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:

understand the main purposes of osHA Lgg4List 15 parts in OSHA Lgg4Philosophy and principles of OSHA rgg4List at least 5 main provisions of OSH Argg+Analyse case discussions from the perspective ofOSHArgg4

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SCOPEii2i

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r. BaCkg,round of O,SHA r994

z. Content of OSHA t994

ri par,ts o -f the dct

Conclusion

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What is OSHA 1994jj .r':

iib "

An Act to make further provisions for securirg thesafety, health and welfare of persons at work, for

protecting others against risks to saf"ty or health inconnection with the activities of persons at work, to

establish the National Council for OccupationalSafety and Health, and for matters connected

therer,vith.

PREFACE

1,..,,.,,,...... -

OSHA was enacted on z5th FeFebruary Lgg4with theintent to ensure safety; health and welfare of allpersohs at all plaies of Worlt

It was prornulgated based on self regulation conceptwith pfimary responsibility of ensuring safbty andhealth at workplace

Lying with those who create the risks and work with therisks

Responsibility to ensure safety and health in workplacedepends on those who create the risks and those with workwith those risks.

t) Sglf regUlatiOn - "o!o q"r u gra.L'co$b " - ts (r)

Discussion

Cooperatiorr and employee involvementi:)

$

ARRANGEMENT OF SECTION

15 Parts;

Pielirninary1.

2.

1)'

4.

Appointm€nt of officersNational Counc'il'''lbr Safety and HealthGeneral Responsibiliry of Employer & Self-employed

5. General responsibility on design, manufacturer &supplier;

General responsibility of employees ;

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

rnvestrgatron;

g. Prohibition on the use of materials;

10. Industrial practice;

6.

7.

B.

Safety and health organizations;

.t {{\n I

',t'. ..{.' :

1r. Enforcement and investigation;

Lz. Cri es,and,|,ilhility;

4ppeal;

Re$ulatiofi,si

Miscellaneous.

L3.

1+.

15.

Part 1 Preliminary

,[se,ctiion:.i(r).&,(])1, .:: Biief topics & usage

''

Workers ' "i

r: In all economic sectors, specified in FirstSchedule;

l€ftoa 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

r .. .I i

- civitrians wo'rliin$,,under Ministry of Defence are cover€d under OSI!{,gg4 :

FIRST SCHEDULE Subsection 1(2)

Factoty;Minin$,, &, quar{y;Construction;Ag,riculture, forestry &fishing;F .1.

Facrlrtres;Electric, gds, water & healthSCTVICCS;

Transpoitation, Storage &communication;Wholesalers & Retailers;Hotel & Restaurants;Financial, Insurance, landproperty & businessservices;

Public services & statutorybodies;

2 Regulations to cou nterSection

(t) Additional provisions for other written legislationrelating to OSH;

(r) Provisional Act to counter provisions which areinconsistent.

Section 2 Regulations to

'\::.1,).: ::j'

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 conductedevery two years. Whereas under the Occupational Safety and Health (Useand

-stat 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 (AsbestosProcess) 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 Standardsof Exposure to Chemicals Hazardous to Health) Regulations 2ooo shallprevail in this case.

counter (Example)

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Section 3 : Employee

i|: j 1: j:]l:'':

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lnterpretation..;:i:iltl',

j

Employees ar€ workers who are directly employed by theprincipal employer or through an immediate employer at theplace of work or whose services are let on hire under a contract ofservice.

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. Nomention has been made with regards to trainees. Hence trainee

be considered as other persons at the work place.can

Employer

:::; Employer under the Employrnent Act Lg55 means any personwho,has entered into a contract of service to employ any otherperson as an employee.

' An employei would include the:immediate employei oi theprinciple employer or both

. Employers may include owner, developer, main contractor orsubcontractor if there is a contract of service to employ anyother persons as an employee.

I ffi ction 3: lnterpretation Place of work

'::t.-.-: r

In order to define a place of work for an employee, it isimportant to refer in which premise he is normallyworking, for example:

Postman- post office, motorcycle and offices or homeswhere letters are being delivered.Taxi drivers- taxi statiors, taxi buy, taxi.

elivery boy- przzarestaurant, motorcycle, clientPtzzad , , ^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.r{.::::'n

ii::ii i1n

r, 19:

(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 socialwell-being and not merely the absence of disease.

