Heaslip House, Ryerson University

Home of The G. Raymond Chang School of Continuing Education

Spring 2018
Dwight Barratt
COHS 208

Intensive Course
Occupational Health and Safety Law
COHS 208 – History of Common Law
• Prior to the 1700 -1800’s, the issues of workplace safety were not really an
issue – the world was agricultural

• Then came the Industrial Revolution and the introduction of steam engines,
and large power sources

• Workplace injuries were now far more severe as well as far more frequent,
and there were more workers as urbanization began

• Over the course of a century and a half, cities grew, and industrialized

Questions:
• What happened when a worker was killed?
• What happened to their family?
• What happened when cities began to be filled with crippled workers, widows
and orphans?

2
COHS 208 – Types of Law (some, not all)
• Constitutional Law - discussed in the first lecture
• Defines the relationship between the citizen and the state
• How will the citizen be governed, what are his/her rights and freedoms, what
power does the government have, how are the powers divided

• Criminal law – Crimes are considered a violation of the society as a whole not just
the victim of the crime.
• It is the Crown that prosecutes criminal offences on behalf of the state.
• Usually requires intent, standard is “beyond a reasonable doubt”

• Regulatory law – Deals with crimes that are not inherently evil, but illegal because
they are prohibited by legislation
• Violation is proof, but intent is not required
• Absolute liability
• Strict liability

• Common law – Built on principle of “stare decisis”

• Usually a disagreement between two or more persons
• Standard is “the preponderance of evidence”
3
COHS 208 – History of Common Law
• As we approached 1900, injured workers (and their families) began to be a very,
very serious problem, and a host of societal problems were associated with it

• A brief survey of the history of common law of OHS shows failures on the part of
common law to adequately protect workers which led to the emergence of OHS
legislation and the state run, no fault workers’ compensation system

• In the 19th century, a worker who is injured on the job could sue the employer for
damages through a cause of action in tort of negligence – Common Law

• Worker (plaintiff) would allege that the employer (defendant) had failed to take
reasonable care with the expectation for damages

• Workers were usually unsuccessful in court which led to workers not considering
lawsuits

• Workers failure in court was due to common law defences used by their
employers

4
 Historical Common Law Defences
1. “Volenti Non Fit Injuria”
- “to him that is willing, no harm is done”
- “assumption of risk rule”
- if a worker knows of hazards on his job and consents to to doing the job, he
shouldn’t blame the employer if injured

2. Doctrine of Common Employment

- known as “fellow servant rule”
- the doctrine absolved the employer who would have been vicariously liable
- it holds that the employer is not guilty if he/she can show a co-worker caused
the accident leading to another worker’s injury

3. Contributory Negligence
- under this rule, employer is absolved of any responsibility where the worker
can be proven to have contributed to the cause of the injury
- this used to be an all or nothing rule in those days
5
- today, the court will divide fault and damages i.e. a worker
with 10% fault will get 90% of damages
 Historical Common Law Defences

4. Violation of Employer’s Rule

- if it could be shown that the worker violated safety rules set by the employer
and so caused accident, employer will argue that the worker is the author of his
own misfortune hence no damages

5. Violation of Statutory Law

- the employer could argue that the worker was injured as a result of his violation
of the law
- “author of his own misfortune”

6. Low Standard of Care

- unlike today, industry standards were very low in the 19th century hence the
duty of care deemed reasonable did not measure up to say the least
- courts today will be willing to go beyond established practice to best practice

6
 Other Hurdles Faced By Injured Workers

1. The burden of proof on the worker - “he who asserts must prove”

2. No Protection Against Dismissal – “no reprisal clauses”, ESA

3. Fellow Workers Refuse to Testify – “don’t get me in trouble”

4. High Cost of Litigation – “only the rich can afford”, no legal aid

5. Delay in Receiving Money even if Successful

7
 COHS 208 – History of Common Law
Priestly v. Fowler (1834) 3M + W1; E.R. 1030
Facts: Mr. Priestly, a butcher was thrown violently to the ground and fractured his thigh when the
carriage he was in broke down. Won at trial, but lost on Appeal.

Issues: is D liable in law under the circumstances for the state of the carriage causing accident and
serious injury to the plaintiff. Appeal heard by Lord Abinger.

Holding: D is not liable and judgment is arrested

Reasoning:
- from mere relation of master and servant no contract and therefore no duty can be implied on the part
of the master to cause the servant to be safely/securely carried or to make the master liable
- allowing this action "would be an encouragement to the servant to omit that diligence and caution
which he is in duty bound to exercise on behalf of his master," and which offers much better
protection against injuries "than any recourse against his master for damages could possibly afford."
- allowing the case will open floodgates to vicarious liability

8
 COHS 208 – History of Common Law

Hamilton v. Groesbeck (1890) 19 O.R. (Q.B. Div.)

Facts: Worker lost an arm to a lumber saw, won at trial, but lost on appeal

Issues: Is the D negligent by failing to guard the saw when there was no requirement to do so?

Holding: Plaintiff action dismissed

Reasoning: - D operated a saw which was not equipped with a guard, and which did not require a guard
for proper operation. Therefore the saw was not defective and there was no deficiency.
- The decision went to the definition of the word “moving”.

