The Legal Framework of the Occupational Diseases under the Occupational Safety and Health

Act Chapter 88:08

Mr. Peter Ramkissoon, Acting State Counsel II, Ministry of Health

 

1. Let me begin by saying that the Occupational Safety and Health Act has been included

in the 2006 Revised Edition of the Law of Trinidad and Tobago and therefore it is no

longer necessary to refer to the Act as “the Occupational Safety and Health Act 2004

as amended”.

 

2. I wanted to focus my talk on Part VIII of the Act which is titled “Notification and

Investigation of Accidents and Occupational Diseases” because this is where the term

“occupational disease” is first dealt with substantively in the Act, apart from the

definitions section which merely states that occupational disease means a disease

listed in Schedule I of the Act.

 

3. But I won’t confine myself to only that Part since I would also like to say something on

Part XIV which deals with offences, penalties and legal proceedings under the Act and

mention other sections of the Act or other Acts which relate in some way to

Occupational Diseases and some cases.

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Section 48

 

4. So turning to section 48(1) of the Act, we see that a medical practitioner is under a

duty to notify the Chief Medical Officer (CMO) when he attends to a patient and forms

the opinion that the patient is suffering from an occupational disease contracted in

any industrial establishment or in the course of his employment. Further, the notice

must be sent within forty-eight hours of having formed that opinion with specific

information. I wanted to point out that unlike section 46(1) which also requires

immediate notification in the case of an accident which causes death or critical injury,

and notification which appears to be direct like the telephone or e-mail, the

notification required by this section does not need to be preceded by such immediate

and direct means.

 

5. Within that little section lies a great deal of information and detail and questions

concerning the operation of the Act, which I will try to explain.

Duty of Confidentiality

 

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6. Ordinarily, a doctor has a duty of confidentiality towards his patient. This means that

he has a legal obligation to not disclose or reveal voluntarily to a third party whatever

knowledge he gains from treating a patient, whether that knowledge be gained

directly or indirectly. A breach of that confidence may result in the patient being able

claim damages in Court for breach of the duty of confidence, which is a claim in tort,

that is, a claim for a civil wrong.

 

7. Further, in the instance of Trinidad and Tobago, the Medical Board Act Chapter 29:50

which governs, among other things, the discipline of doctors for infamous or

disgraceful conduct, the very first specific act of infamous or disgraceful conduct

mentioned and found under Section 24(5)(a) is the willful betrayal of a professional

confidence. And therefore a doctor may be subject to disciplinary proceedings if the

doctor releases information to a third party, like a CMO.

 

8. Therefore one may be quick to assume that the release of a patient’s condition and

information related to her employment is a breach of the duty of confidence.

However the case of W v Egdell [1989] 1 All ER 1089 which confirmed that a doctor

had that duty but it was not absolute and the duty was subject to the requirements of

disclosing under compulsion of law or disclosing in the public’s interest.

 

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9. Therefore it would appear that section 48(1)’s obligation imposed upon doctors will

fall under the exception of compulsion of the law. It is to be noted that section 48(1)

imposes a duty and not a mere discretion on the part of the doctor; this is evidenced

by the use of the phrase he shall. If the word may was used, the medical practitioner

would have a discretion and not a mandatory obligation.

 

10. This exception created by section 48(1) is like the exception that was noted in the case

of Hunter v Mann [1974] 2 All ER 414, where a doctor was found to be guilty of

refusing to give information, to a police officer, which was in the doctor’s power to

give and may have led to the identification of individual who the police officer was

enquiring about. The doctor refused to divulge the information because he had only

gained it through his practice and he felt bound to the duty of confidentiality.

However the court found that there was an explicit statutory requirement for a

person to give information to an officer requesting it and failure to do so was a

criminal offence.

 

11. Likewise section 48(7) creates a criminal offence and possibly a safety and health

offence (more on which later) whereby a medical practitioner is guilty if he fails to

notify the CMO within 48 hours if he ought reasonably to have formed the opinion

that the patient was suffering from an occupational disease.

