Felice Morgenstern*
* This article is adapted from Deterrence and Compensation by Felice Morgenstern (ILO 1982).
Duties in Respect of Safety and Health
Liability and responsibility in law have two aspects: one is the duty to do, or not to do, something; the other is the obligation to answer for what has been done, or not done. Any examination of the manner in which different categories of person may be made answerable at the national level for causes of occupational accidents or diseases should be preceded by a summary of the duties laid upon them with a view to the prevention of such accidents and diseases. These duties are often expressly laid down in international standards, or national laws or regulations but may also be defined by case-law. Questions have been raised as to the appropriateness of determining, in (civil) legal proceedings subsequent to injury, what the conduct of those concerned should have been beforehand. But it is also clear that some of the decisions in question, and the publicity surrounding them, have acted as a spur in the field of prevention.
Public bodies
Public bodies (whether government departments, special safety and health executives or other, autonomous bodies) play a large part in setting the framework within which liability and responsibility arise, by formulating rules, both general and particular, regarding the duties of various categories of persons, as well as by participating in their enforcement.
General rules regarding occupational safety and health, and rules regarding safety and health in particular industries or in respect of particular hazards, may be laid down by such means as laws or regulations, codes of practice and technical standards approved by public bodies. A number of international labour Conventions require this to be done as regards the entire subject-matter of the Convention; others call for specific prohibitions, criteria or exposure limits to be established. National legislation, whether in the form of labour codes or specific laws on occupational safety and health, often further provides for detailed standards or regulations to be laid down by public bodies in mandatory form or approved as guidelines; normally, the bodies concerned enjoy considerable discretion regarding the areas in which rules are to be established and their content. In the context of this article, it may be of importance for such rules to specify the persons or bodies on whom the obligation to ensure compliance with their terms rests. A number of international labour Conventions call for this to be done; for instance, the ILO Occupational Cancer Convention, 1974 (No. 139).
Failure to observe provisions of non-mandatory rules such as codes of practice does not in itself provide a ground for civil or criminal proceedings. At the same time, such failure may be taken into account in proceedings regarding non-compliance with a more general, mandatory requirement, as showing that not all necessary care for its fulfilment has been taken.
The absence of general rules, or the failure of such rules to reflect up-to-date knowledge, does not necessarily release employers, manufacturers and others concerned from all liability and responsibility: some courts have taken the view that employers cannot shelter behind the inaction of public bodies. Thus, in 1971, the English High Court of Justice found, in a claim for damages for a severe form of decompression sickness (bone necrosis), that at the time when the injury occurred it was common knowledge among those concerned with compressed air tunnelling that the statutory decompression table was inadequate; the court held that it was the employer’s duty to keep his own knowledge up to date (Ransom v. Sir Robert McAlpine and Sons Ltd. 1971). In some countries the labour inspectorate appears to be expressly empowered to serve notice on employers to remedy dangerous conditions in respect of which no mandatory standards exist.
Manufacturers, suppliers and so on
Most countries have passed legislation or guidelines regarding the duties of manufacturers, suppliers and so on, in respect of occupational safety and health. Generally these relate to machinery and equipment, on the one hand, and dangerous substances on the other. Safety and health requirements regarding machinery and equipment, prior to their use at the workplace, may be said to be threefold: they must be as safe in design and construction as practicable; they must be tested to ensure that they are indeed safe; and they must be made available on the market (through sale, hire, import or export) only when known to be safe. The primary obligation in this matter may lie with the vendor, the manufacturer or on all those concerned.
While general requirements regarding substances for use in work may be analogous to those regarding machinery, it is often a great deal more difficult to determine the effects of a particular substance on health. Consequently, while some national laws treat obligations regarding substances in the same way as those regarding machinery, others are also directly responsive to this difficulty. For example, the French Labour Code as amended in 1976 requires that, before any substance that may involve a danger to workers is marketed, “any person manufacturing, importing or selling it” shall provide approved institutions with the information necessary to the assessment of risks (section L. 231-7); any such person may further be required to assist in evaluating the risk. In many countries, duties in this matter also include factors such as the labelling of hazardous substances and information on safe handling procedures. These duties may not necessarily be confined to the period when the product was first marketed: in the United Kingdom, for example, there may be an obligation to do whatever might be reasonable in the circumstances to keep up to date with current knowledge and to act with whatever promptness fairly reflects the nature of that information. The action to be taken would depend on the gravity of likely consequences of the risk, as well as the gravity of the consequences arising from withdrawal of the product (Wright v. Dunlop Rubber Co. and another 1971). It should also be noted that there is increasing international interest and activity concerning the harmonization of labels for hazardous substances. For example, ILO Conventions 170 and 174 contain export notification requirements.
