1. GHANA INSTITUTE OF MANAGEMENT AND PUBLIC ADMINISTRATION (GIMPA) DOSHEM
TOPIC: OCCUPATIONAL HEALTH AND SAFETY LEGISLATION
FACILITATOR
PETER AGBO-GANDEE
(SHEQ Mgr.)

2. Expected Learning Outcomes
On completing the module participants should understand:
The need for occupational safety and health (OSH) legislation
How OSH legislation is structured
The current limitations in OSH legislation in Ghana and the need for improvement
Enforcement of OSH legislation

3. Health and safety law/Regulation
Health and Safety law protect people at work, which covers the civil and criminal liabilities of employers towards their employees and other persons.
The ILO Constitution sets forth the principle that workers should be protected from sickness, disease and injury arising from their employment.

4. Why the Need for OSH Legislation
Occupational safety and health related accidents impact negatively on economic growth.
Laws are useful in compelling employers to put sound OSH managements in place.
Proactive organisations do not wait for the law.

5. Obligations beyond legal compliance
The ability of an organization to move beyond a legal compliance mindset is a test of its culture and commitment to safety.
Legal compliance is a minimum requirement set by legislation, policies and codes of practice.
Employers are also responsible to shareholders and society.

6. SOURCES OF LAW
There are two sources of law-
1.Statute Law.
2.Common Law(case Law )

7. STATUTE LAW
Statutory Law is the term used to define written laws, usually enacted by a legislative body.
written law by parliamentary process, and amend statutes
As a source of law, statutes are considered primary authority
Statutes supersede all forms of law

8. Acts of Parliament
Primary or principal laws made by parliament and are fully supported by law,
Acts of parliament set out framework of principles or objectives
Compliance to an Act is mandatory
Non-compliance may result in penalties including fines and/or imprisonment.

9. Legislation
Legislation (or "statutory law") is law which has been promulgated (or "enacted") by a legislature
Legislation can have many purposes: to regulate, to authorize, to outlaw, to provide (funds), to sanction, to grant, to declare or to restrict

10. There are two main kinds of legislation
1.Supreme legislation also known as Primary legislation - Acts made by Parliament or Statutes 2. Delegated (or subordinate or subsidiary) legislation refers to those laws made by persons or bodies to whom parliament has delegated power or authority. Subordinate or Subsidiary or Delegated Legislation are known as Secondary legislation - Statutory Instruments ( which are often Regulations ,Codes, Orders, Rules)

11. Delegated Legislation (or ‘subordinate’ legislation or "subsidiary legislation" ).
When passing an act, the legislature may make provision for what is known as delegated legislation.
Delegated legislation is used to grant some person or governing body the power to make orders, regulations and rules which have the force of law.

12. Reasons for Delegated Legislation
The reasons for using delegated legislation arise out of the limitations placed on the legislature during and after the formal process of passing legislation.

13. They are:
Lack of time - the legislature has insufficient time to deal with and debate all issues necessary for efficient government.
Urgency - the legislature is not always in session. Furthermore, the process is often slow.

14. Flexibility - a ministerial or secretarial order can be made speedily if legislation needs clarification.
The legislature would need to pass another statute to achieve the same effect.

15. Technical matter - much legislation today is of a technical nature and requires detailed expert input.
This is best left to ministers or secretaries of state advised by their departments' or by statutory boards or commissions.

16. Future needs - the legislature cannot foresee all the difficulties associated with health, safety and welfare issues.
Future difficulties are best dealt with by delegated legislation.

17. Enabling act
A statute empowering a person or body to take certain action, especially to make regulations, rules, or orders.

18. Regulations
Regulations provide specific rules within the limits of the Act
They are adopted and amended by cabinet or the sector minister
Regulations are subsidiaries of the Act, but they are also mandatory
Non-compliance attract fine and/or imprisonment
Regulations are legally enforceable

19. Legislation Vs Regulation
1. Legislation is a directive proposed by a legislative body while a regulation is a specific requirement within legislation.
2. Legislation is broader and more general while regulation is specific and details how legislation is enforced.

20. Legislation Vs Regulation
3. Legislation may be proposed by a head of state while regulations are simply enforcements by regulators and head of state doesn’t interfere. 4. Legislation is almost always internally generated within a country’s government while regulations may be internally or externally generated, especially pertaining to certain industry.

21. Codes of Practice
They provide general guidance on ways to comply with the minimum standards and objectives that are detailed in the regulations.
They are adopted and amended by a relevant government body.
They are not mandatory but can be used in legal proceedings as evidence of compliance with an Act or Regulations.
Codes of Practice provide advice on how to meet regulatory requirements. 

