FAJAR INTERNATIONAL COLLEGE

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TOPIC:

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OCC,U'pff I O N AL SA F ETV,, AN, D,:,H,]:EA:,[1,11.,,, ACT,,,:ttUO

Learning outcomes
By the end of this topic, you should be able to:
1.

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3-

4.

f.

understand the main purposes of osHA Lgg4 List 15 parts in OSHA Lgg4 Philosophy and principles of OSHA rgg4 List at least 5 main provisions of OSH Argg+ Analyse case discussions from the perspective of OSHArgg4

SCOPE
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r. BaCkg,round of O,SHA r994

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Content of OSHA t994 ri par,ts o -f the dct Conclusion

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What is OSHA 1994

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An Act to make further provisions for securirg the safety, health and welfare of persons at work, for protecting others against risks to saf"ty or health in connection with the activities of persons at work, to establish the National Council for Occupational Safety and Health, and for matters connected therer,vith.

PREFACE
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February Lgg4with the OSHA was enacted on z5th Fe intent to ensure safety; health and welfare of all persohs at all plaies of Worlt
It was prornulgated based on self regulation concept with pfimary responsibility of ensuring safbty and

health at workplace
Lying with those who create the risks and work with the risks

Responsibility to ensure safety and health in workplace depends on those who create the risks and those with work with those risks. t) Sglf regUlatiOn - "o!o q"r u gra.L'co$b " - ts (r)
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Discussion

$ Cooperatiorr and employee involvement

ARRANGEMENT OF SECTION

15 Parts;

1.

2.
1 )'

4.

Pielirninary Appointmnt of officers National Counc'il'''lbr Safety and Health General Responsibiliry of Employer & Selfemployed
General responsibility on design, manufacturer &

5.

supplier;

6.
7.
B.

General responsibility of employees ;

Safety and health organizations;

Notice on accidents, dangerous incidents, poisons and occupational disease and

rnvestrgatron;
aaa

Prohibition on the use of materials; 10. Industrial practice;

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1r. Enforcement and investigation;

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L3.
1+. 15.

Cri es,and,|,ilhility;
4ppeal;
Re$ulatiofi,si

Miscellaneous.

Part
,[se,ctiion:.i(r).&,(])1,
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Preliminary

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Biief topics & usage

Workers ' "i r: In all economic sectors, specified in First

Schedule; lftoa rrrob,.l u Except^on shipr and military personnel. - golerned by Mercharlt Shipping,.Ordinance 1952, Merchant Shipping
Ordinance 196o of Sabah or Sarawak - armed forces governed by ArmeC Forces Act tg1z - civitrians wo'rliin$,,under Ministry of Defence are coverd under OSI!{ ,gg4 :
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FIRST SCHEDULE

Subsection 1(2)

Factoty;
Minin$,, &, quar{y;

Construction; Ag,riculture, forestry & fishing;

F

Transpoitation, Storage & communication; Wholesalers & Retailers; Hotel & Restaurants;
Financial, Insurance, land property & business
services; Public services & statutory bodies;

Facrlrtres;
Electric, gds, water & health
SCTVICCS;

.1.

Section

Regulations to cou nter

(t) Additional provisions for other written legislation (r)

relating to OSH; Provisional Act to counter provisions which are inconsistent.

Section

Regulations to counter (Example)

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Under the Factories and Machinery Act t967, Factories and Machinery (Asbestos Process) Regulations 1986 and the Factories and Machinery (Mineral Dust) Regulations tg}g,medical surveillance is to be conducted every two years. Whereas under the Occupational Safety and Health (Use -stat and dirds of Exposure to Chemicals Hazardous:to Health) Regulations zooo, they are to be carried out

annually.

Permissible exposure levels under the Factories and Machinery (Asbestos Process) Reguiations 1986 and Factories and Machinery (Mineral Dust) Regulations 1989 differ from that under the Occupational Safety and Health (Use and Standards of Exposure to Chemicals Hazardous to Health) Regulations zooo. The Occupational Safety and Health (Use and Standards of Exposure to Chemicals Hazardous to Health) Regulations 2ooo shall prevail in this case.

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Section 3 : lnterpretation
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Employee

Employees ar workers who are directly employed by the principal employer or through an immediate employer at the place of work or whose services are let on hire under a contract of service.

Pertaining to trainees, the Health ancl Safety at Work Act ry24 (UK) through The Health and Safety (Trainirg for Employment) Regulations 1990 have provided that trainee be included as
employees.

: In Malaysia apprentices

are to be considered as employees. No

mention has been made with regards to trainees. Hence trainee can be considered as other persons at the work place.

Employer

Employer under the Employrnent Act Lg55 means any person who,has entered into a contract of service to employ any other person as an employee.
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' An employei would include the:immediate employei oi the

principle employer or both
. Employers may include owner, developer, main contractor or subcontractor if there is a contract of service to employ any other persons as an employee.

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ction 3: lnterpretation Place of work

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In order to define a place of work for an employee, it is important to refer in which premise he is normally working, for example:
Postman- post office, motorcycle and offices or homes where letters are being delivered. Taxi drivers- taxi statiors, taxi buy, taxi. Ptzzad , boy- ^przzarestaurant, motorcycle, client elivery , house/offices. Meter reader- vehicle, house or office. Roads on which they travel are inclarded as place of work

Section 4: Objects of the Act

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(a) Ensure safety, health and welfare of workers Safety as the absence of risk to injury. Health as a state of complete physical, mental and social well-being and not merely the absence of disease. Welfare of employees would include provision of first aid, drinkitg water, canteen, washing facilities and toilets for men and women.
(b) :Protect safety and health of both workers and oth,ers

o Others persons at place of work include clients, visitors and public

(c) To

and make it compatible with physical and mental needs of workers

o Physiological - working in hot environment o

require

appropriate rest-work regirne Psychological * employee should not be overwork or under work

(d) To establish a rystern oi legislation based on regulations and industrial practice.

