Is there an 800 pound Gorilla on your project?

Peter Broadhurst discusses the implementation of appropriate safety systems for worksite operators as a means of reducing the risk of accidents and in turn, liability in the event of an accident. Peter wishes to acknowledge the assistance of Kyle Broadhurst and Terry Caudeiron of the firm who have considerable experience in personal injury matters including industrial accidents and have spent many hours of their professional time in dealing with work related to injuries and compensation. If you have any queries about the article then please click here for Peter’s contact details.

Introduction

One of the most important factors in any construction project is safety. Millions of dollars in compensation for injured workers is paid every year. While it is not possible to eliminate the risk of an accident from any job site it is possible to significantly reduce the chance of an accident while at the same time reducing the potential liability in the event of one.

Too often safety in the workplace is observed in the abstinence; supervisors are overworked, not adequately trained and not sufficiently motivated to make sure safe work procedures are being carried out. Owners are trying to cut costs wherever they can and are not enthused about having the bid go higher because of adequate insurance coverage for the work site. Contractors are trying to trim every dollar they can.

Many contractors with the best of intentions find that they simply cannot obtain adequate coverage from their insurance brokers. Many do not bother as they employ foreign workers and in the event of an injury, the worker finds himself in a foreign land without money or employment and medical bills, which must be covered. The only solution in many instances is for the worker to go home. Many workers are working illegally, being picked up on a corner in the morning, trucked to a work site, paid cash and taken back to the corner at the end of the day. An injury to this transient is covered up or ignored.

No one can afford to ignore safety

Despite the fact that many jurisdictions have worker compensation programs, in the Caribbean these programs often offer little assistance to a severely injured worker and offer little to no protection to his employer from a potential claim. The difficulty with these compensation programs is that they often do not provide realistic compensation for injuries that have been sustained. When compared to the recovery that can be obtained from legal proceedings it is often a simple choice for the injured worker to elect to bring proceedings rather than rely upon workman’s compensation, which would not adequately compensate him.

Reducing Risk

So how does one reduce the risk of accident while limiting one’s exposure to claims? The answer varies depending on the project itself and your involvement with it.

If you are an owner, who has contracted with a third party to be responsible for all aspects of construction, then it is imperative that both contractually, and in reality, you are in no way seen to be operating, managing or supervising the workplace. In addition, you will need appropriate indemnities in place with respect to all foreseeable risks. Further you will want to be dealing with a contractor who maintains appropriate and adequate insurance. The limits of what appropriate and adequate might be are the subject matter of judicial decisions and one needs to remain current on the present state of the law in this area.

If you are a builder or an owner who is operating, managing or supervising the workplace there are a number of steps you can take to both reduce the risk of accident, and limit your exposure in the event of a claim.

The first, and perhaps the most important, step is to realize that safety cannot be relegated to an afterthought. In the past it was not uncommon for injured workers to be offered a modest payment with the hope that they would accept this sum in the face of not being able to work. Darker still, sometimes foreign workers would be simply released with the hope that they would return home and be unable to bring a claim. Given the increasing value of claims, representation for workers will increase and as a result employers will lose the ability to sweep claims under the rug.

The proactive workplace operator will be familiar with the statutory provisions in his jurisdiction. Most jurisdictions will have provisions that require safety equipment (such as safety hats, safety glasses, clothing and appliances) to be provided and maintained on site. Persons charged with this obligation would be well advised to have a program in place which allows them to track the issuance of equipment, make replacement equipment readily available to all workers (to the knowledge of the workers), and finally, to regularly check to see that workers are in fact using the safety equipment provided.

A Safe System of Work

Simply providing safety equipment will not be enough however. It is necessary for the workplace operator to have put in place a safe system of work. A safe system of work can be broken down into three major headings:

1. Safety training and education

Regular safety briefings should be frequent fixture on the calendar of any workplace operator. This should be supplemented with a comprehensive written safety policy. The workplace operator would be well advised to maintain a record of attendance at safety briefings and confirm that each and every worker has been provided and understands the written safety policy. While the experience of a worker may reduce the need for training and education it would be foolhardy to seek to rely solely upon this.

2. Appropriate equipment including safety equipment

As set out above, this is often a statutory requirement; however even if not expressly provided by law, a workplace operator must provide appropriate equipment. What that equipment is will depend entirely on the task to be performed by the worker.

3. Supervision

This is the third component of a safe system of work. Often, foremen fall into a false sense of security as a result of the experience of workers, and believe they do not need to spend much, or any, time supervising them. Unfortunately, the experience of a worker can sometimes create a situation where the worker is reluctant to take all necessary precautions due to an over confidence in his ability or experience that suggests to him that the precaution is unnecessary or a needless waste of time. As accidents happen when least expected, it is often the case that they occur when the worker and the foreman have let their guard down.

In order to avoid this, it is important for the workplace operator to maintain continuous supervision regardless of the experience of the workers. While it is unrealistic to expect that a foreman can be everywhere at once, any responsible workplace operator will call for, and program, regular supervision.

Adequate training, equipment and supervision of workers cannot guarantee or eliminate the risk of a claim being brought. Injuries on a construction site can be extremely severe and it is not uncommon for an injured worker to be rendered unable to work in the future. This can result in significant claims. It is accordingly imperative that workplace operators maintain appropriate insurance and proper contractual arrangements. Worksite operators can reduce the risks by creating and implementing appropriate safety systems. What is required in each case will depend entirely upon the circumstance of each individual site and while the above guidance will be of some assistance, both owners and worksite operators are strongly advised to ensure they have received legal advice specific to them.

Read the article in Caribbean Construction Magazine

Download a pdf of the article