The legal implications of worker deaths from heights in the UAE
Exploring the legal implications of height accidents and why companies must have a solid plan for reporting to authorities
According to International Labour Organisation estimates, approximately 6,400 people die from occupational accidents or illnesses and 860,000 people are injured on the job every day. The main cause of fatal accidents in workplaces in most of the developed world is falling from height – from scaffolding, ladders, ropes, or access platforms.
International Powered Access Federation (Ipaf), in its fatal injury rate analysis for 2017, reveals that the most common cause of death related to access platforms in 2017 was electrocutions, which took over from falls, which held the top spot in 2016. Countries that saw a spike in the number of fatalities included Spain, France, Italy, and the US. With about 43% of the global mobile elevating work platform (Mewp) fleet within its borders, the US saw the percentage of total reported fatalities rise to more than 80%.
Ipaf’s safety campaign for 2018-19 outlines the reasons 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.
If an individual tampers with evidence on an accident scene, then the individual or company could be charged with a criminal act.
According to Ipaf, four major causes of accidents that can result in falls from Mewps are risky operator behaviour, exiting the platform at height, setting up near other machinery or vehicles, and mechanical failure. These types of accidents can be prevented with the proper planning and safe management of the use of Mewps. But aside from contacting emergency services, what should site and safety managers do if a worker falls from height and is injured, or in the worst case scenario of a fatality? What are the legal implications of such accidents and, more importantly, do site managers in the UAE’s construction sector have sufficient knowledge of the local legislation, and the dos and don’ts of reporting incidents to authorities?
These questions were addressed at the Ipaf Middle East Convention 2018, which was held in Dubai. At the event, principal safety engineer at the health and safety department of Dubai Municipality, Ahmed Khalil Abdulkareem, and partner at law firm Morgan Lewis, Rebecca Kelly, jointly presented insights about typical height accident investigations in the UAE, the necessary reporting processes, specific local legislation, and the individual and corporate liabilities.
THE INVESTIGATION PROCESS
According to Kelly, 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 on the nature of the accidents and where they occur.
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 the industry sector.
In Dubai, the municipality plays a pivotal role in investigating accidents on construction sites. For this purpose, in 2016, it established a dedicated accident investigation team (AIT) within the health and safety department, which works 24/7 to handle all kinds of accidents that occur in construction environments, with the exception of criminal cases, suicides, and traffic accidents. When the Dubai Municipality receives a call on its emergency telephone number, the AIT team is dispatched to the accident site to start the investigation process.
Upon arriving at the scene, the first step taken by the AIT is to secure the accident site in order to prevent tampering.
“It is 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,” Dubai Municipality’s Abdulkareem says.
The Code of Construction Safety Practice has specific guidance for various types of injuries, and this may require that an injury be reported to Dubai Municipality.
“Organisations need to be aware of 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 is reported immediately, then the organisation is better protected if the outcome becomes more severe a few days later,” says Abdulkareem.
The process for incident notification, reporting, recording, and data usage involves several steps. The first witness to an incident must inform the supervisor, who must inform the manager. The manager must then identify what type of incident has occurred and notify the relevant authorities, such as Dubai Municipality, Dubai Police, and Dubai Civil Defence
Dubai Municipality’s AIT prepares to submit an investigation report, which is used for any subsequent legal proceedings. Authorities must also manage the collection and analysis of the incident data.
As a minimum, the report form that is submitted by the organisation to Dubai Municipality must include general information about the organisation, details of the incident, information about the injured employee, details of the injury, a description of the accident, identification of the cause of the accident, and details of any corrective measures taken.
“The number of days that the injured worker is absent from work is crucial. If it exceeds three days, then the incident is registered as an injury,” says Abdulkareem.
“It is not necessary 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 request to the authorities. It is also important to provide corrective measures. Dubai Municipality needs to be convinced that the organisation will not allow an incident to be repeated in the future.”
UNDERSTANDING UAE LEGISLATION
Morgan Lewis’s Kelly warns that the right time to get to grips with understanding important health and safety legislation is not on the day that a serious incident or accident occurs.
“All parties involved in construction activities should be aware of the local legislation that applies to each and every construction project, and ensure that the provisions of the legislation are included in their policies,” she says.
The occupational health and safety legislation in Dubai is similar to that of many countries. Variations are due to differences in the local legal system, including varying standards of legislation and enforcement, different penalties for breaches, religious and cultural issues, specific knowledge of enforcement bodies, and different required levels of monitoring and reporting to enforcement authorities.