Pa

rt ll: Appointrnent of Officers

Section 5: Appointment of Officers Section 6: Appointment of Independent inspectitrg

body Secti on 7 : Certificate of Authorisation

Part lll: National Council for Occupational Safety and Health

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Section 9: Membership of the council Employers represented by the Vlalaysian Employers Federation, Fedbration of Malaysian Manufactu rers and ihe-Malaysian Agricultural Producers Association (MAPA) ; Emolovees reDresented bv the Council of Union of Employee of Public .rd Cdmmertial Sectors (CUEPACS) and the Malaysiair Tiade Union Congress (MTUC); Government reDresentatives comprised of Deputy Minister from the Ministry of Human Resources (who is also the Chairman of the Councif), the Secretary-General of the Ministry of Human Resources, one representative froirr the Ministry of Healt6, one representative from the Ministry of Local Government aird one representafive from the D epartment of Agriculture ; Non-sovernmental orsanisations reDresented bv a representative each from In" Malaysian So"ciety for Occripational Safety ind Health (MSOSH), Uni'-",ersities the Maliysian MedicafAssociation

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Part lV: General Duties of Employers and Selfem ploye$ Persons

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Section ry: General duties employees

of employers and self-employed plrrsiri ro their

(r) It shall be the duty of every employer and every self-employed person to
ensure, so for as is practicable, the safety, health and welfure all his r^ptoys;

at work of

- This subsection provides for the dury of every employer

to

ensure safety, health and welfare at work of all his employees. However in carrying out this duty the terms 'so far as is practicable' has been used.

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'practicable' means practicable having regard

to-

a) the severity of the hazard or risk in question; b) the state of knowledge about the hazard or risk and any way of removing or

mitigating the hazard or risk; c) the availability and suitabiliry of ways to remove or mitigate the hazard or risk; d) the cost of removing or mitigating the hazard or risk;

An example on u,hat is to be consiclered as':i,. far as 1,.',ir--.i,-.;i , :'would vary in different excavation work. Excavation work can be of difFerent depth. It can be deep or shallow. For 3 feet excavation, benchirrg is sufficient and no shoring required. This is because the risk to injury is very low. If the excavation is very deep, benching is not sufficient and shoring is needed to be carried out although cost for shoring is very high. This is because the risk of injury is high due to occurrences like collapse or landslide"

Section 15
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(1) Example I
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.'': , ,tti\ l:::'r'' \'' Case 1: Marshall v. Gotham Co. Ltd [tgf+] AC 36o
The plaintiff was the widow of a man who was l<illed while working in a gypsum mine owned by the defendants. He was killed by a fall of marl flom the ioof oiiire *orking place. The fall was due to 'slickenside] a condition which was unusual anywhere and had not occurred in the defendants' mine for at least z5 years. Theie was no reason to suspect its presence and.the probabilities were all against its occurrence there. Accordingly the roof over working places was inspected darly but no props were used.

Lord Reid held; The only way to make a roof secure against a slickenside fall appears to be to shore it up, and, as the presence of slickenside cannot be detected in advarrce, full protection against this danger would require that every roof under which men have to pass or to work should be shored up or timbered. There is evidence that this is never done in gypsum mines and thaf in this mine the cost of doing it would be so great as to -"L" ih" carrying on of the mine impossible.

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Section 15
Case z: Edwardsv.

(1) Example 2
\(

National Coal Board lrg+gl r I(B 7o4

Lord Justice Asquith states:

"Reasonably practicable" is a narrower term than "physically possible" and implies that a computation must be made in which the quantum of risk is placed in one scale and the sacrifice, whether in money, time or trouble, involved in the measures necessary to avert the risk is placed on the other; and that, if it be shoivn that there is a gross disproportion between them, the risk being insignificant in relation to the sacrifice, the person on whom the du$ is laid discharges the burden of proving that compliance was not reasonably practicable. This computation falls to be made at a point of time anterior to the happening of the incident complained of.

Section 15
Case 3: Associated Dairies r.. Hartley

(1) Example 3
ltrypl I.R.L.R r7r

How can the employqr d,iscover what the law requires of him? Everyone has his own ideas of reasonableness, but even judges disagree. First, he can consult test cases to .r(identifii the factors whicfthe courts will consider material. Cost benefit analysis plays an important part. ffi one case, an inspector ordered ASDA Stores to provide safery shoes free of charge for all its employees working in warehouses, as a precaution againsj having a foot crushed by a'loaded roller truck. This would have cost f,?o-+ggo- in the first year and ro,ooo in each succeeding year. The company already provided safety footwear at cost price. There had been ten accidents in thl previous year involving roller trucks in ASDAs 66 storeglTfre industrial tribunal disagreed with the inspector on the ground that the expense was disproportionate to the ris\
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Section 15
Case 4:

(1) Example 4
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Rimsey Uin6] IRIR 95

Harrison (NewcaStle . under.Lyme)

A notice that an employer should comptry with his obligation under the Factories Act to paint his walls was upheld, despite the absence of any danger to health and the company's financial difficulties. There is more scope for argument when the employer is obliged to do that which is reasonably practicable and there is no Approved Code of
Practice.

Section 15 (2)(a)
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out prejudice to the generality of subsection (1, the ma tters to:which the

the provision and iaintenance of plant and systems of work that are, so far : as fs practicable, safe and with,ouf rfs/<s to health;

Homework:
1. Provision

z, I\1[aintenance 3. Plant

+. Safe system of work -

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b)

aruangements for ens,iring, so far as is practicable, safety and qbsence of risks to health in coninection with the use or operation, handling, storage and transport of plant and substan ces;

the making

of

Example of making arrangement can be seen in usin$ a forldift. There must be procedures on how to start, handle, transport, and store the forklift after using it. Training must be provided to make the employee familiar with the task carried out and the evidence of the training such as license or certificate of competency is very important. Employer should do an inspection and audit on the arrangements. Finally employer must enforce the arrangement to ensure all employees follow the requirements

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Case r: Wright v.

Dunlop Rubber Co. ItgZrl

13

KIR 255

The employer must also make arrangements for ensuring, so far as is reasonably practicable, safety and absence of risks to health in connection with the use, handling, storage and transport of articles and substances. He must provide such information, instruction,.training and supervision as is necessary to ensure, so far as rs reasonably practicable, the health and safety at worl< of his employees. He must maintain and provide a working environment for his empioyees that is, so far as is reasonably practicable, safe, without risl<s to health, and adequate as regards facilities and arrangements for their welfare at work. It is arguable that this could oblige the employer to provide medical or nursing services in a particular case. The civil courts have held that an employer who failed to institute regular examinations of his employees who had been exposed to carcinogenic substances failed in his common law duty to take reasonable care, despite the lack of any specific statutory obligation.