Welfare of employees would include provision of first aid,drinkitg water, canteen, washing facilities and toilets formen and women.

(b) :Protect safety and health of both workers and oth,ers

o Others persons at place of work include clients, visitorsand public

and(c) To

make it compatible with physical and mental needs ofworkers

o Physiological - working in hot environment requireappropriate rest-work regirne

o Psychological * employee should not be overwork orunder work

(d) To establish a rystern oi legislation based on regulations andindustrial 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

Section

Part lll: National Council for Occupational Safetyand Health

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9: Membership of the council

Employers represented by the Vlalaysian Employers Federation,Fedbration of Malaysian Manufactu rers and ihe-Malaysian AgriculturalProducers Association (MAPA) ;

Emolovees reDresented bv the Council of Union of Employee of Public.rd Cdmmertial Sectors (CUEPACS) and the Malaysiair Tiade UnionCongress (MTUC);Government reDresentatives comprised of Deputy Minister from theMinistry of Human Resources (who is also the Chairman of theCouncif), the Secretary-General of the Ministry of Human Resources,one representative froirr the Ministry of Healt6, one representative fromthe Ministry of Local Government aird one representafive from theD epartment of Agriculture ;

Non-sovernmental orsanisations reDresented bv a representative eachfrom In" Malaysian So"ciety for Occripational Safety ind Health(MSOSH), Uni'-",ersities

"nil the Maliysian MedicafAssociation

Part lV: General Duties of Employers and Self-em ploye$ Persons

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Section ry: General duties of employers and self-employed plrrsiri ro theiremployees

(r) It shall be the duty of every employer and every self-employed person toensure, so for as is practicable, the safety, health and welfure at work ofall his r^ptoy€€s;

- This subsection provides for the dury of every employer toensure safety, health and welfare at work of all his employees.However in carrying out this duty the terms 'so far as ispracticable' has been used.

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i. 24J''i,r,::,r ijl'

'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 varyin different excavation work. Excavation work can be of difFerent depth. Itcan be deep or shallow. For 3 feet excavation, benchirrg is sufficient and noshoring required. This is because the risk to injury is very low. If theexcavation is very deep, benching is not sufficient and shoring is needed tobe carried out although cost for shoring is very high. This is because therisk of injury is high due to occurrences like collapse or landslide"

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Case 1: Marshall

Section 15 (1) Example II ::1. :. .-

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v. Gotham Co. Ltd [tgf+] AC 36o

The plaintiff was the widow of a man who was l<illed while working in a gypsum mineowned by the defendants. He was killed by a fall of marl flom the ioof oiiire *orkingplace. The fall was due to 'slickenside] a condition which was unusual anywhere andhad not occurred in the defendants' mine for at least z5 years. Theie was no reason tosuspect its presence and.the probabilities were all against its occurrence there. i

Accordingly the roof over working places was inspected darly but no props were used. i

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

Section 15 (1) Example 2\(

Case z: Edwardsv. National Coal Board lrg+gl r I(B 7o4

Lord Justice Asquith states:

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

Section 15 (1) Example 3

Case 3: Associated Dairies r.. Hartley ltrypl I.R.L.R r7r

How can the employqr d,iscover what the law requires of him? Everyone has his ownideas of reasonableness, but even judges disagree. First, he can consult test cases to.r(-

identifii the factors whicfthe courts will consider material. Cost benefit analysisplays an important part. ffi one case, an inspector ordered ASDA Stores to providesafery shoes free of charge for all its employees working in warehouses, as aprecaution againsj having a foot crushed by a'loaded roller truck. This would havecost f,?o-+ggo- in the first year and €ro,ooo in each succeeding year. The companyalready provided safety footwear at cost price. There had been ten accidents in thlprevious year involving roller trucks in ASDAs 66 storeglTfre , industrial tribunaldisagreed with the inspector on the ground that the expense was disproportionate tothe ris\

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Section 15 (1) Example 4

Case 4: Harrison (NewcaStle . under.Lyme) t Rimsey Uin6] IRIR 95

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

Section 15 (2)(a)....,:ii:l;:'{:.,\.

