Occupational Safety And Public Health Legislation For Accident Prevention

Question

Complete the three exercises found in the Module 2 Topic 3 notes., namely:
Exercise 1: Look for relevant legislation in a jurisdiction of interest to you and extract from it the general statements of expectation.

Relevant legislation is legislation that is concerned with safety duties in either the occupational or public risk domains.

Extend your investigations to include a small number of relevant Regulations and Codes of Practice, including those relating to the meaning of the term ‘reasonably practical’.

Subject these to a critical analysis (in the context of the theory introduced in this Unit) of meaning, 2 definitions, logic and practicality.

Exercise 2: In 2016 a mines tailing dam in Brazil failed. See for example: http://www.abc.net.au/news/ 2017-12-22/bhp-provides-millions-more-after-samarco-dam-disaster-brazil/9282394. There is a lot of information on the www about this very high profile disaster.

This ABC article includes these comments: “…the collapse was due to a range of construction and design flaws”, and “BHP has taken multi-billion dollar write downs because of the Samarco disaster and operations remain suspended at the mine”. The article also records the fact that the Brazilian authorities were sue-ing the various companies involved for more than US$50billion.

Read up about the disaster and about the negligence concepts which I have outlined above. A search for this term on the www will unearth many sites that will expand on the ideas I have presented. How do you think the four common law tests of negligence would be argued in a court of law by a lawyer defending the owners of the mine?

Exercise 3: In the notes above this is said:
Any discussion about risk is always concerned with whether enough is currently being done to control the risk.” “… how does an organisation decide what is acceptable and to whom it is acceptable?”

In the context of the Samarco Dam failure, discuss (in about 500 words) how the process of risk assessment as described above would be or could be applied to the decision-making of senior managers on dam safety. Include in this the dynamics of decision-making on (a) the expenditure of funds to improve understanding the dam’s condition and (b) about the funds required to improve its stability by senior management at the mine.

Answer

Exercise 1: For this exercise the ‘Workplace Safety and Health Act (WSH) of Singapore’ which is the main legislation in Singapore governing Occupational Safety and Health has been studied and analyzed (Gualmini, E. (2009).

The general statements of expectations from employers have been mentioned in Part IV of the Act, Section 12 as follows:

Duties of the employers

1. It will be the duty of each employer to take as far as is reasonably possible, all the measures that are required to ensure safety and health of employees at workplace.
2. It will be the duty of every employer to take reasonably feasible measures that will ensure safety and health of persons (non -employees) which might be impacted by any work done by him/her at work.
3. For the relevance of subsection (1), the precautions required to ensure safety and security of people at work include —
   1. Giving and having for persons an environment that is safe, without any danger to health, and having adequate facilities and provisions for their welfare at workplace.
   2. Ensuring that proper safety measures have been taken with regards to machines, equipment, tools or, processes used by people.
   3. Ensuring that these people are not exposed to hazardous elements arising out of processes arrangement, waste, manufacturing, storage, transport, working or usage of materials —
      1. In the workplace; or
      2. near the workplace under the supervision of the employer personnel
   4. Creating and managing procedures for handling emergencies that could arise when people are at the workplace and;
   5. Ensuring that persons at workplace have enough instructions, information, training and guidance as is important for them to perform their duties.

   Singapore has developed subsidiary regulations and Codes of Practices for industry wise best practices.

   Some of the regulations and Codes of Practices which include but are not limited to are as follows:

   • WSH (General Provisions) Regulations.
   • WSH (First Aid) Regulations.
   • Code of Practice on WSH Risk Management.

   For this exercise, the WSH (General Provisions) Regulations are analyzed here. These regulations govern all workplaces in Singapore where people could be exposed to hazardous substances.

   From definitions point of view, the act clearly defines terms like hazardous substances, competent person, electrical equipment, permissible exposure level, time weighted average concentration, toxic substance and transmission machinery.

   It covers key responsibilities of the occupier of the workplace (i.e. which is defined in the main legislation) with regards to the following aspects

   • Overcrowding: The legislation expects the occupier to avoid overcrowding, but stops short of defining overcrowding since the term could mean different things to different people (McGlynn, C. and Westmarland, N., 2018).
   • Ventilation: It expects the occupier to provide reasonable ventilation at the workplace but also makes an exception saying it will not be applicable to a workplace where it is not possible to provide adequate ventilation and some alternative arrangements have been made.
   • Lighting: It expects the occupiers to provide sufficient and proper lighting wherever people are working. It allows for both natural and artificial lighting. Again the words sufficient and suitable lighting are subject to discretion.

   Exercise 2: The Samarco dam disaster happened on November 5, 2015 in Brazil causing 19 deaths and flooding with toxic waste Samarco was a joint venture between BHP and Vale of Brazil.

   As a lawyer defending the owners of the mine in a court of law the arguments which can be presented on the four tests of negligence are as follows:

   • Test of Causation: It has been proved by an independent investigation panel appointed by the Govt of Brazil that the collapse of the dam was triggered by three seismic shocks. Earthquake forces created horizontal movement in the slimes and hence the client cannot be held responsible for force de majeure events.
   • Foresee-ability: There are 2 issues that are interrelated and need to be presented before the court of law for this test of negligence to pass and the owners of the mine to be prosecuted.
     • The first aspect which has been discussed previously and investigated is that the dam was damaged because of natural calamities, which is out of control of the owners of the mine and hence they cannot be held responsible for forces of nature.
     • There has no such precedent incident of such magnitude and scale that could have cautioned the owners of the mine that such an event could occur in the future. Hence prosecuting the owners on this test would be unfair and unjust to them
     • An independent report done by a firm named VOGBR had concluded that the dam was safe as early as July 2015. Had there been any concerns about the foreseeable danger, it would have been highlighted in the report, but there is no such mention in the report. This report has already been presented in the court of law (Law, 2015).
   • Controllability: Samarco owners have already testified that the mine site was being monitored and checked with tools like drones, piezometers, gauges at water level and surface marks twice a week. No monitoring tool and measures indicated any abnormalities in the dam (Miranda, L. and Marques, A., 2016). Hence it can be said with evidence that the owners of the mine had taken the necessary control measures to check dam health on a continuous basis.
   • Reasonableness: As seen can be inferred from above arguments, it is obvious that the owners of the mine could not have foreseen the problem since it was a natural occurrence and not a man made one. Also the owners had taken the necessary precautions at the site and were constantly monitoring the dam condition with all the possible modern equipment and technologies that is deployed for the same purpose globally. The court of law can hereby infer that although undoubtedly it was human tragedy of colossal scale, the owners of the mine cannot be held liable for this. Moreover the owners have themselves come forward and agreed to pay $2.3 bn for compensation and restoration over a six year period subject to key milestones. Hence there is no case of criminal liability against the owners of the mine (Mukerjee, M., 2015).

   Exercise 3: As discussed in the note, the process of risk assessment can be outlined as below

   Identification: In terms of potential operational risk, one can safely expect that the operating conditions of the dam, its ability to hold mining waste, also known as ‘ tailings’, its drainage system and design of the dam walls should have been subjected to formal and rigorous recognition and analysis in terms of its potential risk. With specific reference to this case, the identification process should have clearly identified the need for efficient drainage system of mining waste as well of ensuring the strength and durability of the material used to build dam walls so they don’t collapse or break out under pressure (Jednak and Jednak, 2013).

   Estimation: The formal process of estimation should have included methods of deciding how important the potential risk are, for instance, knowing how much mining waste would have been generated from the mine over a period of time, is the dam capacity enough to hold mining waste adequately, how will the mining waste be discharged safely and how frequently, and the strength of the dam structure itself. This process would have made the potential risk of inefficient drainage and insufficient dam strength quite clear to the decision makers. Also the human cost of what finally occurred and the financial losses and the bad press the company got because of this incident should have been taken into account as well for estimating the scale of risks involved.

   Aversion: The formal process should have resulted in a more structured analysis of risks and the control measure that could have been take to mitigate the risks involved (Lee, 2016). For instance, the drainage system of the dam could have been better planned to ensure that the strength of the dam is not compromised because of the mining waste. Also the structural design of the dam, materials used in construction of the dam would have been given the importance it deserved as part of risk control measures. Also periodic checks on the strength of the dam would have helped the management of the mine to come with some risk mitigation plans to minimize its impact on the loss of lives and property, this tragedy led to (Lee, K., 2016).. The costs-benefit analysis for (a) the expenditure of funds to improve understanding the dam’s condition and (b) about the funds required to improve its stability by senior management at the mine is discussed in the table as below

   

   The above table shows the direct costs and advantageslinked with the expenditure of funds towards the twin goals of understanding the dam’s condition and improving its stability to avert any potential tragedy.

   Acceptance: The decision to accept the dam design as it is would have been finalized only after going through all the pros and cons of the evaluation done above. It would have been formally documented as to why there is no need for any design changes to the dam, the materials being used and plans for a better drainage system. It would have had a formal acceptance from the senior management of the mine.

   References
   McGlynn, C. and Westmarland, N. (2018). Kaleidoscopic Justice. Social & Legal Studies, p.096.

   Miranda, L. and Marques, A. (2016). Hidden impacts of the Samarco mining waste dam collapse to Brazilian marine fauna - an example from the staurozoans (Cnidaria). Biota Neotropica, 16(2).

   Mukerjee, M. (2015). The Impending Dam Disaster in the Himalayan Mountains. Scientific American, 313(2), pp.14-16.

   Naniwadekar, M. (2008). The Law of Agency as applied in Company Transactions. European Company And Financial Law Review, 5(3).

   Lee, K. (2016). Risk Aversion, the Hand Rule, and Comparison between Strict Liability and the Negligence Rule. Review of Law & Economics, 12(2).

   Scheff, C. (2012). People-Friendly Taxation - Moving Beyond Legacy Concepts. SSRN Electronic Journal.

   Acharyya, M. and Brady, C. (2014). Designing an Enterprise Risk Management Curriculum for Business Studies: Insights From a Pilot Program. Risk Management and Insurance Review, 17(1), pp.113-136.

   Dionne, G. (2013). Risk Management: History, Definition, and Critique. Risk Management and Insurance Review, 16(2), pp.147-166.

   Vicarious Liability or Liability for the Acts of Others in Tort: A Comparative Perspective. (2011). Journal Of European Tort Law, 2(1).

   Zhou, J., Zheng, Q., Liu, J., Du, G. and Chen, J. (2013). Indigenous plasmids of Bacillus megaterium WSH-002 involved in mutualism with Ketogulonicigenium vulgare WSH-001. Plasmid, 70(2), pp.240-246.

   Jednak, D. and Jednak, J. (2013). Operational Risk Management in Financial Institutions. Management - Journal for theory and practice of management, 18(66), pp.71-80.

   Law, D. (2015). “As for the future, your task is not to foresee it, but to enable it”. IFLA Journal, 37(4), pp.269-275.

   Cowley, M. (2015). Moot Court Report: Applying the Equality Act (2010) & the Health & Safety at Work Act (1974). SSRN Electronic Journal.

   Ghosh, T. (2013). Occupational Health and Hazards among Health Care Workers. International Journal of Occupational Safety and Health, 3(1).

   Negligence. Plaintiff's Continuing Negligence Concurring with Negligence of Defendant as Bar to Recovery. (2015). Virginia Law Review, 15(2), p.201.