22. Guides or Notes of Guidance
They provide official detailed information on recommendations to help employers comply with OSH laws.
They provide practical “how to” information for getting compliance.
They are not mandatory but they explain the type of action that employers should take to comply with the relevant laws.
They are adopted and amended by relevant government bodies.

23. Guides or Notes of Guidance
Guidance notes have no legal status and are not, generally, admissible as evidence in criminal proceedings.

24. Acts
Regulations
Codes of Practice
Guidance Notes

25. Breaches of Statute Law
Breaches of statute law can be used in civil claims to establish negligence.

26. Types of Statutory Duty
There are three types of statutory duty which form a hierarchy of duties:
Absolute duty
Practicable
Reasonably Practicable

27. Absolute Duty or (strict liability)
This is the highest level of duty and implies strict liability.
It is applicable to situations when risk of injury is so high that the employer must take specific actions to eliminate the hazards.

28. No assessment of risk is required but the duty is absolute and the employer has no choice but to undertake the duty.
The terms ‘must or shall’ are used in the clauses of the Act or Regulations to demand absolute duty. (command or mandatory )
Act Of Omission. 
Omission is the neglect to perform what the  law requires.

29. Practicable duty
once something is found to be practicable it is feasible and must be done irrespective of cost or inconvenience
It means that if the duty is technically possible or feasible, then it must be done irrespective of any difficulty, inconvenience or cost.

30. Reasonably Practicable
It refers to the best action under the circumstances.
The employer is allowed to balance the cost of taking action (in terms of time money and inconvenience) against the risk being considered.
If the risk is insignificant against the cost then steps need not be taken.

31. Common Law
The term 'common law' refers to a system of law originally derived in England and imported into many other countries at the time of colonization.
Common law is based on sets of rules developed by judges usually hearing cases in superior courts.
Common law is also referred to as 'case law' and can be viewed as legal rules not contained in legislation

32. These are based on judicial precedent;
Common principles or accepted standards fill the gaps where statute law has not supplied specific requirements.
Common law also provides the foundation for most civil claims made on health and safety issues.

33. There are important differences between common and statute law.
Judges, through the common law court system, could be seen as making decisions in order to resolve specific disputes between various parties.

34. If, for example, a worker is injured in the workplace a court will decide on the question of blame and what compensation is owed.
This may set a precedent for future cases.

35. The courts, however, cannot establish rules that will prevent future accidents occurring.
Common law is re-active, whereas legislation has the potential to be pro-active and may serve to prevent problems rather than simply provide a means of settling disputes.

36. Legislation is much more flexible than common law and always takes precedence over it.
Parliament within the limits of its power can change any principles deriving from case law that may be considered undesirable

37. Civil and Criminal Jurisdictions
The legal system is generally divided into two major areas - civil law and criminal law.

38. Civil law
Civil law deals with disputes between individuals or individuals and companies.
An individual sues another individual or a company to address a civil wrong .
The purpose of this law is to provide compensation.

39. Civil law
The individual who brings the complainant to court is known as the plaintiff and the individual or company who is being sued is known as the defendant.

40. Civil law
The civil court is concerned with liability rather than guilt or non-guilt.
The level of proof required is based on the “balance of probability”, which is a lower level of certainty than that of “beyond reasonable doubt” required by the criminal court.
Civil cases are proved by lower standards of proof such as "the preponderance of the evidence" the lowest standard of proof.

41. STANDARD OF PROOF
The amount of evidence which a plaintiff (or prosecuting attorney, in a criminal case) must present in a trial in order to win is called the standard of proof.

42. Civil law
If a defendant is found to be liable, the court would normally order him to pay a compensation and possibly costs to the plaintiff.
The lower the balance of probability, the lower the level of compensation awarded.
In extreme cases where the balance of probability is just over 50%, the plaintiff may win his case but lose financially because costs may not be awarded and the level of compensation low

43. Criminal Law
Criminal law is the law that operates between the state and the individual.
Criminal law consists of rules of behaviour laid down by the government or the state and, normally, enacted by Parliament .

44. Criminal Law
These rules or Acts are imposed on the people for the protection of the people .
The purpose of criminal law involves punishment, usually either a fine or imprisonment.

45. Criminal Law
An individual who breaks criminal law is deemed to have committed an offence or crime and, if he is prosecuted, the court will determine whether he is guilty or not.
If he is found guilty, the court could sentence him to a fine or imprisonment.

46. Criminal Law
Due to this possible loss of liberty, the level of proof required by a criminal court is high and is known as STANDARD OF PROOF‘beyond reasonable doubt”, which is as near certainty as possible.
While the prime object of a criminal court is the allocation of punishment, the court can award compensation to the victim or injured party.