;: .- --::. 'l.i.i .- --;;t

out prejudice to the generality of subsection (1, the ma

the provision and iaintenance of plant and systems ofas fs practicable, safe and with,ouf rfs/<s to health;

:

.:.:tters to:which

work that are

the

, so far

Homework:

1. Provision -

z, I\1[aintenance -

3. Plant -

+. Safe system of work -

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b) the making of aruangements for ens,iring,qbsence of risks to health in coninection withand transport of plant and substan ces;

so far as is practicable, safety andthe use or operation, handling, storage

Example of making arrangement can be seen in usin$ a forldift. There mustbe procedures on how to start, handle, transport, and store the forklift afterusing it. Training must be provided to make the employee familiar with thetask carried out and the evidence of the training such as license or certificateof competency is very important. Employer should do an inspection andaudit on the arrangements. Finally employer must enforce the arrangementto 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 reasonablypracticable, safety and absence of risks to health in connection with the use,handling, storage and transport of articles and substances. He must provide suchinformation, instruction,.training and supervision as is necessary to ensure, so faras rs reasonably practicable, the health and safety at worl< of his employees. Hemust maintain and provide a working environment for his empioyees that is, so faras is reasonably practicable, safe, without risl<s to health, and adequate as regardsfacilities and arrangements for their welfare at work. It is arguable that this couldoblige the employer to provide medical or nursing services in a particular case. Thecivil courts have held that an employer who failed to institute regular examinationsof his employees who had been exposed to carcinogenic substances failed in hiscommon law duty to take reasonable care, despite the lack of any specific statutoryobligation.

Section 15

32,:

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

An example of information, instruction, training and supervision in a laboratoryare as follows. Laboratory workers are exposed to numerous chemicals. Provisionof information such as CSDS, safe working procedure, emergency procedure andeffbct 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 inthe lab. Training on handling of chemicals must be provided. Employers mustkeep the evidence of trainirg. Supervision by the employers ensures employeesfollow the procedures in the laboratory.

(2)(c)

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

'':r-- . :'

d) so far as is practicable, as regarat iiiy place of work und.er the control of theemployer or self-employed person, the maintenance of it in a condition that is safeand without ris/<s to health and the provision and maintenance of the means ofaccess 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 thatis, so far as is practicable, safb, without ris/<s to health, and adequate as regards

facilities for their welfure at worl<

Section 77 (t)' :.r-' ,,:r;it"

r7. General duties of employers and self-employed persons to persons otherthan their employees

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

An example of duty of employers to person other than employees would include thehospital. There are many visitors to hospitals. These individuals are at risk byexposing themselves to patients with communicable diseases. The hospitalauthority needs to reduce exposures as low as reasonably practicable. They need tohave full proof procedure to control people entering certain sections of the hospitalfor example the:xray department by providing signage and restricted access.

Measures to reduce the risk for example from Tuberculosis (TB) and Severe AcuteRespiratory 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 ld.rtie, of an occupier can be clearly seen from ,n" example of anoperator of a fast food restaurant with a play area in a ihopping complex. It is theresponsibility of the operator of the fast food restaurant (oc."pi"i) to make availablesignage 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 inthe play area. Regular maintenance of that area needs to be carried out to ensure thesafery and health of visitors. If he does not do anything and an accident occurs, hewill be found liable.;;;rh.r ;;;;;*

=tr an occupier of an apartmenr block with domesric premises.

Domestic premises wo,uld be premises occupied as a private dwelling (includinggarden, yard, garage) which is not used in common by ihe occupants o? more thanone such dweiling. Non domestic premises are premiies other tir"., this. A lift in ablock of flats, corridor and staircases have been held to fall within the definition ofnon domestic premises since they are used in common by the occupants of morethan one private dwelling. Hence here the occupier is responsibl" on safety of thec€qlmon 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 InterpretationActs 1948 and 1967, person is defined as "person" includes a body ofpersons,corporate or unincorporated: Therefore la person includes:

' 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.