Enforcement of Duties in Respect of Safetyand Health
There are two ways of being made liable for failure to comply with a duty: one is to be called to account for the failure itself, irrespective of whether it has had any consequences. The other is to be made answerable for the consequences of that failure.
Public bodies
It is very difficult in most countries to enforce by legal action obligations of public bodies to exercise their regulatory power, such as the obligation deriving from certain labour Conventions and much national legislation to establish regulations on occupational safety and health. Some common law countries know procedures such as the order of mandamus, which can be claimed by a directly interested person to compel public officers to perform duties imposed upon them by common law or by statute (there is, however, little evidence that such procedures are currently used in the present context). In any case, their use is made more difficult where, as often, the legislation in question leaves public bodies a large discretion as to the areas, means and timing of action. The main methods for obtaining action by public authorities are extra-legal. For example, pressure may be brought to bear by unions, consumer groups or other forms of public opinion (these methods do not constitute enforcement in any proper sense of the term).
More widely, measures taken by public authorities can be set aside on the ground that they do not comply with the law, go beyond the powers conferred by the law (ultra vires) or, more generally, are inappropriate or unreasonable. This is not strictly enforcement of an obligation, but rather definition of its limits.
Manufacturers and suppliers
Where legislation in the area of occupational safety and health places express obligations on manufacturers and suppliers, it tends also to lay down penalties for failure to observe those obligations (e.g., France, United Kingdom, Denmark, Sweden). In some countries the penalty for infringement can be only a fine; this would appear to be the situation in the United Kingdom except where a prohibition notice has not been complied with. In some countries repeated infringements may involve liability to imprisonment, as in France and Venezuela. In yet other countries, the basic sanctions can be either fine or imprisonment; this is the case under Section 1, Chapter 8, of the Swedish Working Environment Act, 1978.
Preventing the distribution of machinery and substances not meeting safety and health requirements must be one of the main aims of enforcement in relation to manufacturers and suppliers. A number of legislative provisions directly reflect that concern (e.g., the French Labour Code provides for possible emergency procedures to suspend the marketing of dangerous substances or the use of unsafe machinery; it also provides for the possible cancellation of sales or leases under which unsafe equipment was provided).
Employers
All recent international labour Conventions in the field of occupational safety and health provide for the supervision of their implementation by appropriate inspection services. For an in-depth discussion on labour inspectorates, see “Labour inspection” in this chapter. Of particular relevance here, however, is the question whether labour inspectors may directly initiate prosecutions, whether they have to go through hierarchical superiors or whether they have to submit their recommendations to other authorities such as public prosecutors. Various statistics show that the number of prosecutions, in relation to the number of violations of safety provisions found, is very low.
Workers
Where an employer may delegate responsibility for occupational safety and health matters, or where relevant legislation places obligations directly on technical or supervisory staff, the duties of the persons concerned are usually enforced in a manner analogous to the enforcement of those of the employer. Some legislation expressly makes it clear that orders and prohibitions issued by the labour inspectorate may be addressed to such persons (e.g., Sweden and the United Kingdom). Similarly, the persons concerned are often expressly covered by the same penalty provisions of the relevant legislation as employers. Moreover, measures may be taken in relation to them which are not possible in relation to an employer.
Differing disciplinary powers exist in a number of jurisdictions in relation to the obligations regarding safety and health of workers. The range of disciplinary penalties for minor offences goes from verbal warning to withholding of one day’s wages; for serious offences, from public reprimand through transfer and suspension for a few days to debarment from promotion for up to one year; and for very serious offences, from the withholding of seven to 15 days’ wages through suspension for up to two months, and debarment from promotion for two years to dismissal.
