system of working provided to the employees was safe. In this case it was adjudged that the two defendants were equally liable for the injury caused to the plaintiff and the award included compensation for PSLA (Pain, Suffering & Loss of Amenities), Loss of further earning capacity and Medical expenses. In Morris v. Breaveglen Ltd. (1993) it was held that at the time of accident the Dumper Truck was being used by the plaintiff vicariously on behalf of his employers, the defendants, notwithstanding that the defendants did not have control over it. With regard to breach of statutory duty, citing the Construction (Lifting Operations) Regulations 1961, Griffiths L.J. observed “that that was no reason why the duty should not also lie upon the owner when the machine was being operated by his workmen.” Compliance with the regulations not only avoids accidents but mitigates the liability of the contractor. In Rainfield Design & Associates Ltd v Siu Chi Moon (2000) it was held “the purpose of the regulations is clearly to provide for the safety of workmen and the primary responsibility for this must rest with the contractor responsible for the site. On the assumption that there can be a contracting out, very clear words would be needed to exclude the contractor from civil liability for breach of any of the regulations.” Even if the safety measures set out requires the subcontractor to provide safety equipments and warnings, the contractor is still responsible for health and safety of the persons employed and he is not relived of the liability for breach of the regulations on the site. The contractor in this case is liable for breach of statutory duty imposed on him by the regulations under Occupational Safety and Health Ordinance and Factories and Industrial Undertakings Ordinance and their subsidiary Regulations (criminal responsibilities /liabilities) and also the civil liabilities under common law. References Caparo Industries plc v Dickman, [1990]2 WLR 605 Donoghue v Stevenson (1932) [1932] UKHL 100 Linda C.N. Fan & Yim, K.P. Construction Management and Civil Engineering Practice in Hong Kong. Association of Engineering Professionals in Society Ltd. 2008. Web. 30 January 2013. Government of Hong Kong. Chapter 71, CONTROL OF EXEMPTION CLAUSES ORDINANCE, 30/06/1997. Web. 30 January 2013. Government of Hong Kong. Chapter 591 Construction Sites (Safety) Regulations. 30/06/1997. Web. 29 January 2013. Government of Hong Kong, Occupational Safety and Health Branch, Labour Department. Code of Practice: Safety and Health at Work in Confined Spaces, 2000. Web. 30 January 2013. Hedley Byrne & Co Ltd v Heller & Partners Ltd (1964) [1964] AC 465 Li Moon Chai v Leung Shu Man (2008), Case No. HCPI48 Morris v. Breaveglen Ltd. (1993) IRLR 350 Rainfield Design & Associates Ltd v Siu Chi Moon (2000) Part 3 Case 11 [CFA] Scott v London and St Katherine Docks Co. (1865) 3 H&C 596. The Law Reform Commission of Hong Kong, Consultation Paper on Civil Liability for Unsafe Products, 1998. Web. 31 January 2013. Winter v Cardiff Rural District Council, [1950] 1 All ER 819 Read More