ManufactPart V General Duties of Designers,

and Suppliers

Section zo

West Bromwich Building Societyv. Townsend [rg83] ILR z5Z

An environmental health officer served an imDrovement notice allesinsthat a building Society was in breach of its dutv to do what "*aireasonably pra-ticable [o protect its employees asainst robbers. It wasordered tb

-fit anti-bandil screens. Th^e tiibunil in confirmins thenotice disregarded evidence that there was a difference of professTonalo,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. Butunder OSHA 1994, the Appeal Comniittee decision is final.

16\vSection zo

Wrightv Dunlop Rubber Co Ltd [r9zz] r3 KIR 255

The action can lie against architects, distributors, retailers, repairers andsecond-hand goods dealers. To be able to sue in negligence, theemployee need not be using the plant, equipment or substance it isenough, for ample, that the use of a dangerous substance by a fellowemployee exposes the employee to disease.

Example of responsibility of the designer would be an industrialdesigner is required to design a machine that is safe and without riskto health. The design for the machine is then given to themanufacturer to be used.

The manufacturer than must ensure that the machine manufactured issafe and must have research done to ensure that the machine wouldoperate safely.

If the manufacturer cannot ensure that it is safe, he must inform theemployer what to do to ensure the machine is operated safely andwithout risk to employees health. If the employer doesn't follow theinstruction, the employer is then liable.

Section z3

Body of person or body corporate or unincoi'porated who fails to complywith these provisions shall be guilty cf an offence and shall onconviction, be liable to a fine not exceeding twenty thousand ringgitor 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. Theseduties bear criminal sanction for non-compliance and therefore anemployeewho fails to complywith it may be prosecuted.

The requirement to discharge reasonable care would vary according tothe status of the employee. The unskilled employee could be liable forintentional dangerous activity at work while the senior manager wouldbe liable for professional judgment. Duty of reasonable care would bejudged from his level of training and is to be based on the standard ofreasonable 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 operationsare being performed, persons are not as a rule required to guardagainst every conceivable result of their actions, nor are they bound toexercise scientific care or to take extravagant precautious. They musthave regard both to the probability of injury resulting, and to theprobable seriousness of the injury. They rnay weigh the cost and thedifficulties of the precautions. They are in general entitled to assumethat others will comply with statutory regulations.

D Refer the attach example.....

Section z5

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

"6gliga;iiy;;A;to be understood.

. 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 providingpersonal protective equipments or other requiremcnts of thelaw. For example the employee cannot be required to pay forpersonal 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 demotionif he makes a complaint about safety and health matters at theplace of rn'ork or when he exercises his functions as a member ofthe safety and health committee in the workplace.

(z)Trade union must not take any action on its members whocarry out their functions as a member of the safety and healthcommittee. This is to allow the employee to carry out theirfiunction as a committee member independently.

Part Vll Safety and Health Organisations

Section zB

r Medical surveillance - rnonitoring of persons for the purpose ofidentifying changes in health status due to occupational exposure tochemicals and other substances which are hazardous to health

r Guidelines - USECHH Regulations 2ooor Medical surveillance - conducted by an occupational health, doctor

who trained in Occupational Health and are registered by the DirectorGeneral

@

ffiComponents 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

Section 3oSection 3r

- Safety and Health Officer- Safety and Health Committee

- Function of Safety and Health Committee

Part VIll NADOOPOD and lnquiry

Section 3z

r When should notify?r 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 anexplosion;

7. 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

toits safe position after the intended exposure period;

@e. 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, orerected 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 orunintended collision of cars or trains;

16. a road tanker carrying a dangerous substance overturns, suffersserious damage, catches fire or the substance is released;

lT.Adangerous substance being conveyed by road is involved in a fire orreleased;

18. Unintended collapse of any building or structure under construction,alteration or demolition where over five tones of material falls, a wallor floor in a place of work, any false-work;

r9. Explosion or fire causing suspension of normal work for over z4hours;

zo. Sudden, uncontrolled release in a building of roo kg or more offlammable liquid, ro kg or more of flammable liquid above its boilingpoint, ro kg or more of flammable gas, or of 5oo kg of thesesubstances if the release is in the open air;

zr. Accidental release of any substance which may damaee health.