Section 15 (2)(c)
32,:

ision of such informatlon, instruction, training on!-supe-rvision as is necessory to ensure, so far as fs practicable, the safety and health atwark of his employees;

An example of information, instruction, training and supervision in a laboratory are as follows. Laboratory workers are exposed to numerous chemicals. Provision of information such as CSDS, safe working procedure, emergency procedure and effbct of these chemicals must be made known to employees. Instruction such as direction on dos' and clon'ts in laboratory is importani for e*ample no smol<ing in the lab. Training on handling of chemicals must be provided. Employers must keep the evidence of trainirg. Supervision by the employers ensures employees
follow the procedures in the laboratory.

Section 1s (2)(d) & (e)

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d)

so far as is practicable, as regarat iiiy place of work und.er the control of the employer or self-employed person, the maintenance of it in a condition that is safe and without ris/<s to health and the provision and maintenance of the means of access to and egress from it that are safe and without such ris/<s;

e)

the provision qnd maintenence of a working eiviron^rn, for his employees that is, so far as is practicable, safb, without ris/<s to health, and adequate as regards facilities for their welfure at worl<

Section 77 (t)
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r7. General duties of employers and self-employed persons to persons other

than their employees

(r) It shall be the duty of every employer and. every self-employed person to conduct his undertaking in such a manner as to ensure, so far as is practicable, that he and other persons, not being his employees, who may be fficted thereby are not thereby expased to rfs/<s ta their safety or heqlth.

An example of duty of employers to person other than employees would include the hospital. There are many visitors to hospitals. These individuals are at risk by exposing themselves to patients with communicable diseases. The hospital authority needs to reduce exposures as low as reasonably practicable. They need to have full proof procedure to control people entering certain sections of the hospital for example the:xray department by providing signage and restricted access. Measures to reduce the risk for example from Tuberculosis (TB) and Severe Acute Respiratory Syndrome (SARS) will U" different because the risks involved are different.

Section 18
18. Duties of an occupier of a place of

work to persons other than his employees

Example ftre of an occupier can be clearly seen from ,n" example of an operator of a fast food restaurant with a play area in a ihopping complex. It is the responsibility of the operator of the fast food restaurant (oc."pi"i) to make available signage on the requirement of an adult to accompany children in specific age groups. The employer would also need to inform the employees about activities g&"E on in the play area. Regular maintenance of that area needs to be carried out to ensure the safery and health of visitors. If he does not do anything and an accident occurs, he will be found liable. =tr ;;;rh.r ;;;;;* an occupier of an apartmenr block with domesric premises. Domestic premises wo,uld be premises occupied as a private dwelling (including garden, yard, garage) which is not used in common by ihe occupants o? more than one such dweiling. Non domestic premises are premiies other tir"., this. A lift in a block of flats, corridor and staircases have been held to fall within the definition of non domestic premises since they are used in common by the occupants of more than one private dwelling. Hence here the occupier is responsibl" on safety of the cqlmon areas:

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Section 19
r9. Penalty for an offence under section r5, 16, r7 or r8

Under this section it is useful to urrderstand the term jpersoni In the Interpretation Acts 1948 and 1967, person is defined as "person" includes a body ofpersons, corporate or unincorporated: Therefore la person includes:

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natural person . body corporate e.g company . unincorporate e.g sole proprietor or partnership . Hence the natural person, body corporate and unincorporated can be found guilryand liable to fined.

Part

V General Duties of Designers,

and Suppliers

Manufact
Section zo
West Bromwich

Building Societyv. Townsend [rg83] ILR

z5Z

An environmental health officer served an imDrovement notice allesins that a building Society was in breach of its dutv to do what "*ai pra-ticable [o protect its employees asainst robbers. It was reasonably -fit ordered tb anti-bandil screens. Th^e tiibunil in confirmins the notice disregarded evidence that there was a difference of professTonal o,pinion about the value of such screens. on appeal to the uigh Court, the improvement notice was quashed.

Note: This case also related Section r5 and Section 3z OSHA 1994. But under OSHA 1994, the Appeal Comniittee decision is final.

16\
Section zo

Wrightv Dunlop Rubber Co Ltd [r9zz] r3 KIR 255

The action can lie against architects, distributors, retailers, repairers and

second-hand goods dealers. To be able to sue in negligence, the employee need not be using the plant, equipment or substance it is enough, for ample, that the use of a dangerous substance by a fellow employee exposes the employee to disease.

Example

of responsibility of the designer would be an industrial

health. The design for the machine is then given to the manufacturer to be used. The manufacturer than must ensure that the machine manufactured is safe and must have research done to ensure that the machine would
operate safely.

designer is required to design a machine that is safe and without risk

to

If the manufacturer cannot ensure that it is safe, he must inform the

employer what to do to ensure the machine is operated safely and without risk to employees health. If the employer doesn't follow the instruction, the employer is then liable.

Section z3
Body of person or body corporate or unincoi'porated who fails to comply

with these provisions shall be guilty cf an offence and shall on

conviction, be liable to a fine not exceeding twenty thousand ringgit or to imprisonment for a term not exceeding two years or to both.

Part Vl General Duties of Employees

Section z4
This section provides for general duties of employees at work. These duties bear criminal sanction for non-compliance and therefore an employeewho fails to complywith it may be prosecuted.
The requirement to discharge reasonable care would vary according to the status of the employee. The unskilled employee could be liable for intentional dangerous activity at work while the senior manager would be liable for professional judgment. Duty of reasonable care would be judged from his level of training and is to be based on the standard of reasonable care that is to be expected from the person.

Hamzah D4g4 & Ors v Wan Hanafi bin Wan Ali [rg75l r MLI zo3
Wan Suleiman FJ: In ordinary circumstances, or where simple operations are being performed, persons are not as a rule required to guard against every conceivable result of their actions, nor are they bound to exercise scientific care or to take extravagant precautious. They must

have regard both to the probability of injury resulting, and to the probable seriousness of the injury. They rnay weigh the cost and the difficulties of the precautions. They are in general entitled to assume that others will comply with statutory regulations.

Refer the attach example.....

Section z5
A person is not to intentionally interfere with or misuse anythins that has been provided in the interest of health, safery and'welfSre of employ-ees and other persons at work. Misuse'can applv both to olani and substance as well as system, procedure and iule's. person'here includes natural persons, bbdy coiporate o. .tni"io.po.uGa. u;Ja;
this section the teims'intentionallyl^'recldessly' u"d to be understood.

