Documenti di Didattica
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Spring 2018
Dwight Barratt
COHS 208
Intensive Course
Occupational Health and Safety Law
COHS 208 – History of Common Law
• Prior to the 1700 -1800’s, the issues of workplace safety were not really an
issue – the world was agricultural
• Then came the Industrial Revolution and the introduction of steam engines,
and large power sources
• Workplace injuries were now far more severe as well as far more frequent,
and there were more workers as urbanization began
• Over the course of a century and a half, cities grew, and industrialized
Questions:
• What happened when a worker was killed?
• What happened to their family?
• What happened when cities began to be filled with crippled workers, widows
and orphans?
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COHS 208 – Types of Law (some, not all)
• Constitutional Law - discussed in the first lecture
• Defines the relationship between the citizen and the state
• How will the citizen be governed, what are his/her rights and freedoms, what
power does the government have, how are the powers divided
• Criminal law – Crimes are considered a violation of the society as a whole not just
the victim of the crime.
• It is the Crown that prosecutes criminal offences on behalf of the state.
• Usually requires intent, standard is “beyond a reasonable doubt”
• Regulatory law – Deals with crimes that are not inherently evil, but illegal because
they are prohibited by legislation
• Violation is proof, but intent is not required
• Absolute liability
• Strict liability
• A brief survey of the history of common law of OHS shows failures on the part of
common law to adequately protect workers which led to the emergence of OHS
legislation and the state run, no fault workers’ compensation system
• In the 19th century, a worker who is injured on the job could sue the employer for
damages through a cause of action in tort of negligence – Common Law
• Worker (plaintiff) would allege that the employer (defendant) had failed to take
reasonable care with the expectation for damages
• Workers were usually unsuccessful in court which led to workers not considering
lawsuits
• Workers failure in court was due to common law defences used by their
employers
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Historical Common Law Defences
1. “Volenti Non Fit Injuria”
- “to him that is willing, no harm is done”
- “assumption of risk rule”
- if a worker knows of hazards on his job and consents to to doing the job, he
shouldn’t blame the employer if injured
3. Contributory Negligence
- under this rule, employer is absolved of any responsibility where the worker
can be proven to have contributed to the cause of the injury
- this used to be an all or nothing rule in those days
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- today, the court will divide fault and damages i.e. a worker
with 10% fault will get 90% of damages
Historical Common Law Defences
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Other Hurdles Faced By Injured Workers
1. The burden of proof on the worker - “he who asserts must prove”
4. High Cost of Litigation – “only the rich can afford”, no legal aid
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COHS 208 – History of Common Law
Priestly v. Fowler (1834) 3M + W1; E.R. 1030
Facts: Mr. Priestly, a butcher was thrown violently to the ground and fractured his thigh when the
carriage he was in broke down. Won at trial, but lost on Appeal.
Issues: is D liable in law under the circumstances for the state of the carriage causing accident and
serious injury to the plaintiff. Appeal heard by Lord Abinger.
Reasoning:
- from mere relation of master and servant no contract and therefore no duty can be implied on the part
of the master to cause the servant to be safely/securely carried or to make the master liable
- allowing this action "would be an encouragement to the servant to omit that diligence and caution
which he is in duty bound to exercise on behalf of his master," and which offers much better
protection against injuries "than any recourse against his master for damages could possibly afford."
- allowing the case will open floodgates to vicarious liability
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COHS 208 – History of Common Law
Facts: Worker lost an arm to a lumber saw, won at trial, but lost on appeal
Issues: Is the D negligent by failing to guard the saw when there was no requirement to do so?
Reasoning: - D operated a saw which was not equipped with a guard, and which did not require a guard
for proper operation. Therefore the saw was not defective and there was no deficiency.
- The decision went to the definition of the word “moving”.
Before there was specific legislation (Regulatory Law) dealing with compensating workers who were
killed or injured on the job, it was difficult for them to win in court.
This changed with Workers’ Compensation Law, but only for those covered.