/;r.v-

/:;.,\:tr

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

Abdul Rahim b. I\/iohanlad v Kejuruteraall Besi Dan Penrbinaarl Zaman Kili tf99gl 4I\{LJ 323

This is a claint 1'ol'clanragei arising out of an accidenr u,hich occurred \\'hile tle plailriff u,asczrr1;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 themorning of 21 April 1992, he u'as asked b)' th. defendant to go to the. Sekolah MenengahSains, Cheras to do some repair u'ork to the ceiling of the sclrool hall. He u,ent thel'e u,itht\\/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. Soonafter that. SP3 left the place leaving the piaintiff and SB2 to dci tire u,ork. On the clal inquestion, file pieces of the scaffolds \\'ere used, eirch one n,ith a height of -1 feet, so thetotal height of the scaffoldirrg u,as around 20 feet. At the top of the scaffolding. ther-e u,asa ntetal platforrrt for the u'orker to sit on u,hile attending to the lvork. Tlrere \\/as no railinsarouttd the plarforrn. There \4'as a gap of about I foot bettveen rhe ceiling arid the head ofthe u,orltman seated on the platform.

While the piaintiff tt,as on top of the scaffoiding, ire requested SP3 to push the scaffoldingto another part of tlre hall, As SP3 lvas pu.siring the scaffoiding. rlre plaintiff said, it srarteclLo shake so he held on to the platforrn. He then told SP3 to slou'dou,n and SP3 repliedbt'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, butthe box gii\/e \\'a\'. rd he fell to rhe floor. At about the same time, rire scaffolding tumbleclto the floor.

Going back to the scene of the accident. SP3 told the court that rvhen he \\1as about topush the scaffolding, he asked the ptalntiff to come dou'n but the plainriff refused ro dctso. He sa\\r the plaintiff sitting at the edge of the platfornr on the side close to the u'all ofthe school hall. SP3 further told iire court that u,hen he pushed the. scaffolding. ir srarledturning and after that it fell to tire floor. At about the sarne time, he also sau, the plaintifffell 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 thecourt that after the plaintiff had finished u,or.kin,e in one part of the ceiling, the piaintiffasked SP3 to pusir the scaffolding to another area. FIe and SP3 then rold the plainriff tocome dou'n first before SP3 push the scaffolding but the plaintiff toid SP3 thar he u,ouldhang on to Lhe u'ooden bor on tlre u'all u'hile SP3 push the scaffolding. When [he plainriffattempted to do so. he said. the u,ooden box ga\/e u'ay and that had prompted the plaintiffto jurlp back onlo the plaforrn and as a result the scaffolding tumbled. He said ihe plaintiffonll,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 ofthe 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 atausepatuttil:n 1u1',r;

16

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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 berfungsidengan senrpurna;

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

It is submitted for the plaintiff that bl,reasons of the above, the defendant had committedbreaches of- both his c,ommon lenv and statutorl'duties, u,hich the defendarlt as an employerou,ed to the piaintiff.

it is subrnitted on behalf of the defendant that according to the testimonies of SP3 andSB2. the norrnal procedure is for the n,orker to come dou'n from the scaffolding before itis pushed to anotlier part of the hali. \\rhat had happened here u'as that the plaintiff, afterfinishing 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 fromthe 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:

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

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

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

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' theplaintiff as much as anl/ carelessness, amounts to c:ontributorl'negligence on his part.

Arilin Zakarta J held:

"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 ofthe 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 corriplyu,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''

Firsr. 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 appointedto supervise the erection of the scaffolding. The scaffolding r.vas also t'tot adeqr'ratell'securedto 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

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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 renrainolt 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) Regulations1970 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 tSedefendant that the plaintiff is partl),to blanre for the accjdenL. The piajntiff ought to hai,eItnou,n that. [r1'remaining on the scaffolding u,liile the same \\/as being pushed, he \\raserpclsing liimself Lo the unltecessarv rislr of injurl'to himself shoulcl the scaffoldino \\,ereto collapse or fall for some reasons or other. The conduct of the plaintiff also. as subnritreclb)' the defendant. constitutes a breach of s 2a(l)(a) and (d) of the Occupational Saferyand Flealth Act 1994. For the abot'e reasons. I am driven [o tire conclusion that there rvascontributorl, negligence on rlte part of the plaintiff .

