Legal Liability and the Manufacturer: The duty to inform

Jaco Swartz

24 October 2012

Duties of the Employer

“”Health and Safety Legislation may be seen as the sum of written obligations placed on those involved in mining and industrial activities”

The Employer shall….

Defining the employer:

MHS Act:

Employer = Owner

Duties of the Employer

MHS Act:

Section 5

As far as reasonably practicable, every employer must provide and maintain a working environment that is safe and without risk to the health of employees.

Includes responsibilities for equipment and infrastructure, including plant for the conveyance of minerals.

RECONSTRUCTION

-photograph removed-

Reasonably practicable

reasonably practicable means practicable having regard to-

(a) the severity and scope of the hazard or risk concerned;

(b) the state of knowledge reasonably available concerning that hazard or risk and of any means of removing or mitigating that hazard or risk;

(c) the availability and suitability of means to remove or mitigate that hazard or risk; and

(d) the cost of removing or mitigating that hazard or risk in relation to the benefits deriving therefrom;

Defining the manufacturer

Not defined in Section 102

Section 21, includes reference to: (one installation may have multiple manufacturers)

1. Designers,

2. Manufacturers,

3. Performance of repair work

4. Importers

5. Suppliers

6. Erectors

7. Installers

Duties of the manufacturer

21. Manufacturer's and supplier's duty for health and safety

(1) Any person who -(a) designs, manufactures, repairs, imports or supplies any article for use

at a mine must ensure, as far as reasonably practicable –

(i) that the article is safe and without risk to health and safety when used properly; and

(ii) that it complies with all the requirements in terms of this Act;

(b) erects or installs any article for use at a mine must ensure, as far as reasonably practicable, that nothing about the manner in which it is erected or installed makes it unsafe or creates a risk to health and safety when used properly;

Manufacturer: duties summary

1. Comply with all legal prescriptions, i.e. Statute, Regulations and incorporated standards

2. Duty to inform – “when used properly” – implies knowledge of end use.

3. Communicate risk through risk assessments, procedures

Duty to inform

….State of knowledge reasonably available….(Section 102)

Implies obligation on Employer to obtain information

In conjunction with Manufacturers duty to inform

Duty to inform

Examples of aspects affected:

MHSA Regs, Chapter 8 (Machinery)

Reg. 8.8(2)(d)..proper operating or safety procedures

Reg. 8.8(3)(b)..fully aware of risks attached to moving of machinery

Reg. 8.8(3)(g)..written lock out procedure

Reg. 8.8(9)(10)..written procedure on belt splicing

The price of non compliance

Section 92 MHSA, failure to comply with Sections:

Section 21, manufacturer duties:

R 500 000, and/or 5 years imprisonment

Section 11, risk assessment

R 1 000 000, and/or 5 years imprisonment

Section 86, …any person…through negligent act or omission

Causes serious injury or illness… or

Endangers health and safety…commits an offence

In case of negligent death – Culpable Homicide

Conclusion

1. Establish the baseline in terms of design

2. Manufacturers have a legal obligation to inform

3. Can you prove that you enable the employer to comply? (knowledge reasonably available)

4. Common law test: Reasonable designer, manufacturer, supplier, installer/erector

5. Tool for employer: align procurement practices.

QUESTIONS:

Jaco SwartzManaging Director

Legislative Compliance Specialists (Pty.) Ltd.

jacos@legalcs.co.za

011 704 4814082 898 9463