47. Criminal Law
There is one important difference between procedures for criminal cases in general and criminal cases involving health and safety.
The prosecution in a criminal case has to prove the guilt of the accused beyond reasonable doubt.

48. Criminal Law
When a natural person, corporation or government body is prosecuted for a breach of legislation, including OHS legislation, the case is heard under the rules governing criminal matters.
When the employee sues the employer for damages arising out of a work injury, the case is heard in the civil jurisdiction

49. Employer's Duty of Care
The employer's duty, as recognized by law in many jurisdictions deriving from English law, is to take 'reasonable care' for the safety of his/her employees in all circumstances of the employment.

50. This duty of care is usually summarized as follows:
Employer's Duty of Care
This duty of care is usually summarized as follows:
Provision of a safe place of work.
Provision of a safe system of work.
Provision and maintenance of safe plant and equipment.
Provision of competent staff to manage and supervise the employer's business.

51. Definition of standard of 'reasonable care'
The standard of care required might be said to be that amount of care that would be exercised in the same circumstances by a reasonable person.
The more serious the potential injury, the greater the standard of care required.
A lack of resources is not usually accepted as defence for the defendant failing to exercise reasonable care.

52. Reasonable Person A reasonable person would consider:
standard of care required
the possible risk
magnitude of the risk
likelihood of injury or damage that will occur
Precautions to be taken or taken
seriousness of possible injury or damage
The courts will consider the cost and practicality of measures that defendant could have adopted in order to prevent injury or damage.

53. Reasonable Person
The victim of an injury sustained at work, can sue in the courts for pain and suffering, and if the court finds the employer was negligent, receive an award of damages..

54. Prosecutions
Prosecutions under occupational health and safety legislation can take a number of forms.
They can be based on:
failure to obey an administrative notice, e.g. prohibition or improvement notice.
breach of the general duty of care (such prosecutions are usually brought after an injury or serious near miss).
breach of a specific section of the act or regulations

55. Penalty
Penalty is by way of a fine, imprisonment or both

56. Civil liability
A civil action generally involves a claim of negligence or breach of statutory duty by employee against the employer.
Civil liability refers to the ‘penalty’ that can be imposed by a civil court, e.g. High Court, Court of Appeal etc.

57. Employees’ Liability
Employees have general duty of care in common law towards themselves and other people
They can be sued by anyone injured as a result of lack of reasonable care on their part.

58. 'Fellow Servant Rule'
Fellow servant rule is a common law doctrine that barred or reduced the amount of money an injured employee could recover against an employer if an injury was caused solely by the negligence of a fellow worker.
An injured employee had to bring a cause for action against the fellow employee causing the injury, not the employer Workers Compensation laws have nullified the rule for job-related injuries.

59. Employers Liability in Negligence
May be personally liable to employees who injure themselves.
May be personally liable to employees who are injured by another employee or sometimes by an independent contractor employed by the employer.
May be vicariously liable if one employee is injured by another employee

60. 'Master-Servant Rule'
If an employee acts negligently - even if the employer was not aware that the employee was doing so and someone is injured- the employer could face fines or a lawsuit Since the Master-Servant Rule places the onus on the employer, it is important that the employer set the guidelines for appropriate employee behavior.

61. Vicarious Liability
An employer can be held responsible for the actions of his employees causing death or harm to others, provided the actions were committed in the course of employment.

62. Damages
Civil liability may result in an award of damages for injury, disease or death at work in circumstances disclosing a breach of
common law and/or statutory duty on the part of an employer.

63. Damages Types
General damages relate to losses incurred after the hearing of an action, namely actual and probable loss of future earnings following an accident.
Special damages relate to quantifiable losses incurred before the hearing of the case, and consist mainly of medical expenses and loss of earnings.

64. Burden of Proof
The burden of proof in common law case rests on the complainant (plaintiff).
He must show that he was owed a duty of care, and that as a result of the breach he suffered damage,

65. Partial Defence
Partial defense is a defense by which the defendant reduces the amount of damages of which he or she is liable or mitigation of damages. 

66. Summary Judgment
A procedural device used during civil litigation  to  promptly and expeditiously dispose of a case without  trial. 
It is used when there is no dispute as to  the  material facts of the case and a party is entitled to judgment as a matter of Law.

67. Question of law (or Point of law)
If the question is one of law the judge may decide it withoutaffording the parties the opportunity to  present evidence and witnesses to the jury.
Question of Fact
If thequestion  is one of fact, it will be decided by  a jury at trial. 

68. Volenti non fit injuria
[Latin: no wrong is done to one who consents] if someone willingly places themselves in a position where harm might result, knowing that some degree of harm might result, they are not able to bring a claim against the other party in tort .
It is commonly referred to as ‘voluntary assumption of risk’.