Section 25: Dutj'not interfere u'ith or rnisuse things provided pursuant to certainprot'isions.

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,, hedecides, so far as in hinr lies. to bri'rs about. and s,hich. in point of possibiiitr'. he has areasonable 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, a

conscious disregald of c.onsequences in doing an act.

h'cgligentlyAnthou'sam5' r' Public Prosecutor [1956] I\LLJ 247The test for derertnining uegiigence is u'iretirer a reasonable man inu'ould have realised the prospect of harm and u'ould have stopped orso as to avoid it: the t.est is the sarle in tort and'criminal intention'orimmaterial.

Section 28: Dut.r' to provide healtlr sun'eillance

the circumstanceschanged his course'rviclted mind' are

\\/right v Dunlop Rubber Co. L1972) 13 KIR 255Enrplot,e. ,'an be held civillr, liable at common lan'for failing to introduce health surveillancee.r,en in ti.'e absence of specific slatuLor),regulation. Tlie ernploi,ers used an anti-oridantcalled Nonox S in their process. ICI, the manufacturers, then discovered that it c:ontainedfr:ee belanaphthl'lanrine. a knos,tt carcinogen and nou,a prohibited subsLance, and u,ithdreu'it, In 1960 a circular from the R.ubber Manufacturers Entplo)/ers'Association \\'arned thatall 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 in the earll'stage. Dunlop stopped using Nonox in 1949 but did not introduce urine tests for ra,oriiers

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Guidelinet on Occupational Safe4, and Health Act 1994

tr,lto ltad been exltosed until 1965. Onlt'then u'as it discove,red that the plaintiff had cancerof the bladder (hundreds of other cases subsequentll,carne. to light). It \\,as held rhat inaddition to the liabilitl, s1 the nranuf'actnrer the ernplo)/er \\ras liable in negligence for lailingto 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 Healrhat 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"inrmediate risk" in section 44 of the OHSA (Vic), an expressionsome of the other statutes. The Comrnission stated that:

interpret the expressionu,hic.h is alscl found in

(s

"In our t,ieu' [here is no 'standard'level of risli against u,hich the acceptabilitl'of a prohibitionnotice can be deterrnined, What is an'acceptable'risk u,ill depend upon tlie nature of thethreat. 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. Llndoubredlythis nrav be a difficult task on occasions, but similar difficulties are not unknolvn to thelau,. One rnal'envisage circunrstances x'hen an activit),u'onld be prohibited even thoughthe risli is extremell small....

Under s 44(1) the risk is to be immediate. In our vieu,'

degree of risk associated the u,orli in question. Rather, itassociated l',,'ith the u,ork i.s present. or very nearll' so. Itis to be immediate.Note: S.48 of OSHA 1994 is equivaient to S. 44 OHSA

'immediate' does not relate to theis concerned u'ith 'n,hether the riskis the exposure to the risk u,hich

Victoria. Australia).

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COURSE TITLE:

osH LEGTSLATTON (OSH 104)

TOPIC:

OCCUPATIONAL SAFETY AND HEALTH ACT 1994(Note lll)

SECTION IX:

PROHIBITION AGAINST USE OFPLANT 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 takesamples, 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 thecrime;

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 establishrules/regulations;

. To control or prohibit;

SECTION XV:

M ISCE LLAN EO US

(Section 67)

. Confidentiality

. Penalty maximum RM20,000 or 2 yearsimprisonment 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

r -.;i:

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

H UMAN RESOURCES

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

To What Extent This Limitation Exonerates

Ilir

Practically,an employer wlro starts his davat worli slror:lcj asi,l irirnself the followinqq u e st i o n s : \A/l'r at a re tl-r e h a z a rd -s/ ri s ks t lr at

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

After a compr-rtation is macle, if tlreemployer finds th.rt tlte costs of removirrqor mitigating tlre lrazard/risk ourtweiglrthe advantages of providinq the safetyand healtl"r precautions, nrLtst he thenprovide tlrose preca uti ot-r s? Obvio Lr sly, tlreernployer may tell lrimsell I atl not Lrnder

a dtrtlr to take tlrr:se precauttiotrs.

