Question:

A was employed with B as a labourer in January 2014, and while so employed, he fell from a moving trailer attached to a tractor being driven by a servant/agent of the B and died. At the time the tractor drove at speed over a hump in the road; the deceased fell off the trailer onto the ground. A later succumbed to his injuries. A's relative claimed that B, its servants/agents breached the duty of care which it owed A thereby causing his death.

Discuss in detail B's liability under the following heads:

1. The common and statutory law as it relates to B's liability;

2. The requirement by A's representative to show that B's action has fallen short of

the standard of care required of a prudent and reasonable employer.

3. The specific statutory duties imposed on an employer under the Occupational

Safety and Health Act, Chapter 88:08, ("the OSHA").

LAWS OF TRINIDAD AND TOBAGO 78 Chap. 88:08 Occupational Safety and Health

PART VIII NOTIFICATION AND INVESTIGATION OF ACCIDENTS AND OCCUPATIONAL DISEASES 46.

(1) Where an accident which causes death or critical injury occurs

(a) in an industrial establishment, the occupier; or

(b) in the course of employment, the employer,

shall inform the Chief Inspector of the accident forthwith by telephone, facsimile, e-mail or other direct means and shall send a written notice of the accident, in the prescribed form and accompanied by the prescribed particulars, to the Chief Inspector within forty-eight hours of his learning of the accident.

(2) Where an incident which may be prejudicial to the safety or health of the public, or which has the potential of causing critical injury, including fire, explosion or the release of toxic substances, occurs in an industrial establishment, the occupier shall inform the Chief Inspector of the incident forthwith by telephone, facsimile or e-mail and shall send a written notice of the incident to the Chief Inspector within forty-eight hours of his learning of the incident.

(3) Where an accident resulting in critical injury occurs and death follows the notification of the accident, a further notice in writing of the death shall be sent to the Chief Inspector by the employer within forty-eight hours of his learning of the death.

(4) Where the occupier is not the employer of a person who is killed or seriously injured in an industrial establishment, it shall be the duty of the employer, as soon as he becomes aware of the accident to report it to the occupier, and if he fails to do so, he commits an offence and is liable, on summary conviction, to a fine of ten thousand dollars and to imprisonment for three months.

(5) Every occupier and every employer shall keep a register of each accident, incident or death reported to the Chief Inspector under subsections (1), (2) and (3) and each entry into the register shall be kept for not less than five years.

46A. Where an accident causes injury to a person at a workplace whereby the person is unable to perform his usual work or requires medical attention, and such occurrence does not cause death or critical injury leading to disability, the employer shall give notice in the prescribed form within four days of the occurrence, to the Chief Inspector, containing information and particulars of the accident.

47. (1) Where a person is killed or sustains a critical injury at an industrial establishment, no person shall, except for the purpose of

(a) saving life or relieving human suffering;

(b) maintaining an essential public utility service or a public transportation system; or

(c) preventing unnecessary damage to equipment or other property, interfere with, disturb, destroy, alter or carry away any wreckage, article or thing at the scene of or connected with the occurrence until permission so to do has been given by an inspector.

(2) A person who contravenes subsection (1) commits an offence and is liable, on summary conviction, to a fine of five thousand dollars and to imprisonment for three months.

48. (1) Where a medical practitioner who, having attended to a patient, forms the opinion that the patient is suffering from an occupational disease contracted in any industrial establishment or in the course of his employment, he shall within forty-eight hours of having formed that opinion send to the Chief Medical Officer a notice stating the disease from which the medical practitioner is of the opinion that the patient is suffering and the industrial establishment in which the patient is and was last employed.

(2) The Chief Medical Officer shall send forthwith to the Chief Inspector any notice that he receives under subsection (1).

(3) If an employer is advised by or on behalf of an employee that the employee suffers from a disease referred to in Schedule 1, he shall give notice in writing to the Chief Inspector within four days of being so advised.

(4) Where a notice is sent to the Chief Inspector under this section, he shall arrange, within two weeks of having received the notice, for a medical inspector to investigate and submit to him a report on the case of occupational disease referred to in the notice within two weeks.

(5) The Chief Inspector, upon receiving the report referred to in subsection (4), shall conduct the necessary enquiries.

(6) Every employer who contravenes subsection (3) commits an offence and is liable on summary conviction to a fine of five thousand dollars and to imprisonment for three months.

(7) Every medical practitioner who contravenes subsection (1) commits an offence and is liable, on summary conviction, to a fine of five thousand dollars, and to imprisonment for three months if it is proven that he ought reasonably to have formed the opinion that the patient was suffering from an occupational disease contracted in an industrial establishment or in the course of his employment.

49. Where a District Medical Officer has reason to believe that a death is caused by an accident in an industrial establishment or in the course of employment or by occupational disease, he shall arrange for an autopsy to be conducted in respect of such death and shall forward, within twenty-one days of the death, a copy of the results of the autopsy to the Chief Medical Officer, who shall forward forthwith to the Chief Inspector a statement as to the cause of death.

50. (1) Where a coroner holds an inquest on the body of a person whose death may have been caused by accident or disease of which notice is required by this Act to be given, the coroner shall, at least forty-eight hours before holding an inquest, send to the Chief Inspector a notice in writing of the time and place of holding the inquest.

(2) Where an inspector is not present to witness the proceedings of an inquest, the coroner may adjourn the inquest and shall, at least four days before holding the adjourned inquest, send to the Chief Inspector notice in writing of the time and place of holding the adjourned inquest, but the coroner may, before the adjournment, take evidence to identify the body and order the interment thereof.

(3) Subject to the power of the coroner at an inquest referred to in this section to disallow a question, which in his opinion is not relevant, or is otherwise not a proper question, the following persons shall be entitled to examine a witness either in person or through an Attorney-at-law or an agent:

(a) an inspector;

(b) a relative of the person in respect of whose death the inquest is being held;

(c) the employer of the person in respect of whose death the inquest is being held;

(d) the occupier of the industrial establishment in which the accident occurred or the disease is alleged to have been contracted;

(e) a person appointed in writing by

(i) a trade union, friendly society or other association to which the deceased at the time of his death belonged; and

(ii) an association of employers of which the occupier or employer is a member.

(4) Where at an inquest at which an inspector is not present, evidence is given of neglect as having caused or contributed to the accident or disease, or of a defect in or about the industrial establishment appearing to the coroner to require a remedy, the coroner shall send to the Chief Inspector notice in writing of the neglect or defect, as the case may be.

(5) In this section, "inspector" includes a medical inspector.

51. Where the Minister is of the opinion that any accident occurring or any case of occupational disease contracted or suspected to have been contracted in an industrial establishment is a matter of public interest, he may so advise the President who may cause an enquiry to be held, in accordance with the Commissions of Enquiry Act, into such accident or case of industrial disease and its causes and circumstances.

52. (1) The Chief Medical Officer shall arrange for a medical inspector to investigate and submit to him a report

(a) on such cases of death or critical injury occurring in an industrial establishment or in the course of employment as the Chief Inspector may refer to the Chief Medical Officer; and

(b) on any other matter that the Minister may direct.

(2) The Chief Medical Officer shall forward a copy of a report made under

(a) subsection (1)(a) to the Chief Inspector; or

(b) subsection (1)(b) to the Minister.