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12. This raises the interesting question of when does a doctor form an opinion. It can’t

simply be when he attends to the patient and forms a suspicion and then decides that

he would need further tests to determine whether the complaints or conditions

observed satisfies one of those diseases mentioned in Schedule 1. And what if he

needs to refer the patient to a specialist in order that his suspicions are confirmed?

And this raises a further question, what is the obligation of the specialist who

determines that the patient that was referred to him is suffering from an occupational

disease? Is he also bound by Section 48(1). To my mind he is also bound since he is a

medical practitioner and one who can form opinions and therefore he is also required

to notify the CMO.

 

13. But to my mind, the time that the Section 48(1)’s obligation begins to run for a doctor

who merely harbours a suspicion and takes weeks or months to come to a conclusive

opinion, must be after he receives and contemplates further information, either

supplied by further questioning, examination or tests he conducts himself or another

referent practitioner, not at the point of suspicion.

 

14. This is of course difficult to identify in practice, and the added obligation is not simply

when he forms the opinion, but when he ought reasonably to have formed the

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opinion. This then becomes a question of the test of when a medical practitioner

ought to reasonably have come to opinion. This sounds similarly like the test that is

proposed in medical negligence cases where the erring doctors actions are measured

against the practice accepted at the time as proper by a responsible body of medical

opinion even though other doctors adopt a different practice, a test which is found in

the case of Bolam v Fiern Hospital Management Committee [1975] 2 All ER 118.

 

15. At the very least, the prosecution in bringing a complaint against a doctor under this

section would be required to lead expert testimony from doctors as to when this

reasonable opinion should have been formed. And the delay with which this occurs

must be tied to the type of practitioner which is being dealt with: in the case where a

patient is suffering from a disease caused by aluminum, such as aluminum lung, which

is an Occupational respiratory disease under Schedule 1 and found at 2.1.8, a general

practitioner cannot be held to the same standard as a pulmonologist.

Industrial Establishment or in the course of his employment

 

16. The Occupational Disease (OD) which the medical practitioner identifies must have

been contracted in an industrial establishment. An industrial establishment is defined

as a factory, shop, office, place of work or other premises. So the use of the

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word industrial takes on a very broad meaning wholly unrelated to the sense that

industrial usually connotes, which I think sounds like large scale manufacturing,

production or construction. So Ministry buildings – like Ministry of Health, Ministry of

Labour, restaurants, and this hotel, will all qualify under the category of office or place

of work. An interesting example that would qualify as a place of work is on a ship or

boat, so that crew members on the T&T Express would be able to say that they

operate in or rather on an industrial establishment. However this submission is a bit

academic, since a ferry is a type of vessel and vessels are included in the definition of

premises.

 

17. I wanted to highlight that the person who contracts the occupational disease from the

industrial establishment need not be an employee of that establishment, merely that

he contracted the disease in the establishment. So a visitor would qualify. However, if

one reads the requirements of the notice that is to be sent it states that the notice

must contain the industrial establishment in which the patient is employed and was

last employed.

 

18. In the case of a patient who contracted the OD from only visiting an establishment but

was not an employee that information would not be helpful for it would not reveal

the causative establishment. To my mind the medical practitioner must include in the

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notice the establishment which the patient visited and that the information as

required by Section 48(1) is not exhaustive but the minimum that should be supplied,

if one is to give effect to purpose of that section.

 

19. And what about employees who do not work in a fixed place, but leave a central

headquarters and work in different job sites, places everyday, often in private

premises, like technicians or carpenters or community nurses or like the Ministry of

Health’s Public Health Inspectors and like the OSH Agency’s Inspectors? And what

about drivers and transporters, whose very employment depends on being in a

vehicle? Their vehicles would suffice as premises, under the definition of premises

under the OSH Act. But I don’t think that the time they spend out of the vehicles,

when they are offloading goods or making deliveries or when they of necessity have

to take their lunch will be considered as satisfying the criteria of an industrial

establishment. Are they not protected also?