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. Intentional: Done on purpose. ' Recklessly: Regardless of consequences or danger ' Negligently: Lack of proper care or culpable carelessness ' Interfere: I\4eddle, intervene, obstruct or be an obstacle. ' Misuse: Apply to wrong purpose or improper use. ' Refer the attched

Section z6

The employer must not charge his employees for providing personal protective equipments or other requiremcnts of the law. For example the employee cannot be required to pay for
personal protective equipments (e.g. safety boots, goggles, face . mask, gloves or safety hehnet) and employees welfare facilities (e.g. first aid box).

Section z7
(r)An employee shall not be dismissed or be subject to a demotion if he makes a complaint about safety and health matters at the place of rn'ork or when he exercises his functions as a member of the safety and health committee in the workplace. (z)Trade union must not take any action on its members who carry out their functions as a member of the safety and health committee. This is to allow the employee to carry out their fiunction as a committee member independently.

Part Vll Safety and Health Organisations

@
Section zB

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Medical surveillance - rnonitoring of persons for the purpose of identifying changes in health status due to occupational exposure to chemicals and other substances which are hazardous to health
Guidelines

- USECHH Regulations

2ooo

Medical surveillance - conducted by an occupational health, doctor who trained in Occupational Health and are registered by the Director
General

ffi
Components of medical surveillance programme include: a) Pre-employment and pre-placement medical examination. b) Biological monitoring and biological effect monitoring. c) Health effects monitoring. d) Investigation of occupational disease and poisoning including workplace inspections. e) Notification of occupational disease and poisoning. f) Assist in disability assessment. g) Return to work examination after medical removal protection. h) Record keeping and monitoring.

Section z9

Safety and Health Officer

Section 3o - Safety and Health Committee Section 3r - Function of Safety and Health Committee

Part VIll NADOOPOD and lnquiry

Section 3z

r r

When should notify?

Dangerous Occurrences include:

r. Collapse, overturning or failure of load-bearing parts of lifts and lifting equipment; z. Explosion, collapse or bursting of any closed vessel or associated pipe work; 3. Failure of any freight container in any of its load-bearing parts; 4. Plant or equipment coming into contactwith overhead power lines; 5. Electrical short circuit or overload causing fire or explosion;
6. Any

unintentional explosion, misfire, failure of demolition to cause the intended

collapse, projection of maierial beyond a site boundary injury caused by an

7.

explosion; Accidental release of a biological agent likely to cause severe human illness; 8. Failure of industrial radiography or irradiation equipment to de-energize or return

to

its safe position after the intended exposure period;

Malfunction of breathing apparatus while in use or during testing immediately before use; ro. Failure or endangering of diving equipment, the trapping of a diver, an explosion near a diver, or an uncontrolled ascent; u. Collapse or partial collapse of a scaffold over five meters high, or erected near water where there could be a risk of drowning after a fall; rz. Unintended collision of a train with any vehicle; r3. Dangerous occurrence at a well (other than a waterwell); r4. Dangerous occurrence at a pipeline; r5. Failure of any load-bearing fairground equipment, or derailment or unintended collision of cars or trains;
e.

16. a road tanker

carrying a dangerous substance overturns, suffers serious damage, catches fire or the substance is released;
released;

lT.Adangerous substance being conveyed by road is involved in a fire or Unintended collapse of any building or structure under construction, alteration or demolition where over five tones of material falls, a wall or floor in a place of work, any false-work; r9. Explosion or fire causing suspension of normal work for over z4 hours; zo. Sudden, uncontrolled release in a building of roo kg or more of flammable liquid, ro kg or more of flammable liquid above its boiling point, ro kg or more of flammable gas, or of 5oo kg of these substances if the release is in the open air; zr. Accidental release of any substance which may damaee health.
18.

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GuideLittes ctn'Occupational Safer.t' crncl Health Act 1994

Abdul Rahim b. I\/iohanlad v Kejuruteraall Besi Dan Penrbinaarl Zaman Kili tf99gl I\{LJ 323

This is a claint 1'ol'clanragei arising out of an accidenr u,hich occurred \\'hile tle plailriff u,as czrr1;ing out repair tvorli to the ceiling of the schclol hall of Sel<olah lr4enengah saLins. Clreras. Kuala Lurnpur. Tlie facis malr be brieflt'stated as I'ollorvs. Accoi'ding ro rhe plainriif. ip the morning of 21 April 1992, he u'as asked b)' th. defendant to go to the. Sekolah Menengah Sains, Cheras to do some repair u'ork to the ceiling of the sclrool hall. He u,ent thel'e u,ith t\\/o co-\\,orkers. nanrel5'Fauzi bin Ariffin ('SP3') ancl Abdullah bin Hassan ('SB2'). On arrival, tire three of theni put up the necessar), scaffolding to carr),out tite u,orli. Soon after that. SP3 left the place leaving the piaintiff and SB2 to dci tire u,ork. On the clal in question, file pieces of the scaffolds \\'ere used, eirch one n,ith a height of -1 feet, so the total height of the scaffoldirrg u,as around 20 feet. At the top of the scaffolding. ther-e u,as a ntetal platforrrt for the u'orker to sit on u,hile attending to the lvork. Tlrere \\/as no railins arouttd the plarforrn. There \4'as a gap of about I foot bettveen rhe ceiling arid the head of the u,orltman seated on the platform.

