A worker falls from height. Now what?
PMV Middle East explores the legal implications of working at height accidents in the UAE and why organizations should understand local legislation thoroughly and have a collective action plan for reporting to authorities
According to the International Labour Organization estimates, approximately 6,400 people die from occupational accidents or diseases and 860,000 people are injured on the job every day. The biggest cause of fatal accidents in workplaces in most of the developed world have been falls from height, from scaffolding, ladders, ropes, and access platforms.
The International Powered Access Federation (IPAF), in its fatal injury rate analysis for 2017, reveals that the most common cause of deaths related to access platforms in 2017 was electrocutions, taking over from falls in 2016, and countries that saw a spike in the number of fatalities included Spain, France, Italy and the US. The US, while it has around 43% of the global mobile elevating work platform (MEWP) fleet within its borders, saw the percentage of total reported fatalities rise to more than 80%.
IPAF’s safety campaign for 2018-19 outlines why operators and managers should carry out full risk assessments, choose the correct equipment for the job, conduct site and machinery inspections, use trained and familiarised operators under proper supervision and implement adequate segregation from other plant machinery and traffic.
According to IPAF, four major causes of accidents that can result in falls from MEWP platforms are risky operator behaviour, exiting the platform at height, setting up near other machinery or vehicles, and mechanical failure. These accidents can be prevented by proper planning and safely managing the use of MEWPs. But, what should site and safety manager do if a worker falls from height and gets injured or dies, aside from contacting emergency services and notifying the authorities?
What are the legal implications of such accidents? Do the site managers and their senior management have sufficient knowledge about the local legislation, and the dos and don’ts of reporting incidents to authorities?
These questions were answered at the recent IPAF Middle East Convention 2018 held in Dubai, where Ahmed Khalil Abdulkareem, principal safety engineer, health & safety department, Dubai Municipality, and Rebecca Kelly, partner at law firm Morgan Lewis, jointly presented insights about typical working at height accident investigations in the UAE, reporting processes, local legislation and individual and corporate liabilities.
The investigation process
According to Rebecca, the investigation processes in the cases of fraud and health and safety accidents in the UAE generally involve the same courts and public prosecutors. However, organisations may need to interact with other jurisdictions and authorities depending of the nature of the accidents and their locations.
In Abu Dhabi, a working at height accident investigation will involve authorities such as the Abu Dhabi Occupational Safety and Health Centre (OSHAD), along with the local municipality, police and civil defence. Other regulatory bodies could be involved depending on the type of work site and industry sector.
In Dubai, the Dubai Municipality plays a pivotal role in investigating accidents on construction sites. For this purpose, it established a dedicated accident investigation team (AIT) in 2016 under its health and safety department that works 24/7 to handle all kinds of accidents that occur in construction environments, excluding criminal cases, suicides and traffic accidents.
When the Dubai Municipality receives a call on the emergency number 800900, the AIT team is dispatched to the accident site to start the investigation process.
The first step followed by the AIT is securing the accident site in order to prevent tampering of the accident scene.
“It’s an essential requirement for the investigation team to seize the site of an incident. If an individual tampers with evidence on an accident scene, then the individual or company could be charged with a criminal act,” says Abdul.
The Dubai HSE reporting system
The Code of Construction Safety Practice has different definitions for different types of injuries. All those definitions may require that any injury be reported to the Dubai Municipality and not only the worst case scenario of a fatality.
“Organisations need to be aware about their reporting obligations for the purpose of the government’s statistics requirements. It may be difficult to determine the extent of injury at the time of the accident or on the same day, but if it’s reported immediately, then the organisation is more protected if the injury become severe a few days later,” says Ahmed.
The external process for incident notification, reporting, recording and data usage involves the following steps:
- The first witness to an incident informs the supervisor, who informs the manager
- The manager identifies the type of incident and notifies the concerned authorities such as the Dubai Municipality, Dubai Police, and Dubai Civil Defence
- The Dubai Municipality’s Accident Investigation Team arrives and prepares to submit the investigation report
- The investigation report leads to legal proceedings
- Collection and analysis of the incident data
The internal process involves in the following steps.