Application of the'Test'of 'Fra ctica bility'

5ince tlrere are nc) reporte.-l local case-laws ir-r the referred larn, journal that can

be referrecl to in ord,:, to understarrcl thea 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 irrEnqland will be relrrred to in orcler trrevaluate the attitrrdr: of tlre Court indeciding wlretlrer ()r nol sometlrinq waspracticable. Though the decisiorr of theCoirrt orTriburral in Irrgl.rncl cloes not bincltlre Courts in lr4al;rr,-sia, it wnuld be ofparticular reference rn tlre interpretatiorrof tlre statute in Mal ,\,sia,

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

lf, for example, tlrere is a large unfencedhole,it wilI usually be'practicable'to fenceot'cover it rlnless it is beinq used at thetime, and even if it is in use a fence doesnot becorle impracticable merelybecause it ir inconverrient.

Take for arr €xdmple,the case of Street andAnother v British Electrrcitlr Authorit)' andOthersz.lt inras said on behalf of the firstdefendants that it was not practica[rle tohave a guard or a fence to all oper"rinqs infloors under s.25 of the [.actories Acl,'1937.The learned jLrdge accepted thatsubmission On appeal,Sirrgleton [-J.said :

"l do not acr..ept the learned judqe's viewthat it was impracticable eitlrel b),thenature of tlrt: work or for arry, otlrer reason.lf tlrere is a 1-riace of this kind irr works bywhich it is known tlrat n'ten passfreq 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 dobelieve 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,cannotbe met by sayinq:"Well, it was not veryconrrenient'llhose are not tlre worris oftlre section.

aA('t

rslei' rrilrlers3rt ..)\t:Ftrr ?atrli

lfe Employer From Strict Liability Offences UnderThe OSH Legislation?BV Dr. Rozanah Ab 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 Malaysiarroccupational .safet1, a ncJ l-realtlr

(OSHt leqislation is the general clLrty toensLrre;so far as is practicable, the safety,health and urelfare of allhis employees at,rorl< (Section 15(1),CSllA 1994). fhis duty

i-s one of strict liability, sul:ject only to thedefe nce of 'pra cti ca bi I ityiTh us, tlr e plr ra-se

'so far as is practicable' is the importantIirritation attacheclto this duty LrndertlreOccupational Safetl,and Healtl-r Act 1994(OSHA Act) and this expression is used sofrequentlV to qualify 15e standard ofperformance required by the duny,

What is meant by'practicable'?

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

r the severityr of the hazard or ri-si"r in

question;* the state of knowledge about the

i-razard or risk and any way ofremoving or mitigating the hazard orris k;

c the availability and sLritability of ways

to remorre or mitigate the hazard orrrsk;and

* the cost of removinq or mitiqating thehazard or risl<. (Section 3, OSHA 1994).

The phrase'so far as is practicable'has tlreeffect of permitting the employer toconduct a cost benefit analysis in respect

of his safety and health systems. lt allows

tlre employer to calculate wiretlrer tlrebenefjts afforded by the addition ofcertain safety and healtlr procedures are

outweighed bythe costs (in term-s of time,inconrrenience, money, etc.) of thoseadditional procedures, lf so, in theory,those precautions need not be tal<en.

Tlrus, the Court lras to tal<e intoconsideration all of the above factors in

order to establish whetlrer the actiontaken by the employer. is practicable ornot.

Possible Safety Measures Yet to beKnown 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.

It is sigrrificant to refer to the decision in

the case of Adsett v, K&L Steelfounders &

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

in deciding wlrether all practicablemeasures had been taken to protect theplaintiff against the inhalation of dust,

regard must be had to the state ofknowledge 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.

ln this case, the workman wlro was

returning from his lunch to his work at thenintlr bay fell through the open space in

the seventh bay and was killed. Lord

Justice Singleton stated in his judgment:"l realize that, until the defendantsdiscovered the system of inslalling an

extractor under the grid, there was nosr.rch systern in existence,,..that wouldappear to be hard on the defendants if, in

those circumstances, the;r 1'vs1g made

liable for not discovering soonersomething wlrich, for the benefit of thecommunity, they discovered in 1941...,.1

find it impossible to say that thedefendants were in breach of theirstatutory duty" 4

.