 

20. I think that the phrase in the course of his employment addresses just those workers I

mentioned and just those situations I mentioned. In the course of one’s employment

is not defined under the Act, but has been defined by case law and academic texts.

The case law defining the phrase has not been found with respect to this Act but

rather with another Act that seeks the interest of the worker – The Workmen’s

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Compensation Act Chapter 88:05 and with case law dealing with vicarious liability,

that the liability of the employer with respect to the wrongful acts of his employee.

 

21. The term “in the course of employment” according to Charlesworth on Negligence

6th Edition at paragraph 89 is defined as:

…an act is done in the course of employment not only when the servant is actually doing

work which he has been employed to do, but also when the act is an incident in

performing something he is employed to do when he is about business which concerns

the master and servant.

 

22. L & Y.R v Highley 1917 AC 352 states that “arising out of the employment” would be

determined if it:

…was it part of the injured person’s employment to hazard, to suffer or to do that which

caused his injury? If yea, the accident arose out of his employment. If nay, it did not.

 

23. Winfield & Jolowicz on Tort finds that what is in or out of the course of employment

depends upon a question of fact.

 

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24. And there have been English cases sought to determine whether a worker was acting

in the course of his employment. Such as R v National Insurance Commissioner ex p.

Michael [1977] 1 WLR 109, where a policeman who played football for a match that

was authorized, promoted and encouraged by the police authority was found to have

not been acting in the course of his employment when he was injured as a result of

playing.

 

25. I think this question of and the answer to in the course of one's employment related

to the job specification or job description of an employee. This is how I deal with this

particular criterion when I calculate Workmen's Compensation claims. The substantive

requirements of one's work will determine when an individual was acting in the

course of his employment when he contacted the OD or whether what he was doing

was not in his scope of duties and therefore the OD could not be said to have been

contracted in the course of his employment.

 

26. The evidence of what the worker says is job and daily routine, what his supervisor says

is his job and daily routine and what his co-workers says is his job and daily routine

should also be considered.

 

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26. Turning to subsection 3, the employer has a duty when he is advised by the employee

that he is suffering from an OD to give notice to the Chief Inspector in writing within

four days of that advice. The employer also had this duty when he has been advised

by someone acting on behalf of the employee.

 

27. These notices to the Chief Inspector trigger his obligation under subsection 4 to

arrange for a medical inspector to investigate the case of the OD. It would appear that

the broad words of investigate in the case of the OD entitles the Medical Inspector to

invoke his powers under sections 72 and 73, which he is entitled to exercise by virtue

of section 82 which confers every power of an inspector on a medical inspector.

 

28. The medical inspector must then submit his report on the case of the OD within two

weeks of his appointment by the Chief Inspector. Therefore at a maximum the Chief

Inspector is first able to act upon an OD roughly a month and four days after the

employer is advised of the case of OD.

29. The Chief Inspector is then mandated to conduct the necessary enquiries under

section 48(5). This term necessary enquiries suggest that the Chief Inspector may

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instruct his Inspectors, including Medical Inspectors, to exercise their investigative,

instructive and prosecutorial powers under Sections 72, 73 and 74.

The District Medical Officer’s duties

 

29. The District Medical Officer is also given certain duties under the OSH Act in respect of

occupational diseases. Under section 49 he must arrange an autopsy to be conducted

and forward the results to the CMO.

 

30. Presumably the DMO, who may be the County Medical Officer of Health or a Medical

Officer of Health, falling under the Ministry of Health or a Primary Care Physicians II,

falling under the Regional Health Authorities, for that particular district, such as

Victoria or St. George East or the other seven counties, would not be skilled or

experienced in subspecialty of pathology and therefore they are empowered to

arrange for a pathologist to perform an autopsy on the body.