Penal liability may also exist for violation of the duties of workers in respect of occupational safety and health. In some cases such liability is expressly limited to serious offences (e.g., Spain); in others, such liability is limited to specific duties. For instance, under Section L. 263-2 of the French Labour Code as amended in 1976, the ordinary worker appears to be penally liable only for the introduction or distribution of alcoholic beverages in the place of work. Elsewhere, the liability is more general (e.g., the United Kingdom, Denmark and Sweden) but the possible fine may nevertheless be limited (e.g., in Mexico to not more than one week’s wages). At the same time, there are countries in which there is no penal liability as an enforcement measure for a duty of workers who exercise no supervisory responsibility. This would appear to be the case, for example, under the labour codes of certain countries of Eastern Europe. Similarly, in the United States, under the Occupational Safety and Health Act, 1970, only the employer is liable to the civil penalties laid down for nonobservance of safety and health provisions.
Consequences of Occupational Accidents or Diseases
Social security
One of the main concerns, following an occupational accident or illness, is to ensure the continued livelihood of the victim and the victim’s family. The main means to that end is workers’ compensation. An examination of employment injury benefit schemes in general falls outside the scope of this chapter, but some aspects of the subject are relevant.
First, in quite a number of countries employment injury benefit is provided under schemes based on the principle of the individual employer’s liability. In some countries this liability is compulsorily insured, while in many others it is up to the employer to decide whether to insure or not, and he or she may remain jointly and severally liable with the insurer even if the employer does insure. In addition, there are a number of countries in which national social insurance schemes do not yet cover all workers and the remainder are protected under a scheme of employer’s liability. Individual employer’s liability is based on risk, not fault: in other words, the employer is required to meet the consequences of an accident or disease causally related to employment, within defined limits and on prescribed conditions. There may be provision for additional benefit in case of “serious fault” of the employer.
Secondly, account may be taken, in the financing of employment injury insurance, of the employment injury record of particular industries or of individual employers. (As a general principle of financing, this applies only where employment injuries are covered as a distinct branch of social security and, even in such cases, not universally.) Collective or individual rating as applied in many countries is designed to establish a contribution rate corresponding to likely expenditure, but there are also systems of individual rating that are designed to meet actual cost during the observation period (France, United States), or under which a collective rate is increased or decreased for individual undertakings in the light of expenditure on accidents in their employment or the effectiveness of preventive measures (Canada, Germany, Italy, Japan). Whatever the general principle of financing applied, there may be penalties added to the contribution rate of an employer who fails to carry out prescribed preventive measures, and many countries make special provision, under the social security scheme and, again, whatever the general principle of financing, for financial penalties where accidents occur owing to the serious misconduct or gross negligence of the employer; in some countries, the employer is liable in such a case for the reimbursement of the entire expenditure incurred by the insurance institution. There are divergences of view regarding the value of recourse to one or another of the various schemes. All of them, though in different ways, require an administrative infrastructure which makes them difficult to apply in developing countries and costly anywhere. In addition, individual rating based on recorded experience is difficult to apply to small undertakings.
Thirdly, in a number of countries social security institutions play an active role in the promotion of occupational safety and health. In some countries that role includes not only the setting of safety standards but also their enforcement, including the imposition of penalties. This has been the case, in particular, in Canada, Chile, France, Germany and Luxembourg.
Finally, the possibilities open to a worker or to his or her survivors to bring into play the civil liability of the employer or of fellow-employees are often limited by reference to the existence of social security. Three main approaches may be distinguished.
First, in some countries with employment injury schemes based on the principle of the individual employer’s liability, there is an option: the worker can claim the benefit of the statutory no-fault workers’ compensation legislation or he or she can sue under the general rules of tort, in principle on the ground of fault. The choice cannot be altered once made to the extent of lodging a claim or instituting proceedings. Accordingly, a worker who opts for the potentially higher benefits of the civil action also runs the risk of obtaining no benefit at all if the action does not succeed.
A second solution—applied in many Western European countries, in French-speaking Africa, in Canada, in Mexico, and in Pakistan—is that of giving the employer and fellow employees immunity from civil action in respect of normal cases covered by the employment injury scheme. Civil action remains possible—perhaps in theory rather than in practice—where the employer or a fellow employee can be shown to have acted with intent. In some countries it also remains possible where there has been penal sanction (Italy), gross negligence (Norway) or serious fault (Switzerland), while elsewhere the “inexcusable” or other serious fault of the employer leads to an increase of social security benefits at the employer’s expense (France, Spain, Mexico, many French-speaking African countries). The concepts of serious or inexcusable fault have been defined by case-law or legislation in the countries concerned; the gravity of the fault tends to be either in the degree of disregard for the likely consequences of an act or omission, or in the failure to deal with dangers which have been drawn expressly to the employer’s attention, as a result of previous accidents or otherwise. In some of the countries following this approach, civil action also remains possible to cover elements of compensation, such as damages for pain and suffering, which are not covered by the statutory scheme (Austria, Belgium, Switzerland).
