COVID-19 IN PERSPECTIVE, A PROPHECY ON THE LOOMING NEGLIGENCE CLAIMS, PART 3 by Christine Selikem Lassey

This last essay comes on the heels of two others, which sought to explore the specie and terrain concerning negligence claims in this COVID-19 era. The first discussed the liability of medical practitioners during COVID-19 and explored the possibility of immunity while the second essay assessed the liability of persons for the transmission of COVID-19 to others. This present write-up sets out to examine the scope of negligence within the specialized relationship between an employer and employee. The need for this discussion is all the more relevant because one factory worker infected 533 others in a fish factory in Tema when the country was grappling with the pandemic in its early stages. Here, I shall outline the employer’s duty of care to his workmen as exists under common law and statutory law and then pass a few comments on the state of the law.

The employee or third party in a negligence claim must prove that the employer owed him/her a duty of care, which was breached by the employer and he/she suffered damage as a result of the breach. Employers have a duty under common law and statute to their employees. Owusu-Addo J in Issaah v Mim Timber succinctly put the duty under common law as a threefold duty to provide competent staff, adequate material, and a proper work system. This triple-duty is not exhaustive as case law has recognized the fourth duty to provide a safe place of work. The common law pronouncement of duty of care has received a blessing in the Labour Act 2003, Act 651.

Firstly, employers are required to provide employees with adequate tools and materials reasonably required for work. Where the employee’s tasks are inherently dangerous, the employer must provide personal protective equipment and ensure its usage. A global pandemic does not suspend this duty but demonstrates employers’ need to execute their duty diligently. The nature of business dictates the personal protective equipment that ought to be provided. Medical practitioners’ employers must protect their staff from contracting COVID-19 in line of duty by providing personal protective equipment. Sadly, some doctors have contracted COVID-19 and fallen in the line of duty. The Ghana Medical Association in a press release attributed this to the lack of personal protective equipment, amongst others. Due to the shortage of personal protective equipment at the beginning of the pandemic, some employers suo motu or following government directive, instructed non-essential staff to stay home. Others utilized technological advancements and migrated online to deliver services. By failing to provide Personal Protective Equipment or implementing alternatives to in-person working conditions or other measures reasonably required to protect employees against contracting COVID-19 at the workplace, employers may face negligence claims.

Secondly, the employer must provide a safe system of work. In General Cleaning Construction v Christmas, the respondent worked for the appellant as a window cleaner. While cleaning a window, it shut unexpectedly and he fell and sustained injuries. The appellant denied liability on the basis that the respondent had twenty years of experience and ought to have recognized the risk. The court rejected this argument and explained that the employee was not under a duty to identify and take precautionary measures against risks. The government of Ghana has put measures in place to protect the entire populace. However, this does not relieve other employers of their duty. The House of Lords in Wilson & Clyde Co Ltd v English, stressed that the duty of an employer to provide a safe system of work could not be delegated. Where the government introduces COVID-19 precautionary protocol, employers have to ensure compliance at their workplace. For example, suppose the system of work requires a person to person interaction then social distancing must be observed, or work from home options must be explored.

Thirdly, the employer must provide his employees with competent fellow workers. At the beginning of the pandemic, most hospitals did not have adequate staff on the frontlines to deal with the growing number of cases. Hence, some countries admitted volunteers and final year medical students to work in various capacities as front line health workers. Indeed, this initiative could lead to a chain reaction of liability. Employers have a statutory duty under section 118(2) (c) of the Labour Act 2003, Act 651 to;

‘’provide the necessary information, instructions, training and supervision having regard to the age, literacy level and other circumstances of the worker to ensure, so far as is reasonably practicable, the health and safety at work of those other workers engaged on the particular work.’’

Consider that a hospital in Accra admits the services of volunteer X to work in a testing centre. Volunteer X negligently exposes workers in the Laboratory to COVID-19 by spilling a blood sample. In this case, the hospital will generally be held liable unless the courts lower the standard of care of Volunteer X by virtue of the benefits society derives from her service or if the government has granted immunity to front line workers. Similarly, if employee X infects others with COVID-19 at the workplace, the employer would be liable. Interestingly, section 118(2) ( c) provides a haven for employers to escape liability if measures put in place where reasonably practicable to ensure other workers’ safety. In truth, whereas a crash-course in patient care may not be accepted as sufficient training for health personnel, this does not fall short of “reasonable” in a public health crisis. In essence, the pandemic, inadequate staff, and the health system’s pressure are useful factors to determine a breach of the duty to provide competent workers.

The triple duty of care espoused by the House of Lords in Wilson & Clyde Co Ltd v English  and affirmed by the Ghanaian court in Issaah v Mim Timber is not exhaustive. Case law has long recognized a duty to provide a safe place of work. The writer opines that the court did not intend to strictly prescribe the ambit of employers’ duty in the Clyde case supra. Admittedly the court at Page 74 of the report stated that;

“… it is always difficult to define a principle of the law so precisely that its application to every circumstance is beyond question”.

In Lee Wai Man & Another v Wah Leung Finance Ltd, the employee died while working as a project manager at the Defendant’s construction site. A sudden gust of wind blew him into an unguarded hole during an inspection. The courts held the Defendants liable for their omission to ensure that the site was safe for work. The Labour Act 2003, Act 651 also provides in section 118(2) (h) “that an employer shall prevent accidents and injury to health arising out of, connected with, or occurring in the course of, work by minimizing the causes of hazards inherent in the working environment”. Likewise, in Favelle Mort Ltd. V. Murray, the respondent, a project engineer, was employed in Sydney by the appellant and sent to New York. When he returned, he was diagnosed with viral meningoencephalitis. The court held that “any disease proved to have been contracted by a worker at the place and during the time of his employment, not being a disease of autogenous origin within his body but being a disease contracted as a result of the presence at the place of employment of the organism or other substance which invades or attacks his previously healthy body falls was actionable’’.

Similarly, in Houghton V. Hackney Borough Council, Diplock J noted that the test to determine whether an employer has breached his duty is “has the employer taken reasonable care, paying proper attention to the risk and paying reasonable attention to the other circumstances?”.
The combined effects of section 118(3) and (4) of the Labour Act 2003, Act 651, imposes a duty on an employee to use personal protective equipment provided and the employer is not liable for any injury suffered by the employee for non-compliance. In light of the easement of COVID-19 restrictions in Ghana, are employees obligated to return to work? More importantly, section 119(3) of the Labour Act provides that;

“An employer shall not require a worker to return to work in circumstances where there is a continuing imminent and serious danger to the life, safety or health of the worker”. 

Ultimately, it is a question of fact whether COVID-19 is a serious danger at the workplace. Although the virus has not been completely eradicated, employers are now better placed to ensure workplace safety. The writer asserts that COVID-19 is not an “imminent and serious danger” if health protocols are in place.

In summary, COVID-19 has deepened employers’ duty to their employees. Employers are expected to prioritize the health and safety of their employees. Despite the new challenges posed by the pandemic to the already stable rules on employers’ liability, the rules are robust enough to tackle these hurdles.