 

31. This obligation is distinct from the one which the DMO has under the Coroners Act

Chapter 6:04, under section 9, which states that where the DMO has viewed the body

of a deceased person and made any anatomical examination, he shall make a report

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as to the cause of the death to the Coroner within the district the viewing took place

and also forward a copy of the report to the Superintendent of the Police within

whose division the viewing took place.

 

32. One can expect that the report he prepares pursuant to the Coroners Act will not

suffice for purposes of the report he sends to the CMO. The reason being that the

report prepared by the DMO pursuant to section 9 of the Coroners Act is based upon

his viewing and his anatomical examination and not an autopsy. An autopsy is an

invasive method of examination. Section 49 of the OSH Act, indicates that the result

of the autopsy are to be forwarded, the implication being that this must happen after.

 

33. I think that this was put in place distinct from section 48, since 48 deals with a person

who is currently suffering as opposed to someone who has suffered from an OD. A

corpse also isn't a patient. Therefore the duty to send a notice within forty eight hours

to the CMO doesn't apply to the DMO in the case of a death.

 

34. Also the criterion that the person must have contracted the OD from an industrial

establishment doesn't apply here for section 49 to operate. It is merely that the

deceased died from a Schedule 1 disease. The criterion that the dmo must arrange for

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an autopsy to be conducted is in cases where death is caused by an accident and

death is connected to an industrial establishment or in the course of employment.

 

35. The CMO is then required to forward not the results of the autopsy, but rather a

statement as to the cause of death to the Chief Inspector. But there is no prohibition

for the CMO to forward the results also. This is distinct from the CMO's duty under

s48(2) which appears to be that he acts as a conduit for passing information and does

not give a statement or opinion on the matter.

The Coroner’s duties

 

36. The Coroner is also given duties and obligations under the Act. Section 50 mandates

that a coroner is obligated to send the Chief Inspector a notice in writing of the time

and place of the inquest. This notice must be sent at least forty-eight hours before the

holding of the inquest. It is assumed that the inquest referred to here in this section

50 is identical to the inquest pursuant to Section 10A or 11 or 12 of the Coroners Act.

 

37. Interestingly, under the Coroners Act section 10, the Coroner is obligated to carry out

a preliminary investigation, after receiving the section 8 report from the DMO. This is

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a preliminary investigation as to the cause and circumstances of the death. However

this preliminary investigation is distinct from the inquest the Coroner holds pursuant

to section 10A or 11or 12 of the Coroners Act. Therefore there is no obligation as yet,

at the preliminary investigation stage for the Coroner to send the Chief Inspector any

notice of the proceedings.

 

38. However subsection 10(2) and (3) of the Coroners Act indicates that the Coroner is

obligated to deliver his findings in open Court if he determines that no further enquiry

and therefore no inquest is necessary, and that the Clerk of the Peace shall give notice

to any party interested of the date, time and place of the delivery of the findings. An

interested party in the case of an occupational disease would be the Chief Inspector or

an Inspector and therefore they should be notified under section 10(3) of the

Coroners Act.

 

39. I suspect that if the Inspectorate isn’t notified that the OSH Agency may apply for

judicial review of the failure to notify them of the Coroner’s delivery of his findings

and seek an injunction of that delivery until an Inspector can attend or a quashing

order of any decision made by the Magistrate in the absence of the Inspector.

 

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40. Here again phrasing implying immediacy of relaying the notice, as seen in section

46(1), is missing from here and therefore the obligation to e-mail or telephone or

attempt direct means is not mandated here.

 

41. The implication of subsection 50(2) is that it is expected that the Chief Inspector

would send one of his inspectors to the Coroner’s inquest and that the Cornoer may

adjourn the inquest for the purposes of notifying the Chief Inspector of the inquest.

