14.12.16

How Bosses Mitigate Workplace Injuries

Jahmar Clarke
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How Bosses Mitigate Workplace Injuries

An employer may be liable for injuries caused to a worker even where it was the worker himself, or another co-worker who was negligent and caused the accident. This flows from the employer’s duty to provide a safe system of work, which includes protecting the worker from his own carelessness.

Employer’s liability is a subset of the tort of negligence. The employer’s liability for negligence in respect of injury suffered by any of his employees during the course of the employee’s duty comes in two parts:

  1. The employer owes a duty of care to each employee and may be weighed, measured and found wanting (that is to say he may be required to compensate his employee) if that duty is breached; and
  2. The employer may also be found wanting for breach of the duty of care that his worker owes his fellow workers.

The duty of care owed to an employee is not necessarily discharged by the employee’s carelessness. In fact, the law has developed to the point where it recognises that employees often don’t take the necessary precautions for their own safety.
In 2015, the Supreme Court of Jamaica awarded a worker $6M against his employers for their failure to provide a safe place of work when his hand got stuck in a machine and he lost 4 fingers. He was working on a bag juice making machine in a factory when his fingers got crushed. He used his hand to clear an obstruction in the machine. The worker said he was allowed to use his hands on occasions to fix the bags when they got stuck in the machine. The Court found that the employer failed to provide proper or adequate training and there was poor implementation of safety procedures. The concept of a safe system of work is not restricted to providing proper functioning equipment, it extends to providing adequate training and supervision of employees where that is necessary for a safe working environment.

Become the Consummate Employer

There are certain dangers that may present themselves on a daily basis and the consummate employer’s job is to mitigate against these risks. The consummate employer is the rudder on the boat, the mitochondrion in the cell, the fuel that combusts in the pistons to propel his business forward. He is hated and loved and is often times called “boss”. The purpose of the consummate employer’s business is not only to make a profit, and as the “boss” there are several challenges he may face on the road to wealth creation, not the least of which are lawsuits. Lawyers are the gatekeepers for the consummate employer’s business, particularly businesses with a large workforce, industries that involve construction, factory work, manufacturing of goods and the production of chemicals.

As the consummate employer your duty is to provide a safe place of work and a safe system of working with effective supervision. The consummate employer has a duty to institute a system, whether through notices, reminders, training sessions or warnings to ensure the use of the equipment. The consummate employer should take steps to eradicate obviously dangerous practices, such as clearing foreign objects from a bag juice making machine. He takes into account the fact that his workers may be careless as to their own safety and organizes a system of work which reduces the risk of injury from the workmen’s foreseeable carelessness.

The consummate employer will also need to protect his employees from each other. That may include instituting disciplinary sanctions against an employee who is known to be a bully, fond of practical jokes, or is in other respects a danger to his fellow workers. The consummate employer will discharge his duty to his employees in fine style and if called upon to answer questions of liability will dispatch with alacrity any notions of negligence on his part like a boss!. Be the consummate employer.

Jahmar Clarke is an Associate at Myers, Fletcher & Gordon and is a member of the firm’s Litigation Department. Jahmar may be contacted via jahmar.clarke@mfg.com.jm or www.myersfletcher.com. This article is for general information purposes only and does not constitute legal advice.