Safety Measures Against Danger NotKnown to Exist

Evidently, the defendant also cannot be

lield liable for not taking measuresagainst 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 fordamages for breach of their statutory dutyunder s,47(1) of the Factories Act, 1 937, in

that they had failed to take all practicable,

or any, measures to protect tlre plaintiffagainst the inhalation of dust and that they

had failecl to provide exitaust appliances,

although tlre nature of the process rnade

it practicable so to do.The Court heid thatsince at the tirne when the plaintiffbrecame

serioLrsly affected witlr silicosis, tlre dust

emitted in the process of knocking out was

not knowrr to be injurious, that s. 47('l)whiclr imposes an obligation to taketr)easures to prorect en]ployees agalnst

dust which is likely to be injurious did notimpose a statutory dr-rty on the def-endarrts

to protect tlre plairrtiff against this dust. As

such, a defendant cannot be heldblameworthy for carrying on processes

where it is impossible to institute any

effective safety measures because the law

does not compel a man to do theimpossible.

Proving The Offence

The proof that a certain n'teasure was notpracticable is an essential ingredient of theoffence under the 05H legislation and thisburden falls to the clefence. Hence, in a

prosecution case,the prosecutor will allege,

in relevant breaches of legislation,that thedefendant (employer) lras not done allthatis practicable or reasonably practicable toreduce the risk to health and safety, and it

is then for the defence to show on balance

of probabilities (the "civil law standard")that they did all that was practicable orreasonably practicable, Likewise, once tlreprosecution has established a prima facie

case, i.e. the elements of the offence have

been proven, the burden is then on thedefendant (employer) tcl satisfy the courtthat it was not practica[rle or reasonablypracticable to do more to control the risk

than was in fact done.

T'he decision in the case of AvtociatedDairies. v Hartley6 would be of specialinterest as far as this qualification is

corlcerned, although irr tlre UK's

legislation pertaining to occupationalsafety and health (particularly the Health

a nd Safety at Work, etc. Act !974),the term'reasonably practicable'is nrostly used tointrod uce a qualification.

ln this case, the company had 66 depotsaround the UK and had calculated that ifit provided safety boots to all of itsenrployees who rnight need them, thecost would be f 20,000 in the first year andf '10,000 thereafter. 5o the companyintroduced a scheme whereby as a resultof a Factory lnspector's improvement

notice, it offered its employees a creditfacility 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 toprovide tlre footwear free of cha rg e. Later,

an accident happened at one of thecompany's premises when a roller trucl<

injured an enrployee's toe. He had notpurchased and was not wearing safetyfootwear. Only six of the staff at thepremises concerned had taken up thefirm's offer,The outconle of the case was

that the firnr argued that 1t!{_4_ted in

accordance with tlad-g.ptgctice and hqddorie enorgh to-uronstrate what was

reasonably practicable.T[re Judge ag reed

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 forthe court to decide as a question of fact,based on the evidence that can beadduced, whether or not something was

practicable or reasonably practicable,Notwithstanding the difference of theterm, the interpretation of reasonablypracticable and practicable is stillconcentrated on the cost benefitexercise, weighing the cost of renrovingor rnitigating the hazards against thelikely severity of the hazard or risk inquestion.

Fnd Note:I [1945] 1 All Eng Report, p,387.

'? [1 952] 1 All Eng Report, p.679 at 684..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

, 1, Barrett, B,,& Howells, R. 1997,

, , ,, Fr.amewarks on;.,Occupational

, i Health and Safety L'ovv, 3td Ed,

2. Clarke,T.199B. Managing Healthand Safety in Building and

: : Construcl!on. , Lond on:Butterworth Heineman n.

3, Munkman, ),1990. Employer's

'Liability at Common Law,11'h Ed.

4, Health and Safety Executive(HSE) Enforcement Gr-ride (Errg &

Wales). ffi

25

,',i ia ste rii.:iu i I d e rs3RD OIIAFTEF 2OO5

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

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

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