 

42. Under section 50(3) the Inspector; a relative; the employer; the occupier of the

industrial establishment from which the disease is alleged to have been contracted; a

person appointed by the occupier’s or employer; or a person appointed by the trade

union or other association to which the deceased belonged to at the time of his death,

may examine a witness either in person or through an attorney or an agent.

 

43. According to section 22 of the Coroners Act the examination is taken down in writing

in the form of a deposition which shall be admissible in evidence in any proceedings.

Therefore this is important to the prosecution of health and safety offences and

criminal offences prosecuted under the OSH Act.

 

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44. If no inspector was present at a Coroner’s Inquest, section 50(4) mandates the

Coroner to send to the Chief Inspector a notice in writing of:

i. The neglect which caused or contributed to the disease; or

ii. The defect in or about the industrial establishment appearing to the Coroner

to require a remedy.

 

45. The word “neglect” here refers to the behavior of the deceased, his co-workers and of

the employer or occupier. This therefore may be broader than the duties listed in Part

II of the OSH Act, although section 6(1) is quite comprehensive because of its

generality –So that neglect may arise where the employer failed to ensure, as far as

reasonably practicable, the safety, health and welfare at work of his employee.

 

46. Additionally, the defect in or about the industrial establishment appearing to the

Coroner to require a remedy need not have contributed to the contraction of the

disease, but simply be an observation of the Coroner of the working practices that

existed at the industrial establishment gained from the depositions of the witnesses to

the inquest.

 

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47. Section 51 gives the Minister, who is currently the Minister of Ministry of Labour and

Small and Micro Enterprise Development, the power to advise the President that a

case of OD contracted or suspected to have been contracted in an industrial

establishment is a matter of public interest and the President may cause a

Commission of Enquiry to be held whose remit will be the case of the industrial

disease and its causes and circumstances. This section uses the phrase industrial

disease but it should really occupational disease.

 

48. I suspect that if the Minister fails to advise the President, his failure to do so would

subject him to judicial review, but it would have to shown that his failure to exercise

his discretion here was unreasonable or unlawful or motivated by an improper intent

or purpose, for one to be successful at getting an order which mandated the Minster

to advise the President and that the case of the occupational disease attained a level

deemed to be a matter of public interest.

 

49. Under section 52(1) and (2) the Minister also has the discretion to direct the CMO to

arrange for a medical inspector to investigate and submit a report on any to the CMO

who then forwards the report to the Minister. This investigation and report may be on

any matter the Minster may direct and therefore includes the case of occupational

diseases.

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The purpose of these sections

 

50. So one may be thinking to what end are these sections aimed. I think the benefit of

these sections is that it creates the best conditions for the Chief Inspector to become

aware of and be informed of occupational diseases that are existent in Trinidad and

Tobago and reduce the likelihood that occupational disease go undetected or if once

detected, the likelihood that it will not be addressed or escape the public’s attention.

 

51. Therefore I would want to turn to the methods by which he may address a case of an

occupational disease.

 

52. Turning to Part XIV of the OSH Act, this part deals with offences, penalties and legal

proceedings, section 88 states that where a person contravenes a provision of the Act

or its regulation the person commits a safety and health offence. Where a person fails

to comply with any duty, prohibition, restriction, instruction or directive issued under

the Act or its regulations he also commits a safety and health offence.

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53. This safety and health offence is subject to the jurisdiction of the Industrial Court and

section 97A states that all safety and health offences shall be determined by the

Industrial Court.

 

54. The Act also appears to maintain that offences may also be prosecuted in a summarily

manner in the Court of summary jurisdiction, that is the Magistrates’ Courts and

therefore no indictable offences exist under this act.

 

55. This is supported by case of Inspector of Factories v OSHA Complaints No.1-4 NH

International (Caribbean) Limited, OSHA Complaints Nos 5-10 Safeway access and

Support Systems Limited and OSHA Complaint No11 Turner Alpha Limited, which was

determined in the Industrial Court. This is one of the two cases I have found that deals

with prosecutions under the OSH Act in the Industrial Court.