- The first witness to an incident informs the supervisor, who informs the manager
- The manager identifies the type of incident and begins an internal investigation through interview and conducts a root cause analysis
- Compilation of an injury report
- Collection and analysis of the incident data
- Development and improve of control measures
- Creating awareness
- Reducing injury rates
The minimum requirements by the Dubai Municipality to be included in the report form submitted by the organisation are the general information of the organisation, incident information, injured employee data, details of injury, description of the accident, root cause identification, and corrective measures.
“The number of days the injured worker is absent from work is crucial. If it exceeds three days, then the incident is registered as an injury. It’s not required to report minor first aid injuries to the government. However, the details of the injury must be recorded by the organisation so that it can be presented upon the request of the authorities. It is also important to provide corrective measures. The Dubai Municipality needs to be convinced that the organisation will not allow an incident to be repeated in the future,” says Ahmed.
Ahmed Khalil Abdulkareem, principal safety engineer, health and safety department, Dubai Municipality.
Understanding the UAE legislation
Rebecca warns that the time for seeking or understanding legislation should not be on the day of an accident.
“All parties involved in construction activities should be aware about the local legislation that applies to each and every construction project and ensure that the provisions of the legislation are included in their applicable policies,” says Rebecca.
The occupational health and safety legislation in Dubai is similar to that in many countries. The variations are due to different legal systems, standards of legislation and enforcement, penalties for breaches, religious and cultural issues, knowledge of enforcement bodies, and degree of monitoring and reporting to enforcement authorities.
The UAE legislation is structured in the form of federal laws, local orders, administrative decision and code of practices. Different laws will apply depending on the location of the construction site, notwithstanding the fact that a company may have its head office in Dubai and a branch in Abu Dhabi. If an accident occurs on a site in Abu Dhabi, it will be governed by Abu Dhabi laws. However, the federal law supersedes the individual laws of all the emirates, and it is a civil law jurisdiction.
“Unlike a common law jurisdiction, a civil jurisdiction is not based on precedent, which means that if an incident occurs today and is treated in a certain way in court, it doesn’t necessarily mean that it will be treated in exactly the same way in court tomorrow. However, there is codified legislation, and laws applicable when there’s an incident are the penal code and civil code. There’s a stark distinction between civil liability under the civil code, which is attached to the company, and criminal liability which is personal and attached to the individual. The criminal liability is contained within the penal code. Any accident investigation will be conducted in accordance with these legislations and, there’s no way to circumvent their application,” explains Rebecca.
Get the facts right early on - there’s no legal privilege
In the aftermath of an incident, emotions are high and people recollect things that perhaps didn’t occur; some are scared or in shock, and they will say and do things that are inconsistent with the facts. The safety policy of a construction company should have the provision to bring people not present at the site to calm the workers and those who can respond to investigators in a clear and concise manner, knowing that whatever they say could impact the rest of the case proceedings. One of the critical initial steps is communicating with workers as a large number of them in the region do not speak fluent English or Arabic. Multilingual staff or translation services should be available to avoid the risk of misinterpretation of facts.
Rebecca points that in cases of reportable incidents, there’re legal obligations that must be taken into consideration, and there needs to be an action plan.
“For example, if there are witnesses, other injuries or fatalities, the organisation may need to notify embassies and seek legal counsel for the injured individuals, witnesses, site manager and safety manager as well as the company,” she says.
Reporting to the Dubai Municipality needs to be done in accordance with the reporting to other authorities, because several authorities will be present on the site after the incident is reported.
“The most critical point with regard to personal liability is inadequate supervision, which suggests that there may have been negligence, which automatically leads to civil or criminal liability. So, the information provided in the report to the Dubai Municipality should be consistent with those in the reports provided to the other authorities, because the initial view of the cause of the accident reported doesn’t change throughout the investigation. If an individual or company takes a certain view about the cause of an accident on the day of its occurrence, it’s almost impossible to change that view later. Therefore, I suggest that companies stick to the facts and don’t withhold any information,” explains Rebecca.