\:tr

/:;.,

While the piaintiff tt,as on top of the scaffoiding, ire requested SP3 to push the scaffolding to another part of tlre hall, As SP3 lvas pu.siring the scaffoiding. rlre plaintiff said, it srartecl Lo shake so he held on to the platforrn. He then told SP3 to slou'dou,n and SP3 replied bt'telling hirrr to be caleful. When he tirought tirat the scaffolding \\'a-s about to tun'tble,5e .junrped tou'ards ilte u'all u'here there \l'as a u,ooden box and tried tcl hclld on to the box, but the box gii\/e \\'a\'. rd he fell to rhe floor. At about the same time, rire scaffolding tumblecl to the floor. Going back to the scene of the accident. SP3 told the court that rvhen he \\1as about to push the scaffolding, he asked the ptalntiff to come dou'n but the plainriff refused ro dct so. He sa\\r the plaintiff sitting at the edge of the platfornr on the side close to the u'all of the school hall. SP3 further told iire court that u,hen he pushed the. scaffolding. ir srarled turning and after that it fell to tire floor. At about the sarne time, he also sau, the plaintiff fell to the floor close to the u'all, The otlier e),e\,\'iLness, SB2, ga\/e a slightil, different version of the accidenr, Fie rold the court that after the plaintiff had finished u,or.kin,e in one part of the ceiling, the piaintiff asked SP3 to pusir the scaffolding to another area. FIe and SP3 then rold the plainriff to come dou'n first before SP3 push the scaffolding but the plaintiff toid SP3 thar he u,ould hang on to Lhe u'ooden bor on tlre u'all u'hile SP3 push the scaffolding. When [he plainriff attempted to do so. he said. the u,ooden box ga\/e u'ay and that had prompted the plaintiff to jurlp back onlo the plaforrn and as a result the scaffolding tumbled. He said ihe plaintiff onll,manage to hang on to the box for less than tu,o minutes u'hen the box ga\/e \^,a)'.
The plaintiff clajms that the personal injurl'suffered b),hinr arose out of the negligence of the defendanl. The particulars of the defendant's negligeltce lr'ere stated as follo'vvs:

(a) Gagal untuk menl'ediakan ternpat kerja )/ang selamat Iiepada plaintif; (b) h4endedahkan plaintif kepada risiko kecederaan )/ang mana defendan telah tahu
sepatuttil:n
1u1',r;

atau

16

JDl 1802.i TBk 3 76

@,

9122i07 1:O9:'13 PLlt

/ti\ \:t

Cttidelines on Occupational Sa-[e4' and HeaLth Act ]994

(c)

Jt4eni,edialiau sc'affolding t,ang tidak selamat untuh kegunaan

plaintif u,alaupun defe,ndan telah rairu bahau,a alat tersebut tidak selanrat untuii digunakan dan tidak berfungsi
dengan senrpurna;
kepada

(d) Def endan gagal untnlc menvedialiar: alat-alatan keria )/ang sempurna dan sesuai plaintif untuk menialaniian kerja-kerja yarlg diarrahkan oleh de{'endarr.

It is

submitted

for the plaintiff that bl,reasons of the above, the defendant had committed

breaches of- both his c,ommon lenv and statutorl'duties, u,hich the defendarlt as an employer ou,ed to the piaintiff.

subrnitted on behalf of the defendant that according to the testimonies of SP3 and SB2. the norrnal procedure is for the n,orker to come dou'n from the scaffolding before it is pushed to anotlier part of the hali. \\rhat had happened here u'as that the plaintiff, after finishing u'ork in one part of tire ceiling, refused to come dou'n from the scaffolding de.spite being asked to do so b1,SP3. it is conLended that the plaintiff's refusal to come don,n from the scaffolding \^,hile the sarne u,as being pushed bi,SP3 constitutes a negligent conduct orr his part. The defendant also drau's my attentiort to s 24(1) of the Occupational Safetir 2p6 Health Act 1994 u'hich provides:

it is

(l) h sliall be tlie dut5' s; ever)r emplo),ee u'hile

at u'orkpersons

(a) to take reasonable care for the safetl'and iiealth of himself and of other n,ho may be affected bY his acts ot' omissions at \\1ork;
Gj

(d) lo compl)' u,ith any instruction c)r measure on occupational safet)' and health instituted b)'his empio,r/or or anl'other person b1,or this Act or anli regulation
made thereunder.

L.l

It is alleged

that the. conduct of the plaintiff here u,as also in breach of s 24(1)(a) and (d) of the Occupational Safett, and Health Act 1994 and such breach of statutor5' dut1, b1' the plaintiff as much as anl/ carelessness, amounts to c:ontributorl'negligence on his part.
Zakarta J held:

Arilin

"A[ col]lnon lau', a rnaster is under a dut1,, arising out of the relations]rip of masler and servant. to take reasonalrle care for the safety of his u,orkpeople in all the circumslances of the case so as not to expose them to unnecessar)/ risk llaving perused rhe evidence, I agree
u,ith the submission of learned counsel for the piaintifi'that the defendant failed Lo corriply u,tth both his cornrnon lau'and st.atutor)/ obligatiolls [o ensure the safet)/and lvelfare of his empiol,ees u'hile carrying out the u'ork on the fateful da1''

I find that there \4/as a breach of regulation 14(1') of the Factories and Macltinery (Safety and He,alth and Welfare) Re.eulations 1970, since no designated person \^'as appointed to supervise the erection of the scaffolding. The scaffolding r.vas also t'tot adeqr'ratell'secured to prevent mo\/ement as required b1,reg 77(3)(c). There is also no evidence to shotv that the scaffolding had been inspected b)'u designated person ra,ithin the preceding se\/en da1,5 ut r lequired b1,reg 85(1). The scaffolding'n'as also not pro\/ided u'ith guard rail and toe-board as .-, required by reg 88(1). Furtlier, I find there is no proller supervision b1' a competent person of
Firsr.

7'7

I
I

JD1 i Bo24

ek

7'7

1:09:13

errl
i

RT

Gttirlclitres otr Occupational Safen, and Ht:alth Acr

l99l

tite u,orli to ensure tirat all the safet\: nteasul'es \\,ere beilg conrpliecl'q:ith [),the epiplo\/ees. Had there beett proper supen'ision. I arn sure the plaintiff \\,oulcl not be allgri,ed to renrain olt top of the platform u'hile his co-u,olker \\,as pushing the scaffolding.'lIo,n,e\/er, in nt), _ opinion, reg 12 of the Factories and Machitrerl,(Safet),, Health and Welfare) Regulations 1970 is not applicable to this case.

--Having regard to the c.ottduct of the plaintiff in this case, I arn inclined to agree u'ith tSe defendant that the plaintiff is partl),to blanre for the accjdenL. The piajntiff ought to hai,e Itnou,n that. [r1'remaining on the scaffolding u,liile the same \\/as being pushed, he \\ras erpclsing liimself Lo the unltecessarv rislr of injurl'to himself shoulcl the scaffoldino \\,ere to collapse or fall for some reasons or other. The conduct of the plaintiff also. as subnritrecl b)' the defendant. constitutes a breach of s 2a(l)(a) and (d) of the Occupational Safery and Flealth Act 1994. For the abot'e reasons. I am driven [o tire conclusion that there rvas contributorl, negligence on rlte part of the plaintiff
.

