Author: Dr Ivan Mifsud
The Occupational Health and Safety Authority Act (Chapter 424 of the Laws of Malta) was passed in the year 2000 and came into effect around two years’ later. Since then a lot of rules and standards were established, obligations placed largely on the shoulders of the employer, which include, amongst others, the provision of safety clothing and safety equipment, and the placing of signs warning of danger, to name but two. Breach of these legal obligations by the employer results in payment of administrative penalties of up to 450 Euro should the employer choose to admit the accusation without contesting it and settling the matter out of court, or fines resulting from prosecution before the criminal courts, and possibly even civil liability in case of an injury of an employee or – worse still – death of the employee.
One such case involving the death of an employee, which court proceedings were instituted by the deceased employee’s widow in her own name and on behalf of their daughter, was Rikors Numru 95/2010 SM decided by the First Hall of the Civil Court on 6th June 2017. The victim was part of a gang of employees who were unloading containers from a cargo ship, and unfortunately ended up crushed under one such container when he was trying to make his way out of the hold which was full of diesel fumes from the fork lifter being operated. From inquiries a number of shortcomings resulted, including that no safety signs were put up, that not all the employees were provided with bright coloured vests and hard hats, that the driver of the fork lifter had his visibility impaired and nobody to assist him at that moment when he hit a container which injured the victim leading to his death. One witness gave evidence that he had warned the deceased to stay away and that he was in danger, but on this particular point the Court observed that the witness was Italian and that no evidence was brought that the victim spoke Italian and that he could understand what was being told. On this basis, the Court referred to the employer’s obligations under Laws of Malta Chapter 424 which obligations include ‘the duty of an employer to ensure the health and safety at all times of all persons who may be affected by the work being carried out for such employer’ (article 6(1)). The Court also referred to the Civil Code (Chapter 16 of the Laws of Malta) and found the employer liable for negligence under article 1032 of the said code (failing to act with the diligence, care and attention of a good head of the family) and calculated material damages to amount to €776,729.53.
Needless to say, the employer has appealed from this ruling, which appeal is still pending at time of writing (November 2022). Irrespective of the outcome, apart from the tragic loss of human life, employers must be on their guard because failing to abide by occupational health and safety obligations can prove to be very expensive.