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COHS 208 – Current Common Law (which applies to
workplaces not covered by Workers’ Compensation law)
DeLeavey v. Brinkman (1986) 68 N.B.R. (2d) 195.
Facts: Employee injured while manually moving a potato loader contrary to the specific instructions of
the defendant farmer
Issues: Is the D negligent by failing to keep adequate equipment in safe and proper condition
Reasoning: - Plaintiff’s action in moving this particular equipment contrary to D’s warning against
manually moving it constitute assumption of risk of injury
- Although the arm of the potato loader had been altered by the farmer into fixed position,
the equipment was still adequate and the employee was solely responsible for his
injuries
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Employer’s Common Law Duties at Present
Not all workplaces are covered by Workers’ Comp. For
those that are not, the employer has duties:
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The Workers’ Compensation Act Modifies the Common Law
• The Following sections of WSIA modify some of the common law rules governing lawsuits by
workers (WSIA will be discussed later)
Employer liability:
Section 114. (1) A worker may bring an action for damages against his or her employer for an injury
that occurs in any of the following circumstances:
1. The worker is injured by reason of a defect in the condition or arrangement of the ways, works,
machinery, plant, buildings or premises used in the employer’s business or connected with or
intended for that business
2. The worker is injured by reason of the employer’s negligence.
3. The worker is injured by reason of the negligence of a person in the employer’s service who is
acting within the scope of his or her employment.
(2) If a worker dies as a result of an injury that occurs in a circumstance described in subsection (1), an
action for damages may be brought against the employer by the worker’s estate or by a person
entitled to damages under Part V of the Family Law Act. 1997, c. 16, Sched. A, s. 114.
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The Workers’ Compensation Act Modifies the Common Law
• The Following sections of WSIA modify some of the common law rules governing lawsuits by
workers (WSIA will be discussed later)
Liability of owner, etc.:
Section 115. (1) A worker may bring an action for damages against the person for whom work is being done under a
contract and against the contractor and subcontractor, if any, for an injury that occurs in any of the following
circumstances:
1. The injury occurs by reason of a defect in the condition or arrangement of any ways, works, machinery, plant,
building or premises. The person for whom the work is being done owns or supplies the ways, works,
machinery, plant, building or premises.
2. The injury occurs as a result of the negligence of the person for whom all or part of the work is being done.
3. The injury occurs as a result of the negligence of a person in the service of the person for whom all or part of
the work is being done, and the person who was negligent was acting within the scope of his or her
employment.
(2) Nothing in subsection (1) affects any right or liability of the person for whom the work is being done and the
contractor and subcontractor as among themselves.
(3) The worker is not entitled to recover damages under this section as well as under section 114 for the same injury.
1997, c. 16, Sched. A, s. 115.
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The Workers’ Compensation Act Modifies the Common Law
• The Following sections of WSIA modify some of the common law rules governing lawsuits by workers
(WSIA will be discussed later)
Voluntary assumption of risk 7 Contributory Negligence:
Section 116. (1) An injured worker shall not be considered to have voluntarily incurred the risk of injury in his or her
employment solely on the grounds that, before he or she was injured, he or she knew about the
defect or negligence that caused the injury.
(2) An injured worker shall not be considered to have voluntarily incurred the risk of injury that results from the
negligence of his or her fellow workers.
(3) In an action for damages for an injury that occurs when a worker is in the service of an employer, contributory
negligence by the worker is not a bar to recovery,
(a) by the injured worker; or
(b) if the worker dies as a result of the injury, by a person entitled to damages under Part V of the Family
Law Act
(4) The worker’s contributory negligence, if any, shall be taken into account in assessing the damages in such an
action. 1997, c. 16, Sched. A, s. 116.
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The Workers’ Compensation Act Modifies the Common Law
• The Following sections of WSIA modify some of the common law rules governing lawsuits by workers
(WSIA will be discussed later)
Insurance proceeds:
Section 117. (1) If an employer is insured against the employer’s liability to a worker for damages, the
employer’s insurance shall be deemed to be for the benefit of the worker.