The third approach is to allow unlimited recourse to civil liability actions, with a view to supplementing the employment injury benefit received under social security. That recourse applies in some countries—Greece, Japan, Sweden, and the United Kingdom—to liability both for fault and, in so far as it exists, to liability without fault; in others it applies only to liability for fault (Chile, Columbia, Peru). The approach is also followed in the Netherlands and some of the countries of Eastern Europe, where occupational accidents and diseases are not treated as a distinct branch of social security.
It should be added that, while social security schemes regarding employment injuries tend to cover all employment-related accidents, they are often far from covering all employment-related diseases. Causality may be more difficult to establish in cases of occupational disease, and the question of responsibility may be further complicated where a disease takes a long period of time to manifest itself and may not appear until some time after employment has ceased. As regards diseases not covered—for instance, because the scheme has an exhaustive list of compensable diseases—the ordinary rules of civil liability apply.
Civil liability
The possibility of recourse to civil action in respect of the consequences of occupational accidents and diseases is far from general. Where action against the employer and fellow employees is excluded or severely limited, it remains open against the manufacturer or supplier, but only in respect of the consequences of shortcomings in machinery, equipment or substances. Moreover, in some of the countries in which civil action is freely available both the number of claims made and the proportion of them which go to the courts are relatively small (this is true of both accident/illness and discrimination cases).
There are a number of bases on which a civil action can be brought. It may be based on the breach of a contractual obligation (under a contract of employment, a contract for services, or, conceivably, a supply contract). It is more likely to be brought in tort, on the ground of a civil wrong or breach of a duty established by law. Such actions may in turn relate to a breach of a duty at common law, under the general terms of a civil code or under a labour code, or they may relate to a breach of specific statutory obligations in the field of safety and health. Finally, a tort action may be available for fault or on the basis of “strict” or “objective” liability—that is, for risk without fault.
The plaintiff
Where a civil action is not excluded by the system of workers’ compensation, that action is available to those injured by the consequences of a breach of duty, whether by fault or by the creation of a risk. First and foremost, the action is available to the worker who suffered an employment injury due to such a breach. It is generally also available, in case of death of the worker, to his or her survivors, although these may be variously defined as persons actually dependent on the worker, or persons whose maintenance the worker was required by law to ensure. There have been some decisions recognizing that in certain circumstances trade unions may have an interest in bringing an independent civil action (for example, this has occurred in France and Italy). Elsewhere there is no evidence of a systematic attempt by unions to bring civil actions to defend their own interests in the matter; the more usual situation is that of unions supporting, financially or otherwise, the claims of those directly concerned. Proceedings under social security legislation for increases in benefit on the ground of inexcusable fault of the employer may, in some countries, be initiated by the competent social security institution as well as by those directly concerned. Moreover, social security institutions which have paid benefits may be able to sue to recover these from a person civilly liable for an employment injury.
The defendant
A civil action may lie against a wide range of persons or bodies with duties in the field of safety and health. In practice, where such action is not precluded by social security legislation, the great majority of civil claims are made against the employer. Nearly everywhere, the employer is also liable to make good injuries caused by the wrongful acts or omissions of his or her employees, whatever the level of their responsibilities, in the exercise of their duties, although the basis for that liability differs. Common law countries have the concept of “vicarious liability”; some civil law countries base liability on the fact that the employer is the commetant (the one having engaged in the act). Both of these have undertones of agency and the practical effects are analogous. Elsewhere, the liability of the employer is derived from his or her own fault in the choice of employees or their supervision. Usually, the liability of the employer does not prevent simultaneous or parallel action against the worker who caused the damage. In any case, the injured party usually prefers to sue the employer.
The extent to which the employer is liable to make good injuries caused by the wrongful acts or omissions of persons other than his or her employees is a more difficult question. In some jurisdictions, there is legislation or case-law the effect of which is to make an undertaking responsible in certain circumstances for compliance with duties in respect of safety and health of workplaces under its control, even if the risks at issue have been created by third parties such as sub-contractors, or with duties in respect of employees working outside the employing undertaking even where another undertaking has control of the workplace. Except to the extent that statutory provisions go further, liability in such a case appears to be based on the notion that the employer is at fault in that he or she is not ensuring the execution of duties laid upon him or her and of which one cannot rid oneself by contractual or other relations with third parties; if he or she has done all that a reasonable employer could have done, there is no liability.
