A construction company was heavily fined for breaching health and safety regulations following the death of a young boy, who fell from scaffolding suffering fatal head injuries.

More robust fencing should have been used to prevent access to the scaffolding, but this had not been done, although the company had informed local residents and schoolchildren of the dangers.

The construction company pleaded guilty to breaching the United Kingdom's Health and Safety at Work Act in that they failed to ensure the safety of persons not in their employment by preventing unauthorised access to the scaffolding. Now, the incident did not happen in Bermuda - but it could have - and demonstrates that companies must take health and safety seriously and carry out risk assessment so that they can adopt appropriate safety measures.

Bermuda has similar legislation to that of the UK. The Health and Safety at Work Act of 1982 ("the Act") was brought into force in April 1984. The establishment of health and safety committees, inspectors and further regulations and codes of practice supplements the legislation.

The Act imposes a duty upon every employer to ensure "so far as is reasonably practicable" the health and safety and welfare at work of all employees including safe plant and systems of work, and the provision of information, instruction, training and supervision to achieve this objective.

As with the UK, the Bermuda legislation also extends the duty of every employer to ensure that persons not in the employer's employment who may be affected are not exposed to health and safety risks "so far as is reasonably practicable".

These duties are also extended to people controlling premises to which people not employed there have access as well as to people who design and manufacture articles for use at work.

How is 'reasonably practicable' to be interpreted? Unusually for legislation with criminal consequences, but again following the UK statute, it is expressly stated that the responsibility rests with the "accused" to establish that it was not "reasonably practicable" to do more than was actually done to satisfy the duty or requirement.

In Bermuda if a person is found guilty of an offence under this legislation the punishment ranges from a fine to imprisonment, or both, and if the offence is continuing, there is an additional fine for each day that it continues. There are further penalties if the offences are repeated.

If the offence is committed by a company not only is the company itself liable but if the offence is committed with the "consent or connivance of, or is attributable to any wilful neglect" by any director, manager or secretary these persons may also be prosecuted.

The UK Government believes it is possible to do better. In 2000 it launched an initiative entitled "Revitalising Health and Safety" including a code of practice on company director responsibility which would require a company to appoint an individual director for health and safety.

Further ideas being considered in the UK include: Formal and public acceptance by the board of directors of their collective role in providing health and safety leadership.

Acceptance by each member of the board of directors of his or her individual role in providing health and safety leadership.

Recognition of the board of directors' role in engaging the active participation of workers in health and safety management.

Ensuring that the board of directors is kept informed of, and alert to, relevant health and safety risk management issues.

In the UK these proposals are being considered in order to give greater priority to health and safety matters by establishing the collective responsibility of a board of directors, as well as the individual responsibility of the directors.

There is a legitimate concern that if a health and safety director was appointed this person would become the individual target not only within a company but also by prosecutors and the general public. It is to be hoped that any remedial legislation could establish not only the responsibility of the health and safety director but also the responsibility of other directors and the board of directors.

This might well be an area of law in which Bermuda should improve its present legislation and implement any changes before the UK does.

@EDITRULE:

Attorney John Evans is an Associate with A.S.&K. Services Ltd., which provides corporate administration and resident representative services to client companies of Appleby Spurling & Kempe. Copies of Mr. Evans' columns can be obtained on the Appleby Spurling & Kempe web site at www.ask.bm.

This column should not be used as a substitute for professional legal advice. Before proceeding with any matters discussed here, persons are advised to consult with a lawyer.