COVID-19 in Perspective: A Prophecy on Looming Negligence Claims (3)

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Ghana Law Hub

By: Christine Selikem Lassey (University of Ghana Law School)

This final essay follows two others who wanted to explore the nature and terrain of negligence claims in this COVID-19 era. The first discussed doctors’ liability during COVID-19 and examined the possibility of immunity, while the second examined people’s liability for the transmission of COVID-19 to others[i]. The purpose of this report is to examine the extent of negligence in the professional relationship between employer and employee. The need for this discussion is all the more relevant given that a factory worker infected 533 others at a fish factory in Tema when the country was grappling with the pandemic in its early stages[ii]. At this point I will outline the employer’s duty of care vis-à-vis its employees in terms of customary and statutory law and then make some comments on the state of the law.

The employee or third party in a negligence claim must prove that the employer owed him / her a duty of care that was violated by the employer and that he / she suffered damage as a result of the violation. Employers are obliged to their employees in accordance with general law and statute. Owusu-Addo J in Issaah against Mim Timber[iii] In short, the common law duty is a threefold duty to provide competent personnel, adequate material and an adequate system of work. This triple duty does not claim to be exhaustive, as case law has recognized the fourth duty to ensure a safe workplace. The common law declaration of due diligence has received a blessing in the EU Labor Act 2003, Act 651.

First, employers must provide workers with adequate tools and materials that are reasonably necessary for the job. If the worker’s duties are inherently dangerous, the employer must provide personal protective equipment and ensure that it is used. A global pandemic does not override this obligation, but rather shows that employers must conscientiously perform their duty. The nature of the business determines the personal protective equipment that should be provided. Medical employers must protect their employees from contracting COVID-19 by providing personal protective equipment. Unfortunately, some doctors have signed COVID-19 and fallen into service. The Ghana Medical Association attributed this in a press release to the lack of personal protective equipment, among other things.[iv] Due to the lack of personal protective equipment at the onset of the pandemic, some employers directed suo motu, or as directed by the government, unnecessary staff to stay at home. Others took advantage of advances in technology and migrated online to provide services. If employers do not provide personal protective equipment or implement alternatives to personal working conditions or other measures that are appropriate to protect employees from contracting COVID-19 in the workplace, they may be exposed to negligent claims.

Second, the employer must provide a safe work system. in the General cleaning construction v Christmas,[v] The respondent worked for the complainant as a window cleaner. While he was cleaning a window, it closed unexpectedly and he fell and sustained injuries. The complainant refused liability on the grounds that the respondent had twenty years of experience and should have recognized the risk. The court rejected this argument, stating that the worker was not required to identify risks and take precautionary measures. The government of Ghana has taken measures to protect the entire population. However, this does not release other employers from their duties. The House of Lords in Wilson & Clyde Co Ltd v English[vi]stressed that an employer’s duty to provide a safe work system cannot be delegated. When the government adopts the COVID-19 Precautionary Protocol, employers must ensure compliance in their workplace. Assuming the work system requires person-to-person interaction, consider social distancing or explore options for working from home.

Thirdly, the employer must make competent employees available to its employees. At the start of the pandemic, most hospitals did not have enough front-line staff to handle the growing number of cases. As a result, some countries have approved volunteers and medical students in the last year to serve on the front lines in various roles as health workers. Indeed, this initiative could create a liability chain reaction. Employers have a legal obligation in accordance with Section 118, Paragraph 2, Letter C f Labor Act 2003, Act 651 to;

” Provide the necessary information, instructions, training and supervision, taking into account the age, literacy level and other circumstances of the employee, in order, as far as this is reasonably possible, to ensure the health and safety of the other employees who work at the respective workplace involved work. ”

Note that an Accra hospital will allow Volunteer X services to work in a testing center. Volunteer X negligently exposes laboratory staff to COVID-19 by spilling a blood sample. In this case, the hospital will generally be held liable unless the courts lower the standard of care of Volunteer X due to the benefit society derives from their service or the government has granted immunity to frontline workers. Similarly, the employer is liable if employee X infects others with COVID-19 in the workplace. Interestingly, Section 118 (2) (c) provides employers with a haven from which to avoid liability when actions are taken that are reasonable to ensure the safety of other workers. Indeed, a crash course in patient care may not be accepted as adequate training for health workers, but it is not “appropriate” in a public health crisis. In essence, the pandemic, inadequate staffing and pressure from the health system are useful factors in determining a breach of the duty to provide competent workforce.