(2) If the worker suffers an injury for which he or she is entitled to recover damages from the
employer, the insurer shall not, without the consent of the worker, pay to the employer the
amount for which the insurer is liable in respect of the injury until the worker’s claim has been
satisfied. 1997, c. 16, Sched. A, s. 117.
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The Employer’s Common Law Duties Towards Workers
• In England, there is a mix of workers’ compensation regime and possibility of lawsuit by
injured employee
• In Canada, there are workplaces where workers’ compensation laws do not apply and so
injured workers can sue their employers i.e. banks, insurance companies, trust companies
and other financial institutions, law firms, real estate agencies, business associations,
recreational and social clubs, trade unions, private schools and universities, children’s
camps, travel agencies, and health clubs
• The broad common law duty today is that employer take reasonable care to ensure a safe
workplace
• OHS Act of different jurisdictions in Canada codified the common law by turning common
law duties into statutory duties
• Rather than workers suing the employer today, the Crown Attorney prosecutes violation of
OHS legislation
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Workers’ Compensation History
• 1883-84 Germany, under Bismarck, establishes the first workers' compensation statute.
• 1886 Legislation titled Ontario Workmen's Compensation Act passed, but this was not a
true no-fault insurance scheme. Rather, the Act tended to limit the legal remedies of
injured workers.
• 1897 Britain passes workers' compensation legislation. It has the following elements:
– 1. automatic compensation
– 2. an arbitration procedure
– 3. scales of compensation
– 4. allowed a worker to go to the courts as a final recourse
• 1907 Britain. The 1897 Act was broadened so as to increase employers' liability. It was
this Act which was copied by a number of American jurisdictions.
• 1907 The Pittsburgh Study. Report galvanized public opinion in favour of ensuring
dependents of workers killed at work received adequate compensation and support.
• 1908 U.S. legislation passed. It was for federal government employees only.
• 1911-15 About 30 U.S. states passed compensation laws.
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The Meredith Royal Commission
• Following Justice William Meredith’s Commission work, the Ontario Workmen’s
Compensation Act was passed in 1914 coming into effect January 1, 1915
• Based on a global review of what was happening in other countries, provinces
• The same 1915 Act with amendments is the current Workplace Safety and Insurance Act of
Ontario (WSIA)
• “Historic tradeoff” in Meredith is that workers gave up the right to sue their employers but
gained guaranteed protection against income loss due to industrial accidents and disease
• The Ontario WC Act of 1914 was used as a model by other Canadian jurisdictions which
enacted compensation legislation
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Meredith’s Principles
• Public, Compulsory System – not to be run by private for profit insurance
companies
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Other lawsuits - Inspectors and Officers
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Liability - Environmental
Just to finish off the topic of Common Law actions:
Scenarios:
- A facility has had an accident and there has been a sudden
release of a hazardous (or very annoying) material which
harmed the neighbours in some way, or a slow chronic harmful
release; can there be a cause of action?
Answer:
- The neighbours must first of all fit their lawsuit into a recognized
“cause of action”
- They may have more than one cause of action available to them as
applicable to their situation or facts of their case
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Environmental Causes of Action
3. Trespass:
• Every invasion of property, be it ever so minute, is a trespass
• No damage need be done by the trespass
• No knowledge or intention is necessary
• No interference with enjoyment of property is necessary
Environmental Causes of Action
4. Nuisance Generally
• interference with enjoyment of property - harm
• things that have been found to interfere: noise, vibration, noxious odour, air
and water pollution and dangerous structure etc.)
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Environmental Causes of Action
• Defences to Nuisance:
• Remedies:
2. Damages
Environmental Causes of Action
- Elements:
1. Claimant must suffer some damage
• By 1900 workers who were injured on the job had a very difficult time
suing their employer because of common law
• The problem of “widows and orphans” forced governments to do
something – introduction of workers’ compensation schemes
• Workers’ Comp addressed the problem for those covered, and
changed Common Law for those not covered – and there are now
many other employment law guidelines covering the workplace
• Still a possibility that a workplace incident may open the door to
liability, but that tends to be in the realm of product liability
• Several grounds to sue on “environmental grounds”