Section 25: prot'isions.

Dutj'not interfere u'ith or rnisuse things provided pursuant to certain

IntentiorruIly. Govinda Mudaliar Sons GovindasamJ' lL967l 2 MLJ 5 Gill J: An intention to my ntind connotes a state of affair u,hich the part)"'intending".... does more tltatt merell'contemplate: it connotes a slale of affairs u,]rich. on the contrarl,, he decides, so far as in hinr lies. to bri'rs about. and s,hich. in point of possibiiitr'. he has a reasonable prospect of being able to ring about, b)'his os'n act of volition.

-:

Rccklessll,.

Yap Liov' See v Public Prosecutor [1937] MLJ 225. Tire u'ord 'recliless'connoLes a posrtive, active, menLal conditiorr, a cerLain u,ilfulness, conscious disregald of c.onsequences in doing an act.

h'cgligently Anthou'sam5' r' Public Prosecutor [1956] I\LLJ 247 The test for derertnining uegiigence is u'iretirer a reasonable man in the circumstances u'ould have realised the prospect of harm and u'ould have stopped or changed his course so as to avoid it: the t.est is the sarle in tort and'criminal intention'or 'rviclted mind' are immaterial. Section

28:

Dut.r' to provide healtlr sun'eillance

\\/right v Dunlop Rubber Co. L1972) 13 KIR 255 Enrplot,e. ,'an be held civillr, liable at common lan'for failing to introduce health surveillance e.r,en in ti.'e absence of specific slatuLor),regulation. Tlie ernploi,ers used an anti-oridant called Nonox S in their process. ICI, the manufacturers, then discovered that it c:ontained
fr:ee belanaphthl'lanrine. a

it, In 1960 a circular from the R.ubber Manufacturers Entplo)/ers'Association \\'arned that all enrplo\lees r.r'ho had been exposed slrould be screened and tes[ed for b]adder, cancer, a
disease u'ith a long latencJ, period u,hich can be successfullS, ,r"ut"O if caught stage. Dunlop stopped using Nonox in 1949 but did not introduce urine tests

knos,tt carcinogen and nou,a prohibited subsLance, and u,ithdreu'

in the earll' for ra,oriiers

7B

Jrt.

talz,

-Ik

78

1:09:13 PlVi

ft* v

Guidelinet on Occupational Safe4, and Health Act 1994

until 1965. Onlt'then u'as it discove,red that the plaintiff had cancer of the bladder (hundreds of other cases subsequentll,carne. to light). It \\,as held rhat in addition to the liabilitl, s1 the nranuf'actnrer the ernplo)/er \\ras liable in negligence for lailing
tr,lto ltad been exltosed

to institute tests quiclcll,enough. This should have been done in 1960. At that time there \\'as no statutory obligation (it \\,as later introduced b1' the COSHH Regulations,lgSS).
Note: Section 28 of OSHA 1991 is equivalent to Regulation 5 of the Managenrent of Healrh at Work Regulation t-c)92(UK). This case also related to S. 21 of OSHA 1994.
Sec.tion

48: Improvement and prohihition

notice

ANI Engineering v Bolton [19E7] 3 \rIR

76.

The Industrial Relations Commission of Victoria

r,r,as called upon to interpret the expression "inrmediate risk" in section 44 of the OHSA (Vic), an expression u,hic.h is alscl found in some of the other statutes. The Comrnission stated that:

(s

"In our t,ieu' [here is no 'standard'level of risli against u,hich the acceptabilitl'of a prohibition notice can be deterrnined, What is an'acceptable'risk u,ill depend upon tlie nature of the threat. An inspector and this Comrnission on appeal u,ill need to make a judgment r,r,hich involt,es a consideration of the. risk and the nature of the potentiai detriment. Llndoubredly this nrav be a difficult task on occasions, but similar difficulties are not unknolvn to the lau,. One rnal'envisage circunrstances x'hen an activit),u'onld be prohibited even though the risli is extremell small....
Under s 44(1) the risk is to be immediate. In our vieu,' 'immediate' does not relate to the degree of risk associated the u,orli in question. Rather, it is concerned u'ith 'n,hether the risk associated l',,'ith the u,ork i.s present. or very nearll' so. It is the exposure to the risk u,hich is to be immediate. Note: S.48 of OSHA 1994 is equivaient to S. 44 OHSA Victoria. Australia).

79

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COURSE TITLE:

_ffi

FAJAR TNTERNATTONAL COLLECE

osH

LEGTSLATTON (OSH
TOPIC:

104)

OCCUPATIONAL SAFETY AND HEALTH ACT 1994

(Note lll)

SECTION IX: PROHIBITION AGAINST USE OF PLANT OR SUBSTANCE

(Section 35)

. .

Power of Head ofSHC;

Getting advice from Government departments or other relevant bodies;

(Section 32)

'

Appeal

SECTION X: INDUSTRIAL PRACTICE

(Section 37)

. . . .

Approved by Minister;
Can be amended;

Contain codes, standard, regulations or safety and health specifications and requirements; Can be used in proceedings; (Section 38)

SECTION XI:
EN

FORCEMENT AND INVESTIGATION

(Section 39)

. . . . .

Director General;
SHO;

Approval Certificate;
Power to enteL inspect, investigate and take samples, etc;

Prohibition Notice and Repairs; (Sctn ag)

SECTION XII: LIABILITY ON THE CRIMES

(Section 51)

. . .

General Penalties

Maximum RM10,000 or One year imprisonment;

Repeat offences

maximum RML,000 per day

SECTION XII:

LIABILIW ON THE CRIMES

.
Who can be discharged?

Corporate bodies and Company Director, Manage4 Secretary or others; (Section 52) Union; (Section 53) Agent; (Section 54)

SECTION XII: LIABILITIES ON THE CRIMES

(Section 55)
Defense during the proceeding

No knowledge on the crime;

Committed without permission;

Carry out the necessary steps to prevent the

crime;

SECTION XIII: APPEAL

(Section 53)

. . . .

AppealCommittee appointed by the Minister;

Chairman of the Council;
Two others;

Appealon section 36 or 50;

SECTION XIV: REGULATIONS

{Section 66}

. .

Minister given the power to establish rules/regulations; To control or prohibit;

SECTION XV: M ISCE LLAN EO US

(Section 67)

. .