There is also the question of recourse actions. More than one person may be concurrently responsible for the situation which led to an employment injury: manufacturer and employer, employer and contractor, and so forth. Or the employer may have been made liable for the acts of others. Where the worker chooses or is compelled to seek a remedy against only one of several joint “tortfeasors” or against the employer rather than against those for whose acts the employer is liable, the person sued is normally able to claim a contribution from the others responsible.
Burden of proof and causation
The burden of proof in a civil action rests with the plaintiff: it is up to the plaintiff to demonstrate the grounds for that action. The plaintiff has to show, first, that he or she has the correct defendant. This should not normally create any difficulty in relation to an action against the employer. On the other hand, there may be a real difficulty—particularly in cases of disease with slow manifestation—in showing who was the manufacturer or supplier of the machinery or substances alleged to be unsafe. It appears that in certain matters related to workplace injuries, such as the manufacture of asbestos, suits are now brought jointly against all major manufacturers if responsibility cannot initially be pinned on one company.
Secondly, the plaintiff has to make out the claim against the defendant. Where a claim is based on strict liability, whether in respect of employment injuries in general or in respect of injuries caused by particular categories of dangerous objects, it is necessary only to show that the injury was indeed caused by employment or by the risk in question. Where a claim is based on non-performance of a specific statutory duty and the statutory provision leaves no discretion as to the manner of its performance, it is necessary to make out a case that the duty was not performed as stated; since this is a question of fact, it should not normally create major problems of proof. But where a statutory duty leaves a discretion—for instance by the use of such terms as “reasonably practicable”—or where a claim is based on a duty of care (under common law, under the general provisions of civil codes or under labour codes) demonstrating that the duty has not been fulfilled is not always easy. Accordingly, courts have considered to what extent the burden of proving whether there has or has not been fault should be placed on the employer or other defendant rather than the worker.
While some national approaches such as these relieve the plaintiff of the need to demonstrate the manner in which a careful employer would have prevented the accident or illness, they do not at all imply that the case will necessarily be won. In a proportion of cases it will be possible for the defendant to demonstrate that he or she had been as careful as possible in the circumstances (i.e., that he or she was not at fault). This is particularly true if a special degree of fault is necessary for an action to succeed—as in actions for additional social security benefits by reference to an “inexcusable fault” of the employer.
Whether the civil action is based on fault or on risk, it is necessary to show that the injury suffered is the result of that fault or risk (i.e., a causal connection between them must be demonstrated). It is not usually required that the fault or risk be the sole or determining cause, but it must be one immediate cause of the injury. The problem of showing a causal connection is particularly acute in cases of illness the origin of which is not yet fully understood—although courts have sometimes interpreted the law so as to give the benefit of the doubt to the worker. This difficulty may be caused by factors such as the worker having been exposed to new technology or a new substance, the full implications of which are not yet known; the disease may have a long latency period, or the worker may have been subject to complex exposures. Even in cases of accidental injury it is not always possible to prove “on the balance of probabilities” (the required degree of proof in civil actions) that the injury was due to the demonstrated fault. There are also cases in which the causal connection between a demonstrated fault and an injury is broken by the intervening tortious act of a person for whose acts the person being sued is not liable, although an intervening act does not necessarily break the chain of causation.
Defences
Even where fault or risk and its causal connection to an injury has been demonstrated, a number of possible defences may permit the defendant to reduce or even avoid liability.
First and foremost is the fault of the injured worker. Such fault may take the forms of failure to comply with safety instructions, of a degree of carelessness going beyond inadvertence, of “frolics” (behaviour at the workplace unrelated to the normal performance of work), of violation of orders, or of drunkenness. Different systems of law have sought to balance the degree of such fault and the degree of fault of the defendant in compensating injury.
A second defence known in some countries is that of volenti non fit injuria (i.e., that the injured worker knowingly and voluntarily assumed the risk which led to the injury). Given the inequality in standing between employer and worker, courts have been reluctant to consider that this defence applied in ordinary cases in which a worker performed work, with or without protest, which he or she knew to involve a risk other than the normal risk inherent in the work. While in the past it was a recognized practice to give workers who enter inherently dangerous jobs “hazard pay” as a contractual counterpart for the assumption of the risk, there is doubt as to the validity of contracts under which the worker agrees, even for consideration, to bear the consequences of risks for which the employer would normally be liable, and such contracts may indeed be expressly prohibited. On the other hand, the law looks kindly on the worker who knowingly and deliberately courts danger in order to save other persons. The law also increasingly protects workers who remove themselves from situations involving imminent danger and who “whistle-blow” on violations of safety and health laws.
