Criminal Liability of Company officials
On 13th February 2019 the Court of Magistrates (Criminal Judicature) presided over by Magistrate Josette Demicoli delivered its sentence in Pulizija vs. Deguara et concerning the death of a young 26-year-old construction worker.
At the heart of this case was the notion of criminal liability of the officials of the company in question, Devlands Limited, and the injury sustained by the victim, James Aquilina.
Offence of Involuntary Homicide resultant due to Company Negligence
The Court found all the directors and foreman individually and personally liable for involuntary homicide of Aquilina under Article 225 of the Criminal Code. The incident occurred when Aquilina fell backwards into the shaft of the lift which was loosely covered by a piece of thin plywood. Inevitably this was not enough to hold the weight of a human being, resulting in Aquilina falling approximately 9 stories to his death. The Court stated that the directors of the company had neglected to provide the necessary health and safety standards adequate in preventing damages of a physical, injurious or fatal nature for its workers on the construction site. This included a lack of reassurance of an appropriate evaluation of the site, or a sufficient and systematic evaluation of the dangers to health and safety that could be present on a construction site as required in Article 10(1) of Legal Notice 36 of 2003. Moreover, the Court found that the directors and foreman did not take the necessary steps to implement safety measures in areas of the site which consisted of unsafe heights as stipulated in Regulation 5 of Schedule IV (Part B) of the Legal Notice 281 of 2004
Other Offences confirmed by the Court – Health and Safety Requirements by the Employer
As mentioned, the co-accused were being charged under Article 225 of the Criminal Code, namely involuntary homicide caused by negligence. The Court quoted the Criminal Court of Appeal in Il-Pulizija vs Louis Portelli (4th February 1961) wherein the Court held that for the crime of involuntary homicide to be proven, there needs to be negligent voluntary behaviour generically consistent with imprudence, negligence, carelessness, unskilfulness in one’s art or profession, or non-observance of laws, regulations or orders which creates a causal link to the harmful involuntary incident.
In ascertaining guilt due to negligent behaviour, an analysis needs to be conducted on whether the accused acted as the reasonable man on the street who acts as a bonus pater familias. This conduct refers to the generic conduct that an intelligent, diligent and sensible person should possess in caring for others while conducting his duties. While this line of reasoning is a common line of reasoning observed by the judiciary, leeway is often left in evaluating diligence on a case by case basis. Furthermore, in Il-Pulizija vs Richard Grech (23rd March 1996), the Court quoted the jurist Francesco Antolisei, who stated that for one to comprehend the root of culpa one must keep in mind that, many a time, within the social spectrum, situations that involve direct conduct in achievement of a specific end, can give rise to harmful consequences for third parties. The Court concluded that even in cases where there has been non-observance of regulations, the essence of culpa is the same as in case of lack of foresight, negligence and imprudence.
Personal Criminal Liability of Foreman – The Company vs. Company Officials
The foreman pleaded he was not to be accused in his personal stead like the Directors of Devlands. Here the Court quoted Il-Pulizija vs Martin Pillow (Qorti tal-Appell Kriminali, 18th November 2011) on personal criminal liability. Similar to the case at hand, in Pulizija vs. Pillow reference was made to the fact that in circumstances like these, the bill of indictment need not explicitly mention that the accused was being charged in his capacity as director or manager (etc) of the company. This is due to the fact that vicarious liability in tort cases such as the one at hand, create personal and individual liability for officials involved, in that they personally assume the carelessness of the company itself. The Court found that in such cases it is sufficient to summon the director alone or another official without actually summoning the company itself. In this case the Court adopted the same line of reasoning.
Personal Criminal Liability of Foreman – The Nature of the Official’s Occupation
Though the foreman’s line of defence was that he did not possess the title of foreman within Devlands, the Court pointed out that no sufficient evidence, such as documents of employment Agency, JobsPlus, was produced, nor was his employment contract with the company exhibited. The nature of his occupation resulted solely from what was stated by witnesses. One such witness stated that the foreman directed the workers on what they needed to do in the performance of their work, and that he would be present at the construction site almost every day. Regardless of his job title or denomination, the Court concluded that counted was the nature of his work and his role on site.
Reference was also made to the definition within Article 2 of the term “employer” in the Occupational Health and Safety Authority Act, Chapter 424 of the Laws of Malta which states that ““employer” means any person for whom work or service is performed by a worker or who has an employment relationship with a worker, and includes a contractor or subcontractor who performs work or supplies a service or undertakes to perform any work or to supply services”. The prosecution aptly argued that this definition is not merely applicable to directors of a company or the employer, but is also extendable to other persons who, directly or indirectly, manage the works taking place on site or at the workplace. The Court concluded that the foreman definitely occupied such a managerial position on the construction site.
Court-appointed Experts’ Opinions
Court-appointed experts asserted that there seemed to have been a severe lack of safety precautions in relation to the lift shaft. After careful analysis the Court confirmed that there was no secure cover over the shaft, and in reality, the flimsy cover of plywood which was covering it was insufficient to comply with the appropriate level of health and safety needed on such a site. Nor was there a sufficient level of supervision, or any continuous reporting and evaluation of the occupational risks associated with this type of work. The court stressed that there had been no reasonable foresight on the part of the employer in relation to the ways and means in which incidents could be prevented or even dealt with.
Duties of the employer towards construction workers
The defendants were accused of negligently not taking the proper care in preventing physical and psychological occupational ill-health, injury or death on the work place in accordance with Article 6(1) and (2) of Chapter 424 of the Laws of Malta (The Occupational Health & Safety Authority Act).
In Il-Pulizija vs. Lawrence Saliba et (Qorti tal-Magistrati (Malta), Qorti ta’ Gudikatura Kriminali, 22nd June 2015) the court concluded that due to the provisions of Article 6, the obligation imposed on every employer is that of ensuring the proper level of health and safety of every single person that may possibly be affected by the works being performed for the employer. The latter must ensure that the health and safety instruments are all at par with legal requirements by taking the necessary measures, including implementation of prevention measures, as well as identifying and evaluating the dangers associated with the line of work. The Court was quick to point out however that the fact alone that an incident takes place at the work-place, even if fatal, does not necessarily mean that the person in charge failed to meet statutory health and safety standards.