Employer’s health and safety obligations at the workplace

In its judgement, delivered on the 19 October 2021 in the names of Mario Galea vs. Malta Freeport Terminals Limited and John Aquilina, the First Hall of the Civil Court, presided over by Mr. Justice Toni Abela, considered the employer’s responsibility to provide a safe working environment for its workers following an incident which occurred at the Malta Freeport Terminal.

The facts of the case were as follows:

The claimant worked as a tally clerk at the Malta Freeport Terminals Limited, the defendant company. On the morning of the 26 December 2015, at the Malta Freeport Terminal, the co-defendant Mr. Aquilina, who worked as a port worker driving a tug master at the Freeport, was pulling a trailer to unload a container on one of the ships at the Terminal.  To execute this task, Mr. Aquilina had to drive the trailer on the carriageway closest to the cabin where the claimant was stationed. Tug masters are prohibited from passing through this specific space due to the narrow area and potential risk due to the closeness of the cabin where the tally clerk is stationed. In this instance, however, all other carriageways were obstructed, and Mr. Aquilina drove the trailer through this space. Despite the existing regulations, this was a common occurrence when all the carriageways were blocked. Upon driving the trailer through this space, the tug master near Mr. Aquilina’s trailer started its engines and caused Mr. Aquilina to react and steer off course. This resulted in the trailer hitting the hydraulic box in front of the cabin, which dragged into the cabin at the bottom of a crane where the claimant was stationed. The claimant suffered serious injuries which consequently led to a permanent disability.

The legal position

The primary legal issue raised in this case was the concern of health and safety at the workplace. The court held that it is in everyone’s interest to look out for the safety and wellbeing of the employees whilst at the workplace. There are special and general rules that apply to the safety of the workplace, where the general rules apply to all persons while the specific rules only apply in specific circumstances. Article 1037 of the Civil Code (Cap. 16) holds that whoever employs a worker must answer for the acts of their workers, insofar as the worker does not follow the instructions or precautions forewarned by the employer, or unless the employee causes an accident of his own volition. The employer must therefore create a safe environment which minimises any sort of danger as much as possible.

The Court’s considerations

Both defendants pleaded to the court that they were the wrong party being accused of this incident. The defendant company pleaded that they could not be held responsible for the incident which resulted from the negligence of its driver. Mr. Aquilina, on the other hand, pleaded for the observance of justice, since he too is an employee of the company who was carrying out the duties of his employment in the company’s workplace, and who also allegedly suffered injuries from the incident. Mr. Aquilina pleaded there was no legal connection between the claimant and himself.

In order to determine responsibility, one must determine whether the workplace is under the control of the employer.  The court felt that in this case, the employer is indeed responsible to control the worksite and ensure that no danger is present before sending workers there. Subsequently, the defendant company was the correct defendant to answer for these claims. It is the responsibility of the employer to evaluate the risk and eliminate any possible danger present on site, and as a result, cannot expose their workers to any form of risk. The court made reference to referred to “Bugeja vs Montanaro Gauci”, decided on the 14 May 2004, which held that the creation of a safe place of work is the employer’s responsibility to diminish all chances of any accidents occurring whilst at work. This principle was also seen in the case “Mayor Scicluna v. TN Waterproofing Ltd”, decided by the First Hall Civil Court on the 20 April 2007.

The court also referred to Article 6 of the Occupational Health and Safety Authority Act (Chapter 424 of the laws of Malta), wherein it is stated that it is the employer’s duty to prove that the incident occurred despite doing everything expected of it by law to reduce any risk of danger occurring to its employees at the workplace. Article 7 of the same Act states that these obligations should not affect the principles of responsibility of those who employ individuals. The court found that the defendant company did not prove this.

The court made further reference to Regulation 16 of Subsidiary Legislation 424.15, which specifically relates to the facts of this case. This Regulation provides that the employer shall take the necessary steps to ensure traffic routes are safe and free from obstruction. Furthermore, the employer must ensure traffic routes are clearly marked and unobstructed at all times. From the evidence gathered, the court felt that this was a rule much less followed than adhered to, since on the day of the incident all carriageways were blocked, and such blockage occurs on a regular basis. It is the employer company that is obliged to ensure no obstructions occur on the carriageway, and that this is not a regular occurrence. The court further felt that the defendant company made no effort to comply with Regulation 16 sub-regulation (5) to ensure a safe distance was kept and no obstructions were present. This had become common practice at the worksite as a result of this carriageway often being the only pathway unobstructed for the trailers to pass through, and no attempt was made by the defendant company to stop this bad practice. The court felt that this was the wrong attitude by the employer and goes against the spirit of the law.

The court went on to comment that floor markings were not enough to meet the rules and requirements stipulated by law for health and safety implementation at this workplace, since they do not contribute to eliminating or minimising risk to stop any incidents from occurring.  Furthermore, the defendant company did not provide adequate supervision to care for the safety of its workers, as it did not employ more than two safety officers onsite. This type of work comes with the important obligation for the employer to actively do all that is possible to ensure regulations are followed, and failure to do so should be punished as this increases exposure to danger. The obligation of surveillance and presence of health officials lies with the employer.

The Court’s decision

The court determined that Mr. Aquilina carried out the actions in question not because of negligence or imprudence, but due to the fact that he had no alternative to do otherwise. The company cannot possibly be justified in trying to shed its responsibility to ensure safety for its workers, especially in dangerous situations.

In reaching its conclusion, the court accepted the pleas of Mr. Aquilina and rejected the defendant company’s pleas. Consequently, the court found the defendant company solely responsible for the incident in question and awarded damages in the amount of €36,008.94 to the claimant.

This report was first published by the Malta Independent.