It is too early to say what effect, if any, this defence will have on statutory provisions permitting or requiring workers to stop work when they believe serious danger to be imminent. In any case, the protection of workers who choose to stop work (or to “blow the whistle”) from recriminations and victimization deserves further attention in all jurisdictions.
From time to time, defendants have tried to rely on the fact that the dangerous working practice which led to an accident was widely used in the industry. There is no evidence that this has led to a limitation of liability. Conversely, the fact that certain good practices are widely followed in an industry has been regarded as evidence that a particular defendant not applying these practices was at fault.
Time limits for the submission of claims
Most legal systems permit civil actions to be brought only within a relatively short period after the date when the cause accrued; the usual period is two or three years and may be as short as 12 months. Since longer delays increase the difficulties of establishing facts, these time bars are in the interests of all concerned.
However, with the emergence of occupational diseases which manifest themselves only many years after exposure to the substances or agents responsible for them—in particular, but not exclusively, various forms of occupational cancer—it became clear that in certain circumstances it was necessary to have, as the starting point of the time limits for the submission of claims, the moment at which the worker concerned knew that he or she had a cause of action. This is now widely provided for in relevant special legislation or as a special provision in general Limitation Acts. This does not necessarily resolve all difficulty: it is not always easy to determine the precise moment in time when a claimant had or should have had all the elements enabling the worker to sue. This is somewhat easier where the disease is included in a schedule or classification of diseases
Categories of damage
Damages which may be obtained through a civil action tend to fall into three main categories, although not all three are universally obtainable: (a) payment of all medical and rehabilitation expenses not covered by social security; (b) payment of earnings lost, in most countries to the extent that they are not covered by social security; and (c) damages for pain and suffering, disfigurement and loss of enjoyment and expectation of life. The principle of tort is restitution—that is, the plaintiff should be in a position no worse than he or she would have been had the tort not been committed.
Earnings lost are in some cases compensated by periodic payments supplementary to any relevant periodic payments from social security and to such earnings as the worker is able to obtain after the injury, so as to bring total income to the level of previous earnings. It is more usual for compensation to take the form of lump sums. Where there is continuing incapacity or death, the assessment of future losses which has to be made is necessarily speculative both as to the level of earnings and as to life expectancy. Where there is an award to survivors the speculation bears not only on likely future earnings but on likely future support. Although an attempt is made to take inflation and taxation into account, it is very difficult to do so to a realistic extent with lump sum payments. It is not surprising in these circumstances that lump sum awards for loss of earnings vary greatly, and that a periodic allocation will sometimes be preferable (period payments may more feasibly take taxation and inflation into account).
Compensation for non-pecuniary loss (such as pain and suffering) can necessarily be only an estimation of what is reasonable. Again, this leads to variations in the sums awarded. Some legal systems permit courts to award punitive damages, which may reach very large amounts.
Conflicts of law
Some reference must be made to the operation of civil liability where an employment injury arises in circumstances having potential links with several systems of law. Situations are now prevalent in which dangerous activities such as construction or rig drilling are carried out within the jurisdiction of one country by undertakings having the nationality of another country and employing workers from yet other countries. Should injury or disease accrue in such a situation, the rules of conflict of laws (which may also be called private international law) will come into play. These rules are not international in the sense of being universally or even generally recognized in all legal systems, but are a branch of and peculiar to each system of private law; with regard to many issues, however, there is little disagreement and certain areas of disagreement which remain are being diminished, in particular through the adoption of international conventions. When the rules of private international law are invoked in any legal system, they decide only three preliminary points. First, whether or not the courts of that legal system have jurisdiction over the issue at hand. If it is decided that the courts do indeed have jurisdiction, they must then go on to decide whether to apply their own internal rules or those of another legal system involved. Finally, they will decide whether they must recognize as decisive any foreign judgement already pronounced on the issue, or enforce any right vested in a party under a foreign judgement, or on the other hand treat such judgement or rights as nullities. The links between an injury and several countries may lead to “forum shopping” (i.e., the attempt to bring an action in the country where the highest damages are likely to be obtained).