The UAE legislation is structured in the form of federal laws, local orders, administrative decisions, and codes of practice. Different laws apply to incidents depending on the location of the construction site, and are not influenced by whether a company has its head office in Dubai or 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 each of 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 does not necessarily mean that it will be treated in exactly the same way in court tomorrow. However, there is codified legislation, and the laws that are applicable when there is an incident are the penal code and civil code,” explains Kelly.
“There is 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 is no way to circumvent their application,” she adds.
GET THE FACTS EARLY
In the aftermath of an incident, emotions are running high and people recollect things that perhaps did not occur; some people are scared or in shock, and they will say and do things that are inconsistent with the facts. Therefore, the safety policy of a construction company should have a provision to bring in people not present at the scene to help calm workers if necessary, and to ensure that those who can respond to investigators do so in a clear and concise manner, knowing that whatever they say could have an impact on any future case or court proceedings.
One of the critical initial steps is to communicate with workers, as many may not speak fluent English or Arabic. Multilingual staff or translation services should be made available to avoid the risk of facts being misinterpreted.
Kelly says that in the case of reportable incidents, there are 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 notes.
There is 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.
Several authorities may need to be present on the site after the incident has been reported.
“The most critical point with regards to personal liability is inadequate supervision, which suggests there may have been negligence. This automatically leads to civil or criminal liability. So, the information provided in the report to Dubai Municipality should be consistent with that in the reports provided to the other authorities, because the initial view of the cause of the accident does not change throughout the investigation,” Kelly explains.
“If an individual or company takes a certain view about the cause of an accident on the day of its occurrence, it is almost impossible to change that view later. Therefore, I suggest that companies stick to the facts and do not withhold any information,” she adds.
If the case goes to a public prosecutor, investigations will continue. And if the public prosecutor finds anything in the reports submitted by the various authorities to be unclear, they will summon the site staff again for further interviews.
“The individuals and companies involved must respond to such requests,” says Kelly. “Unlike in common law jurisdictions, there is no concept of legal privilege under UAE law. Any information that is disclosed to Dubai Municipality, Dubai Police, and the 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 may not be aligned with those of the company,” she continues.
PUBLIC PROSECUTION AND PENALTIES
After an investigation report has been compiled, Dubai Municipality may refer the case to a public prosecutor. In the case of minor injuries, it is likely that the outcome will be a misdemeanour – a minor wrongdoing called Jun’ha in Arabic. This results in an individual or company being charged with causing an accident and damage to the site, equipment, or individuals.
If the accident involves a fatality, there will be a recommendation to the public prosecutor to pursue certain individuals, or the 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 is 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,” Kelly says.
There are two main penalties for those charged with negligence. Those found guilty face the possibility of imprisonment under the criminal code for a period of one to 7 years, depending on the nature of the injuries, fatalities, and extent of the accident. In addition, if there is a fatality, the accused will be required to pay civil damages – or ‘blood money’ – of up to AED200,000 ($54,452), according to the Diya law.
“The entire process can take anywhere from 18 months to three years, and sometimes longer. That is why it is important that organisations support their employees and help manage their expectations,” says Kelly.
“A lot of times, convicted individuals are given a custodial sentence, starting with a sentence of imprisonment, but this is 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 will not be involved further in the supervision of safety,” she explains.
THE ROLE OF MANAGEMENT
Companies tend to assume that all the liability for a serious incident is restricted to the construction site or the place of the accident. If the investigation reveals that the management is at fault, however, they will also 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,” says Abdulkareem. “Major accidents are usually the result of systematic management failures with regard to the execution of safety policies.”
Abdulkareem shares the example of an accident that happened in 2017 and the findings of the resulting investigation.
In July 2017, he says, 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 that followed revealed several faults with the cradle and access platform that the workers had been using. The four major causes of the accident included a lack of third-party testing or certificate issuances after a major alteration had been carried out on the cradle; inadequate preventative maintenance; the absence of daily inspection schedules prior to the use of equipment; and inadequate supervision from managers.
The most critical point with regards to personal liability is inadequate supervision, which suggests there may have been negligence. This automatically leads to civil or criminal liability.
“We refer to equipment logs to verify the maintenance status of the equipment. Under the safety code, the supplier of the access equipment, or the rental company, must maintain their equipment maintenance logs. All documents recorded during the investigation should be supported by evidence – a witness statement is not sufficient. The deciding factor for the public prosecutor will be the equipment logs,” Abdulkareem says.
He also points out the critical role of the safety officer on site, who is responsible for implementing safety policies and supervising 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,” he says. “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 overly confident about their experience, however long it may be; and my advice to employers is do not send your workers to a place or height you cannot reach easily by yourself,” Abdulkareem concludes.