Confidentiality
Penalty maximum RM20,000 or 2 years imprisonment or both;

MAIN PROVISIONS USECHH

. . . . . .
lntroduction ldentification of chemical hazards on health
Exposure Limit Permissible
Risk analysis on health

Steps to control exposure Labelling and relabelling

MAIN PROVISIONS USECHH

. . . . . .
lnformation, direction and training
Exposure supervision

Health supervision

MedicalTransferProtection
Warning signs
Record keeping

-.;i:

i ,', , .,,.1i,.Nr..,,,r*-,

UMAN RESOURCES

DutyTc Provide safetyAnd Health Precautions At work'so FarAs ls practicable':

To What Extent This

lfe OSH Legislation? The

BV Dr. Rozanah Ab

Limitation Exonerates Employer From Strict Liability Offences Under

RahtIan, Lecturet in Law, [acLrll5,'ol Ecorrornics arrcl lVtanacyerntent [Jniversiti Putr';t lVtala,,siri

lre itnportanl dut1, i1r',trurec1 L.rpon

the enrployer bl,tire Malaysiarr

occupational .safet1, a ncJ l-realtlr (OSHt leqislation is the general clLrty to
ensLrre;so far as is practicable, the safety, health and urelfare of allhis employees at ,rorl< (Section 15(1),CSllA 1994). fhis duty
i-s

I
lir

be referrecl to in ord,:, to understarrcl the

a

p pli

catio n of th e a br,, re test, tlr e

la ln,

r_

ase:,

decidecl b;, the Cr.rL1-t or lribunal irr Enqland will be relrrred to in orcler trr evaluate the attitrrdr: of tlre Court in
deciding wlretlrer ()r nol sometlrinq was practicable. Though the decisiorr of the
Coirrt orTriburral in Irrgl.rncl cloes not bincl

one of strict liability, sul:ject only to the

ca bi
I

defe nce of 'pra cti

ityiTh us, tlr e plr ra-se 'so far as is practicable' is the important

tlre Courts in

Iirritation attacheclto this duty Lrndertlre

Occupational Safetl,and Healtl-r Act 1994 (OSHA Act) and this expression is used so

lr4al;rr,-sia, it wnuld be of particular reference rn tlre interpretatiorr of tlre statute in Mal ,\,sia,

frequentlV to qualify 15e standard of

performance required by the duny,

What is meant by'practicable'?

Under the CSI'-lA 1994, the word 'practicable' means practicable havinq
reqard to:

To do what is pracli able involves more than takinq reasonar ,ie care,'Practicaltle' means that which ir; feasiLrle, that which carr be done. As Lorcl rloddard said in the case of Lee t, /Vurser t, Furnishinqs Ltd,', "'Practicable'i-s defirred in the Oxforcl Dictionary as'capable lf beinq carriec1 out i n acti or-r' or'fea si ble"j

the severityr of the hazard or

question;

ri-si"r

in

* the state of knowledge about the i-razard or risk and any way of
removing or mitigating the hazard or
ris k;

Practically,an employer wlro starts his dav at worli slror:lcj asi,l irirnself the followinq
q u e st i o n
s
:

for example, tlrere is a large unfenced hole,it wilI usually be'practicable'to fence ot'cover it rlnless it is beinq used at the time, and even if it is in use a fence does
lf,

not becorle impracticable

because it ir inconverrient.
Take for arr

merely

\A/l'r

at a re

tl-r

h a z a rd -s/ ri s

ks t lr at

c *

the availability and sLritability of ways to remorre or mitigate the hazard or

rrsk;and

the cost of removinq or mitiqating the

hazard or risl<. (Section 3, OSHA 1994).

encoLrntered at rnir workplace? Do have aF;r f1n6*ledqe abor-rt tlre hazards/ risks, and do I l<rroltr tlre ways of regnoving or rnitigating the hazarcis/risl<s? /tre tlre ways available ancl srritable? What are tlre costs that I lrave to bear in rernoving or mitiqatirr g surch lrazard/risl<?
I lrave
I

xdmple,the case of Street and Another v British Electrrcitlr Authorit)' and Othersz.lt inras said on behalf of the first defendants that it was not practica[rle to have a guard or a fence to all oper"rinqs in floors under s.25 of the [.actories Acl,'1937.

The phrase'so far as is practicable'has tlre

effect of permitting the employer to

conduct a cost benefit analysis in respect of his safety and health systems. lt allows

After a compr-rtation is macle, if tlre

employer finds th.rt tlte costs of removirrq or mitigating tlre lrazard/risk ourtweiglr the advantages of providinq the safety and healtl"r precautions, nrLtst he then provide tlrose preca uti ot-r s? Obvio Lr sly, tlre ernployer may tell lrimsell I atl not Lrnder a dtrtlr to take tlrr:se precauttiotrs.

The learned jLrdge accepted that

submission On appeal,Sirrgleton [-J.said "l do not acr..ept the learned judqe's view
:

that it was impracticable eitlrel b),the

arry, otlrer reason. lf tlrere is a 1-riace of this kind irr works by which it is known tlrat n'ten pass freq u ently, scrn eo n e o lr q lrt, I th i n l(, to ta ke ste;:s to put r-'p some sort of a guard.I do believe it to be important, in t[re intere-sts of employerrj,)nd worl<men,....in m1' r'iew, the dutyr cre;rled by s.25,if it exists,cannot

tlre employer to calculate wiretlrer tlre benefjts afforded by the addition of

certain safety and healtlr procedures are outweighed bythe costs (in term-s of time,

nature of tlrt: work or for

inconrrenience, money, etc.) of those additional procedures, lf so, in theory, those precautions need not be tal<en.

Application of the'Test'
of 'Fra ctica

Tlrus, the Court lras

to tal<e into

bility'

consideration all of the above factors in

order to establish whetlrer the action

taken by the employer. is practicable or
not.

5ince tlrere are nc) reporte.-l local caselaws ir-r the referred larn, journal that can
aA ('t

be met by sayinq:"Well, it was not very conrrenient'llhose are not tlre worris of tlre section.