Penal (criminal) liability
Penal or criminal liability following an employment injury, in the widest sense of liability to a penalty, may be incurred on four possible bases.
First, the occurrence of an accident or the apparent incidence of disease may bring into operation the provisions designed for the enforcement of laws and regulations regarding occupational safety and health. The inspectorate in most countries is too understaffed to keep a constant eye on all possible dangers. On the other hand, when accidents or diseases become known, in particular through their obligatory notification, this may lead to inspection visits and, as appropriate, criminal prosecution.
Secondly, some legislation concerning occupational safety and health contains special provisions regarding penalties applicable in the case of accidents or diseases, particularly where these are serious. The equivalent may be found in most systems of workers’ compensation in the form of increased contributions for poor health and safety performance.
Thirdly, employment injuries, particularly if serious or fatal, may bring into operation rules of criminal law not specifically related to occupational safety and health, such as those related to manslaughter, special rules on fires and explosions, and so on. There are some cases (examples may be found in Italy and the Netherlands) in which the normal penalties for the offences in question are increased where they were committed in a work setting.
Finally, there are cases in which penal codes contain specific provisions regarding injuries caused by violations of requirements on occupational safety and health.
It is sometimes expressly provided that action on one of these four bases does not exclude action on another. In some countries the reverse is true: in Sweden, for example, use by labour inspectors of their power to make compliance with remedial or prohibition orders subject to fines excludes recourse to action through the criminal courts. In some cases, but not always, the attitude to plurality of sanctions derives from the nature—civil, administrative or criminal—of those sanctions specifically designed for enforcement. There would seem to be little doubt, although there are no formal statistics to prove it, that most of the low number of prosecutions in relation to occupational safety and health infringements relate to infringements which have caused injury. There is similarly no statistical information on the use made of general rules of criminal law in relation to employment injuries. It would appear, however, that there are greater variations in this respect from country to country than with respect to other aspects of enforcement.
Elements of the offence
There is a wide acceptance of the maxim that there should be no penalty without previous legal authority. While, therefore, it is possible for courts in civil proceedings to affirm the existence of legal duties not previously defined, this is not normally possible in penal proceedings. On the other hand, it is possible in penal proceedings to determine the practical implications of a duty established by previous authority: in practice, this distinction between civil and penal liability may be one of degree. Different legal systems also appear to agree that an offence is committed only if there has been intent or, in many of them, culpable negligence, unless a legislative enactment expressly provides otherwise.
The enforcement provisions of some legislation on occupational safety and health make it an offence not to comply with statutory requirements in the field, irrespective of whether there was intent or culpable negligence, and so do some special provisions in penal codes. This has been confirmed by case-law. For instance, in a decision of 28 February 1979, the Supreme Court of Spain held that failure to comply with prescribed safety measures in the construction industry was sufficient in itself to give rise to sanctions under the corresponding enforcement measures. In some cases this strict liability carries only administrative or civil penalties. In many countries, the difference between strict liability, on the one hand, and the requirement of deliberate action, on the other, may not be as great in practice as appears at first sight. There are variations between different legal systems as regards the degree of negligence necessary for it to be “culpable” so as to warrant the imposition of penalties.
Initiation of penal proceedings
In principle, all prosecutions are a matter for the appropriate public authorities; criminal sanctions are intended for the protection of the interests of the community and not of the individual. There are, however, some possibilities for private prosecutions in certain circumstances (e.g., in Switzerland, Austria, England, Finland and France). Sometimes an inspector may institute proceedings, but it is more usual for action to be taken by public prosecutors, district attorneys, state solicitors and similar authorities. They act upon information from inspectors, social security bodies, the injured person, or members of the public, but the final decision regarding action is theirs. In principle, if they are satisfied that an offence appears to have been committed, they should act.
Two additional comments should be made. First, in respect of penal proceedings, the statutory periods of limitation do not so far appear to have given rise to difficulty (possibly because periods of limitation for penal purposes are often very long). Secondly, penal legislation is territorial, in the sense that it applies only to an offence which has effect in the territory over which the enacting legislation has jurisdiction. In transnational work situations, this limitation of jurisdiction can raise the problem of where the power to control health and safety lies.
