Occupational health and safety law and jurisprudence : are we moving towards a strict liability approach?

Abstract

This thesis will attempt to investigate whether our law and Court cases reveal a trend towards the application of a regime of strict liability in the context of occupational health and safety. To this end, Chapter one will attempt to briefly examine the general outline of the duties of employers and employees under the relevant occupational health and safety laws. This will include a short comparison between the fragmented and piecemeal approach of the old laws with particular reference to the subsidiary legislation still in force today relating to the subject, and the modern comprehensive laws that were adopted by Malta pursuant to a number of directives of the European Union. At this point there will be a tentative reply as to whether there has been a move in our laws towards a higher degree of diligence that is required of employers. Chapter Two will commence by dealing with the problem as to the legal basis for the employer's liability - whether a claim can be based on tort, on contract or on both. It will then proceed to examine the traditional concept of the care and diligence to be exercised by the bonus paterfamilias, starting from the basics of the Civil Code, referring constantly to Court judgements in general, with specific focus on those that deal specifically with occupational health and safety. This analysis will become very relevant in Chapter Four when we will be able to draw comparisons between this traditional concept and the way it is being applied in practice. Chapter Three will deal with a general discussion of the concept of strict liability, analysing the all-embracing laws of France and the piece-meal approach adopted by England, comparing them to the Maltese situation. Having examined the general notions of fault-based and of strict-based systems of law, Chapter Four will examine whether the general trend is that of moving away from the traditional concept of fault towards a stricter form of liability. This will be done predominantly through an examination of recent judgements (post-1995). It will also include a comparison between the recent and the older judgements. Finally, the Conclusion will seek to suggest a series of possible changes in the general approach of the Courts and/or of the legislator.