The notion of culpa in occupational health and safety

Abstract

This thesis will attempt to determine those persons that could be found culpable for an act or omission that breach occupational health and safety regulations applicable in Malta. Chapter one will provide an overview of statistical data related to injuries and fatalities in Malta. This chapter shall also explain what is meant by culpa and how the courts have defined this term. This will include an explanation of the different types and levels of culpa, including culpa in eligendo and vigilando. Finally, since breach of occupational health and safety laws may lead to both criminal and civil action, a short comparison of the two types of actions will be provided, followed by a chapter which explains the link between the Criminal Code and Occupational Health and Safety legislation, as determined in past judgments. Chapter two will commence with a historical overview of occupational health and safety laws in Malta. This overview will commence with an analysis of the Factories Regulation of 1926 and will move on to analyse the current legislation. The aim of this analysis is to carry out a comparative analysis of who carries and still is (if this is the case) shouldering criminal responsibility for occupational health and safety matters. For this purpose, the current Act and subsidiary legislations will be reviewed to determine who is to be held criminally responsible for breach of OHS legislation. Chapter three will move on to examine the limits of culpability of each stakeholder involved. Since it is envisaged that the employer is mainly responsible for providing a safe working environment for all workers, the responsibility of the employer shall be examined. This will be followed by a definition of the employer and the duty of care that such a role has towards the respective workers. Given that the burden of proof in occupational health and safety legislation is on the accused, this section will examine the question as to whether this system leads to a strict liability approach in OHS cases. This chapter will also examine the extent of liability of employees and whether they can also be held liable for acts or omissions that affect health and safety at the workplace. To what extent is this possible? This chapter will determine whether the courts follow the notion of ‘volenti non fit Injuria’ in their decisions, and/or whether they embrace the principle of contributory negligence. Finally, the fourth chapter shall provide a number of recommendations to possibly change the approach to occupational health and safety with the aim of reducing the number of accidents and fatalities in Malta.