Persons liable
Penal proceedings, like civil proceedings, are in principle possible in relation to any person with duties in the field of occupational safety and health. A problem which arises is that of the liability of legal persons (i.e., of corporations which have duties as manufacturers or employers). It is a widespread principle in criminal law that only natural persons can be liable: in many cases that principle is absolute, in others it applies only to some offences. In connection with occupational safety and health some countries expressly envisage the possible penal liability of corporations. Because of general principles of criminal law, certain of these do so only as regards penalties imposed by the labour inspectorate or other administrative and civil sanctions (e.g., some Scandinavian countries, Belgium, Spain), whereas others do not make that distinction (e.g., England, the United States). It is sometimes expressly specified that the liability of companies is to be enforced by means of fines. Contrary to the situation in many countries, proceedings in England are brought against the corporate employer in preference to any individual working within the undertaking, on the assumption that the company has a much greater degree of control.
Individuals—whether non-corporate employers, or directors or managers of companies—may be made liable for violation of the employer’s duties, directors or managers being liable in place of or in addition to corporations. For this purpose there must be a personal fault. Given the generality of the duties widely laid upon the employer, it is not difficult for courts to find that there is some omission. Nevertheless, there are cases of acquittal on the ground that there was no personal fault of the individual employer or director. In certain circumstances an employer may delegate duties as regards occupational safety and health (and the corresponding penal liability) to line management, or duties in this matter may be laid directly upon technical and supervisory staff. Case-law shows that the penal liability so laid on the staff in question is not simply theoretical. In France, the Criminal Court of Béthune, on 22 January 1981, held the chief engineer of a mine guilty of involuntary manslaughter in respect of a firedamp explosion in 1974 which cost 40 lives; he was found seriously negligent in not having installed a gas detector. In Italy, in the 1977 case concerning the use of benzene in a dye factory, the general manager, the technical manager and the works physician, as well as the owners and the managing director, were found guilty of involuntary homicide. A study made in Finland (1979) of penal responsibility in practice showed that 19% of charges and 15% of convictions concerned managers, 36% and 36% respectively concerned executives, and 35% and 38% respectively concerned supervisors. Penal proceedings against workers who do not have technical or supervisory responsibilities are possible in a number of countries, but not universally; they would appear to be used relatively sparingly and to require a high level of personal fault.
Defences
It is generally no defence in penal proceedings that the accused did not know the law. Conversely, it is often emphasized that it is the duty of the employer and of technical and supervisory staff to have all relevant knowledge.
In penal proceedings, contrary to the situation in civil cases, the fact that the negligence of the victim contributed to an accident is also generally not a defence. For instance, a Swiss court in 1972 convicted an employer following the electrocution of a worker who was loading metal onto a truck under a live electric main; it held that, while the worker himself could have taken the essential precaution of switching off the current, it was the responsibility of the supervisor (in this case the employer) to ensure the safety of the worker by so doing.
On the other hand, there may be a variety of extenuating circumstances which are taken into account by courts with respect to the penalty to be imposed (for example, an exemplary work record). In a Swiss case in which an accident resulted from the insufficient shoring of a drainage trench, the fact that the employer had tried to save working hours for the benefit of the employees working on piece rates, while not a defence, was taken into account in sentencing.
Penalties
Earlier (in the section on enforcement) some examples were given of the penalties possible under legislation on occupational safety and health. In many cases the financial penalties so laid down have higher ceilings than those available under more general penal codes and statutes.
On the other hand, the range of possible sentences of imprisonment is more likely to be greater under general penal codes and statutes.
In certain circumstances, other types of penalty are possible, such as being banned from the occupation in which a homicide occurred. Moreover, under Section L. 263-3-1 of the French Labour Code as amended in 1976, in the case of accident in an undertaking where serious or repeated infringements of safety and health rules have been observed, the court may require the undertaking to submit for its approval a plan to normalize conditions; if the undertaking fails to do so it may be required to implement some other plan approved by the court.
As in other areas of criminal law, it would appear that in practice the penalties imposed seldom encompass all possibilities or reach the possible maxima. Instances of imprisonment occur, but rarely. Fines are imposed, but rarely at maximum levels.
Largely as a result of the scarcity of specifically compiled statistical information, and the fact that it appears very few health and safety claims actually make it as far as a courtroom, it is extremely difficult to evaluate the deterrent effects of civil and criminal liability, either in absolute terms or in relation to each other. It is similarly difficult to determine the role which legal liability plays in prevention relative to social security or voluntary compliance measures. The criminal law none the less remains a deterrent, along with civil law remedies, of health and safety violations.