If the case goes to a public prosecutor, it will continue as a further investigation. If the public prosecutor finds anything unclear in the reports submitted by the various authorities, they will summon the site staff again for interviews.
“The individuals and companies involved must respond to such requests. Unlike in common law jurisdictions, there is no concept of legal privilege under UAE law. Any information that is disclosed to the Dubai Municipality, Dubai Police and public prosecutor will be used throughout the proceedings. So, it is recommended to take legal advice as to what is the appropriate way to provide information to the authorities. Organisations should ensure that employees who are witnesses or accused have access to independent legal advice because their interests or consequences may not be aligned with those of the company,” says Rebecca.
Rebecca Kelly, partner, Morgan Lewis.
Public prosecution and penalties
After an investigation report is complied, the Dubai Municipality may refer the case to a public prosecutor. In the case of minor injuries, it’s likely that the outcome will be a misdemeanour (a minor wrongdoing called Jun’ha in Arabic). This results in an individual or company charged for causing an accident and damage to the site, equipment or individuals.
If the accident involves a fatality, there’ll be a recommendation to the public prosecutor to pursue an individual(s) or company with a criminal case for negligence.
“In 99% of such cases, the accused will have to go through the process of a criminal court. There’s no provision in the UAE law for indemnity, where a company can take responsibility for an employee’s actions and defend the case on his or her behalf. In the UAE, the criminal liability is attached to the individual,” says Rebecca.
The accused are charged with two main penalties for negligence: imprisonment under the criminal code, ranging from 1 year to 7 years depending on the nature of the injuries, fatalities and extent of the accident. Additionally, if there’s a fatality, the accused will be required to pay civil damages or blood money of up to AED200,000 as per the ‘Diya’ law.
“The entire process can take anywhere from 18 months to 3 years, and sometimes longer. That’s why it’s important that organisations support their employees and help manage their expectations. A lot of times, convicted individuals are given a custodial sentence, starting with a sentence of imprisonment but later suspended on appeal, usually because the employer appeals that the convicted person will continue to work for them, will not be a flight risk and also won’t be involved further in the supervision of safety,” says Rebecca.
The role of management
Companies tend to assume that all the liability is restricted to the construction site or place of accident. If the investigation reveals that the management is at fault, then they, too, will be named as an accused, irrespective of whether or not they have ever been on a construction site.
“In my experience, no accident happens due to one reason alone. Major accidents are usually the result of systematic management failures with regard to execution of safety policies,” says Abdul.
Abdul shares a real accident scenario from 2017 and the findings of the investigation. In July 2017, the Dubai Municipality received an emergency call from a maintenance work site in Dubai reporting that an access platform cradle had collapsed. When the Dubai Municipality investigation team arrived at the site, they found two workers with minor injuries. The investigation revealed several faults with the cradle and access platform. The four major causes of the accident were: (1) No third-party testing was done or certificate issued after a major alteration on the cradle; (2) No adequate prevention maintenance; (3) No daily inspection prior to use; and (4) No adequate supervision from the person in charge or management.
“We refer to equipment logs to verity the maintenance status of the equipment. Under the safety code, the access equipment supplier or rental company must maintain their equipment maintenance logs. All documents recorded during the investigation should be supported by evidence, and the witness statement is not sufficient. The deciding factor for the public prosecutor will be the equipment logs,” says Abdul.
Abdul also points out the critical role of the safety officer, the person on site responsible for implementation of safety policies and supervision of staff.
“As per the Code of Construction Safety Practice, the safety officers or engineers should primarily perform the role of advisors and not get involved in other jobs on site. They are entrusted with delegating responsibilities and managing safety on sites, and they will have to take full responsibility for accidents on site. My advice to safety officers is not to be overconfident in their experience, however long it may be, and my advice to employers is don’t send your workers to a place or height you can’t reach easily by yourself,” says Abdul.