3rt

rslei' rrilrlers ..)\t:Ftrr ?atrli

Possible Safety Measures Yet to be Known and/or lnvented

lrr Webster's Dictlonary, practicable is defined as possible to be accomplished with known means or resources, Thus, to be practicable,a measllre must be possible in tl're light of current I<nowledge and invention.The defendants cannot be held liable for failing to use a method which, at the material time,lrad not been invented.

had failecl to provide exitaust appliances,

although tlre nature of the process rnade it practicable so to do.The Court heid that
since at the tirne when the plaintiffbrecame

serioLrsly affected witlr silicosis, tlre dust emitted in the process of knocking out was

notice, it offered its employees a credit facility to buy safety footwear for {1 per weel< each (the irnprovement notice had stipulated free footwear). The cornpany had decided after a cost/benefit analysis that it was not reasonably practicable to
provide tlre footwear free of cha
rg e. Later,

not knowrr to be injurious, that s. 47('l) whiclr imposes an obligation to take tr)easures to prorect en]ployees agalnst
dust which is likely to be injurious did not impose a statutory dr-rty on the def-endarrts to protect tlre plairrtiff against this dust. As

an accident happened at one of the

company's premises when a roller trucl< injured an enrployee's toe. He had not purchased and was not wearing safety footwear. Only six of the staff at the premises concerned had taken up the firm's offer,The outconle of the case was that the firnr argued that 1t!{_4_ted in accordance with tlad-g.ptgctice and hqd dorie enorgh to-uronstrate what was
reasonably practicable.T[re Judge
ag

It is sigrrificant to refer to the decision in

such,

a defendant cannot be held

the case of Adsett v, K&L Steelfounders

Eng i neer s, Ltd.3, inwl-iich tlr e Cou rt
h

& eld th at

blameworthy for carrying on processes where it is impossible to institute any

effective safety measures because the law
impossible.

in deciding wlrether all practicable

measures had been taken to protect the plaintiff against the inhalation of dust,

does not compel a man to do the

Proving The Offence
The proof that a certain n'teasure was not practicable is an essential ingredient of the offence under the 05H legislation and this

reed

regard must be had to the state of knowledge at the material time, and,
particularly, of those scientific experts. On the facts of the case, the defendants had taken alltreasures which were practicable before and irr 1942 and, therefore, they were not in breach of their statutory duty.

with them,
Eventually,the question what precautions (if any) ought to be taken in a given case is always a question of fact, lt will be for the court to decide as a question of fact,

burden falls to the clefence. Hence, in

based on the evidence that can

be

ln this case, the workman wlro was

returning from his lunch to his work at the nintlr bay fell through the open space in the seventh bay and was killed. Lord Justice Singleton stated in his judgment:

prosecution case,the prosecutor will allege, in relevant breaches of legislation,that the defendant (employer) lras not done allthat is practicable or reasonably practicable to reduce the risk to health and safety, and it is then for the defence to show on balance

adduced, whether or not something was

practicable or reasonably practicable, Notwithstanding the difference of the term, the interpretation of reasonably practicable and practicable is still

concentrated on the cost benefit

exercise, weighing the cost of renroving

"l

realize that, until the defendants discovered the system of inslalling an extractor under the grid, there was no
sr.rch systern

of probabilities (the "civil law standard")

that they did all that was practicable or
reasonably practicable, Likewise, once tlre prosecution has established a prima facie case, i.e. the elements of the offence have been proven, the burden is then on the defendant (employer) tcl satisfy the court that it was not practica[rle or reasonably practicable to do more to control the risk than was in fact done. T'he decision in the case of Avtociated Dairies. v Hartley6 would be of special interest as far as this qualification is

or rnitigating the hazards against the likely severity of the hazard or risk in
question.
Fnd Note:

in existence,,..that would
1'vs1g made

appear to be hard on the defendants if, in

those circumstances, the;r

liable for not discovering sooner

something wlrich, for the benefit of the community, they discovered in 1941...,.1

find it impossible to
statutory duty"
4
.

say

that

the

defendants were in breach of their

Safety Measures Against Danger Not Known to Exist
Evidently, the defendant also cannot be

[1945] 1 All Eng Report, p,387. 952] 1 All Eng Report, p.679 at 684.. '? [1 3 [1953] 2 All Eng Report, p,320. ' lbid, at p.322. s [1955] 3 All Fng Report, p.205. u llglg)'l Rhodesian Law Report, p,171.
REFERENCEs

corlcerned, although irr tlre UK's legislation pertaining to occupational

lield liable for not taking measures

against a danger which was not known to exist. ln Richards v Highway lronfottnders (West Bronwi ch) Lfd. s, the pla i ntiff com menced proceedings against the defendants for damages for breach of their statutory duty under s,47(1) of the Factories Act, 1 937, in that they had failed to take all practicable,

safety and health (particularly the Health a nd Safety at Work, etc. Act !974),the term 'reasonably practicable'is nrostly used to introd uce a qualification. ln this case, the company had 66 depots around the UK and had calculated that if it provided safety boots to all of its

, 1, Barrett, B,,& Howells, R. 1997, , , Fr.amewarks on;.,Occupational , Health and Safety L'ovv, 3td Ed,
,, i

and Safety in Building and : : Construcl!on. , Lond on:

Butterworth Heineman
n.
Ed.

2.

Clarke,T.199B. Managing Health

3,

Munkman, ),1990. Employer's

'Liability at Common Law,11'h

enrployees who rnight need them, the cost would be f 20,000 in the first year and f '10,000 thereafter. 5o the company introduced a scheme whereby as a result of a Factory lnspector's improvement

4, Health and Safety Executive

(HSE)

or any, measures to protect tlre plaintiff

against the inhalation of dust and that they

Enforcement Gr-ride (Errg &

Wales).

ffi

25
,',i

ia

ste rii.:iu
OIIAFTEF

iIde

rs

3RD

2OO5

Associated Dairies v. Hartley ll979l I.R.L.R 171

How can the employer discover what the law reqrires of him@veryone has his own ideas of reasonableness, but even judges disagrgg| First, he can consult test cases to identify the facprs which the courts will consider material. Cost benefit analysis plays an important part.llp one case, an inspector ordered ASDA Stores to provide safety shoes free of charge for all its employees working in warehouses, as a precaution against having a foot crushed by a loaded roller truck. This would have cost f,20,000 in the first year and f,l0,000 in each succeeding year. The company already provided safety footwear at cost price. There had been ten accidents in the previous year involving roller trucks in ASDA's 66 stores.The industrial tribunal disagleed with the inspector on the ground that the expense was disproportionate to the ris!\

,)

o
.^

tQll IFF-ry ,ot t$t I

q<mi

WaA
,

N
/
I
{

Iso,a
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