69. “ Assumption of risk ”
Is a defense in the law of torts, which bars a plaintiff from recovery against a negligent tortfeasor if the defendant can demonstrate that the plaintiff voluntarily and knowingly assumed the risks at issue inherent to the dangerous activity in which he was participating at the time of his injury.
No duty of care

70. “ Assumption of risk ”
it is a complete defence and no damages would be payable to a claimant in respect of a claim for negligence.
However it is a very limited defence based on the employee voluntarily assuming a risk as part of his normal work activities.

71. “Res Ipsa Loquitur”
A term meaning ‘the facts speak for themselves’ or ‘the matter itself speaks’, a phrase used in actions for injury occasioned by negligence where no proof is required of negligence beyond the accident itself.

72. “Res Ipsa Loquitur”
where there is sufficient evidence that the complainant suffered damage as a result of lack of reasonable care.
The complainant may not have to show exactly how an accident occurs as facts will speak for themselves.

73. WHEN THE MAXIM 'RES IPSA LOQUITUR' APPLIES
There are three conditions that must be fulfilled before res ipsa loquitur applies.
(a) The defendant must have control over the thing that caused the damage.
(b) The accident must be such as would not normally happen without carelessness (c) The cause of the accident must be unknown.

74. No-fault liability
This term implies there is no requirement to establish fault or intent in that a claimant is automatically compensated for injury,
damage or loss by the organization.
It thus dispenses with or disregards the common law and statutory elements of liability.

75. Negligence
‘Negligence’ is defined as ‘careless conduct injuring another’.
In a civil action for negligence, three specific facts must be proved
by the claimant:
a duty of care is owed;
there has been a breach of that duty; and 
injury, damage and/or loss has been sustained by the claimant as a result of that breach

76. Defences under Common Law
Defences under common law can be based on:
There was no negligence
There was no duty owed,
The accident was the fault of the employee
The accident did not result from the lack of care,
The employee contributed to the accident
The employee accepted the risk voluntarily - (Volenti non fit injuria)

77. TORT A tort is defined as a ‘civil wrong’.
The claimant (victim of the tort) sues for compensation in a civil action, and if successful, the defendant has tortuous liability.
The three main types of torts  negligence, nuisance or strict liability , and intentional torts(trespass).

78. Tort
The rule of common law is that everyone owes a duty to everyone else to take reasonable care so as not to cause them foreseeable injury.
Tortious liability arises from the breach of a duty primarily fixed by the law.
Such duty is towards persons generally
and its breach is redressible by an action for unliquidated damages.

79. Stare decisis
A term meaning ‘let the decision stand’, implying the need to stick to the decisions of past cases.
Stare decisis is the basis for the doctrine of binding precedent.

80. Judicial Precedent
Judicial precedent is where past decisions of judges are followed in future cases when the acts of the case is similar.
A precedent may be authoritative or persuasive.

81. Authoritative precedents
These are the decisions which judges are bound to follow.
There is no choice in the matter A lower court, for example, is bound by the previous decision of a higher court.

82. Persuasive precedents
These are decisions which are not binding on a court but to which a judge will attach some importance. For example, decisions
given by the superior courts will be treated with respect in a lower Court.

83. Statement of claim
A statement, outlining the allegations against a defendant, and previously delivered to the defendant prior to civil proceedings.

84. Limitations of OSH Laws
Most developed countries have strong OSH Laws
Most developing countries however have weak laws that are not effective.
The laws are outdated which means workers cannot rely on legislation for adequate protection

85. Reasons for Ineffective OSH Laws
Legislations do not address all categories of work.
Penalties are not sufficient to serve as deterrents
Most legislations deal with only safety and not occupational health

86. There is lack of up to date regulations to back the Acts
Many employers are not familiar with existing Acts, Regulations, Codes of Practice and Guidance notes applicable to their organisations,
Unions, Workers, and Employers are not involved in setting standards and regulations,

87. Acts and Regulations are often written in unclear language and cannot be used to uphold the law.
There are insufficient resources available for enforcing the laws and inspecting worksites.

88. Acts and Regulations are often written in unclear language and cannot be used to uphold the law.
There are insufficient resources available for enforcing the laws and inspecting worksites.

89. Enforcement of OSH Legislation
OSH legislation needs government enforcement in order for it to be effective.
The enforcement is usually done by government inspectors

90. Limitations on Enforcement
Legislations are not effectively enforced in developing countries because:
There are not enough inspectors
Many inspectors have limited training
Lack of adequate logistics for inspectors
Legislations are weak and not enforceable
Most inspectors will visit the biggest factories or those with known health and safety problems

91. END OF PRESENTATION
THANK YOU