The triple duty of care of the House of Lords in Wilson & Clyde Co Ltd v English[vii] and confirmed by the Ghanaian court in Issaah versus Mim Timber is not exhaustive. The case law has long recognized the duty to create a safe job. The draftsman takes the view that the court did not intend to strictly prescribe the scope of the employer’s obligation in the EU Clyde case above. Admittedly, on page 74 of the report, the court found that;

“… It is always difficult to define a principle of law so precisely that its application to all circumstances is beyond question.”

in the Lee Wai Man & Another v Wah Leung Finance Ltd.,[viii] The employee died as a project manager on the defendant’s construction site. A sudden gust of wind blew him into an unguarded hole during an inspection. The courts held the defendants responsible for failing to ensure the location was safe for work. The Labor law 2003, Act 651 also offers in Section 118 (2)) (h) “that an employer prevents accidents and damage to health caused by work in connection with, in connection with or during work by minimizing the causes of the hazards associated with the work environment”. Likewise in Favelle Mort Ltd. V. Murray[ix] The respondent, a project engineer, was employed by the complainant in Sydney and sent to New York. On his return he was diagnosed with viral meningoencephalitis. The court ruled: “Every illness was suffered by an employee locally and during his employment. It is not a disease of autogenic origin in his body, but a disease that occurred due to the presence in the place, the use of the organism or some other substance that penetrated into his previously healthy body falls or attacked them, was realizable. “[x]

Likewise in Houghton V. Hackney Ward Council, Diplock J. found that the test to determine whether an employer has failed to do so is “Has the employer exercised reasonable care, considered the risk appropriately, and considered the other circumstances appropriately?”[xi]

The combined effects of Section 118 (3) and (4) of the 2003 Labor Act, Act 651 The employee is obliged to use the personal protective equipment provided and the employer is not responsible for any injuries suffered by the employee as a result of non-compliance. Given the easing of COVID-19 restrictions in Ghana, are employees required to return to work? More important, Section 119 (3) of the 2003 Labor Act provides that;

“An employer must not require an employee to return to work if there is still an imminent and serious risk to the life, safety or health of the employee.”

Ultimately, it is a question of fact whether COVID-19 poses a serious workplace hazard. While the virus hasn’t been completely eradicated, employers are now better able to keep workplaces safe. The writer claims that COVID-19 is not an “imminent and serious threat” when health protocols are in place.

In summary, COVID-19 has deepened the duty of employers to their employees. Employers are expected to give priority to the health and safety of their workers. Despite the new challenges the pandemic poses to the already stable rules for employer liability, the rules are robust enough to overcome these hurdles.

[i] https://ghanalawhub.com/covid-19-in-perspective-a-prophecy-on-the-looming-negligence-claims-1/ and https://ghanalawhub.com/covid-19-in-perspective-a -prophecy-on-the-threatening-negligence-claims-2 / # Comment-10483

[ii] https://edition.cnn.com/2020/05/11/africa/ghana-factory-coronavirus-infection-intl/index.html

[iii] [1980] GLR 430-439

[iv] https://www.modernghana.com/news/1013109/covid-19-gma-worried-over-lack-of-ppe-shortage.html

[v] 1953 AC 180

[vi] 1938 AC 57

[vii] ibid

[viii] [2004] 1 HKLRD

[ix] (1976) 133 CLR 580

[x] Available at: https://jade.io/article/66579

[xi] QBD 1961 615, 618

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