 

56. So at page 26 the judgment, the judges found that the scheme of the Act is such that

the intention is that summary offences are to continue to be tried in the Magistrates’

Court as they had been under the [Factory] Ordinance and the new class of offences

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introduced under the Act, safety and health offence is to come under this Court’s

jurisdiction.

 

57. So in this case, which was based upon the collapse of scaffolding at the Customs and

Excise Building, Government Campus Plaza, Richmond Street, Port of Spain the

complaints were based upon failure to maintain the place of work, under the

employer’s control, in a condition that was safe and without risks to health, as far as

practicable. This is a breach which was contrary to Section 6(2)(e) of the OSH Act. The

other complaints are based upon breaches of sections 6(1); 6(2)(d); 7(1); 13(1)(a); and

13(3).

 

58. Therefore, it would appear that apart from specific breaches of reporting duties found

under Part VIII, the offences which an employer may commit with respect to an

occupational disease are to be found under Part II, that is, the General Duties.

 

59. But I would submit that those duties found under Part II, such as 6(1) or 7(1) or 13(3)

are not criminal offences and cannot be prosecuted in the Magistrates’ Court and they

only constitute safety and health offences.

 

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60. I say this because if one looks at the Act and at those sections which create criminal

offences such as section 48(7), which I mentioned, or section 47(1) and (2) which

criminalizes the interference of any wreckage at the scene of a critical injury, the

words “is liable, on summary conviction” is not to be found in those Part II duties. This

phrasing usually indicates that the person is criminally liable and subject to the

Criminal court's jurisdiction. Therefore the sections under Part II remain duties

without redress to the Magistrate’s Court but solely to the Industrial Court because of

the wording.

 

61. Take for example, where the vibration of a machine is consistently encountered by

workers at a factory but the employer fails to provide protective equipment to the

workers when they handle the equipment or post signs which warn the worker of the

vibrations caused by the equipment and an employee develops an occupational

disease as a result.

 

62. This disease will amount to a disease that is caused by the physical agent of vibration

and therefore a Schedule I disease.

 

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63. To my mind the employer has committed several safety and health offences. He has

failed to make arrangements for ensuring the absence of risks to health in connection

with the use and handling of equipment contrary to section 6(2)(b); he has failed to

provide information as is necessary to ensure the health at work of his employee

contrary to section 6(2)(d); and he has failed to maintain a place of work under the

employer’s control in a condition that is without risks to health as far as practicable

contrary to section 6(2)(e). I do think that the catch-all provision of section 6(1) will

also be applicable and the employer has failed to ensure the health at work of his

employee.

64. And similarly the worker would also have breached his responsibility found under

section 10(1)(a) by failing to take reasonable care for his own health while at work, by

continuing to work in the absence of proper gear. So he also commits a safety and

health offence.

 

64. But I don’t think that the employer has acted contrary to section 6(2)(c) since this

specifies that the protective clothing or devices provided are for preventing bodily

injury not disease. Injury and disease appear to be distinct concepts under the Act and

are not synonymous.

 

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65. This power to institute prosecutions in the Industrial Court is not a bar to the other

powers which the Inspector has, such as his powers under section 74(1), which

empowers him to serve a prohibition notice or an improvement notice where a

person is contravening the Act. As I said before to breach or fail to perform a duty is a

contravention of the Act and therefore if conditions exist which would promote,

encourage or allow the introduction or persistence of an occupational disease, the

Inspector may issue a prohibition and improvement notice which will remove the

existing danger.

 

66. But what happens if the employer fails to take steps to comply with notices? This is, I

think, a failure to follow a prohibition or a restriction or directive or an instruction and

therefore will constitute a safety and health offence, apart from the substantive

failure of the employer to ensure the other duties, which is why he was served in the

first place with the orders.

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