Before there was specific legislation (Regulatory Law) dealing with compensating workers who were
killed or injured on the job, it was difficult for them to win in court.
This changed with Workers’ Compensation Law, but only for those covered.
9
 COHS 208 – Current Common Law (which applies to
workplaces not covered by Workers’ Compensation law)
DeLeavey v. Brinkman (1986) 68 N.B.R. (2d) 195.

Facts: Employee injured while manually moving a potato loader contrary to the specific instructions of
the defendant farmer

Issues: Is the D negligent by failing to keep adequate equipment in safe and proper condition

Holding: Plaintiff action dismissed

Reasoning: - Plaintiff’s action in moving this particular equipment contrary to D’s warning against
manually moving it constitute assumption of risk of injury
- Although the arm of the potato loader had been altered by the farmer into fixed position,
the equipment was still adequate and the employee was solely responsible for his
injuries

10
Employer’s Common Law Duties at Present
Not all workplaces are covered by Workers’ Comp. For
those that are not, the employer has duties:

The broad duty is to take reasonable care to ensure a safe workplace

• Duty to Hire a Competent Staff
• Duty to Ensure Safe Premises – physically and structurally
• Duty to Provide Safe Tools and Equipment
• Duty to Ensure Safe System of Work i.e. work procedures, rules,
training, etc.

• The response of Canadian jurisdictions to what was then (1900) an

inadequate common law was to abolish the right to sue the employer
and replace with a gov’t-run, no fault insurance system – the workers’
compensation system.

11
 The Workers’ Compensation Act Modifies the Common Law

• The Following sections of WSIA modify some of the common law rules governing lawsuits by
workers (WSIA will be discussed later)
Employer liability:
Section 114. (1) A worker may bring an action for damages against his or her employer for an injury
that occurs in any of the following circumstances:
1. The worker is injured by reason of a defect in the condition or arrangement of the ways, works,
machinery, plant, buildings or premises used in the employer’s business or connected with or
intended for that business
2. The worker is injured by reason of the employer’s negligence.
3. The worker is injured by reason of the negligence of a person in the employer’s service who is
acting within the scope of his or her employment.
(2) If a worker dies as a result of an injury that occurs in a circumstance described in subsection (1), an
action for damages may be brought against the employer by the worker’s estate or by a person
entitled to damages under Part V of the Family Law Act. 1997, c. 16, Sched. A, s. 114.

12
 The Workers’ Compensation Act Modifies the Common Law
• The Following sections of WSIA modify some of the common law rules governing lawsuits by
workers (WSIA will be discussed later)
Liability of owner, etc.:
Section 115. (1) A worker may bring an action for damages against the person for whom work is being done under a
contract and against the contractor and subcontractor, if any, for an injury that occurs in any of the following
circumstances:
1. The injury occurs by reason of a defect in the condition or arrangement of any ways, works, machinery, plant,
building or premises. The person for whom the work is being done owns or supplies the ways, works,
machinery, plant, building or premises.
2. The injury occurs as a result of the negligence of the person for whom all or part of the work is being done.
3. The injury occurs as a result of the negligence of a person in the service of the person for whom all or part of
the work is being done, and the person who was negligent was acting within the scope of his or her
employment.
(2) Nothing in subsection (1) affects any right or liability of the person for whom the work is being done and the
contractor and subcontractor as among themselves.
(3) The worker is not entitled to recover damages under this section as well as under section 114 for the same injury.
1997, c. 16, Sched. A, s. 115.

13
 The Workers’ Compensation Act Modifies the Common Law
• The Following sections of WSIA modify some of the common law rules governing lawsuits by workers
(WSIA will be discussed later)
Voluntary assumption of risk 7 Contributory Negligence:
Section 116. (1) An injured worker shall not be considered to have voluntarily incurred the risk of injury in his or her
employment solely on the grounds that, before he or she was injured, he or she knew about the
defect or negligence that caused the injury.
(2) An injured worker shall not be considered to have voluntarily incurred the risk of injury that results from the
negligence of his or her fellow workers.
(3) In an action for damages for an injury that occurs when a worker is in the service of an employer, contributory
negligence by the worker is not a bar to recovery,
(a) by the injured worker; or
(b) if the worker dies as a result of the injury, by a person entitled to damages under Part V of the Family
Law Act
(4) The worker’s contributory negligence, if any, shall be taken into account in assessing the damages in such an
action. 1997, c. 16, Sched. A, s. 116.

14
 The Workers’ Compensation Act Modifies the Common Law

• The Following sections of WSIA modify some of the common law rules governing lawsuits by workers
(WSIA will be discussed later)

Insurance proceeds:

Section 117. (1) If an employer is insured against the employer’s liability to a worker for damages, the
employer’s insurance shall be deemed to be for the benefit of the worker.

(2) If the worker suffers an injury for which he or she is entitled to recover damages from the
employer, the insurer shall not, without the consent of the worker, pay to the employer the
amount for which the insurer is liable in respect of the injury until the worker’s claim has been
satisfied. 1997, c. 16, Sched. A, s. 117.

15
 The Employer’s Common Law Duties Towards Workers
• In England, there is a mix of workers’ compensation regime and possibility of lawsuit by
injured employee

• In Canada, there are workplaces where workers’ compensation laws do not apply and so
injured workers can sue their employers i.e. banks, insurance companies, trust companies
and other financial institutions, law firms, real estate agencies, business associations,
recreational and social clubs, trade unions, private schools and universities, children’s
camps, travel agencies, and health clubs

• The broad common law duty today is that employer take reasonable care to ensure a safe
workplace

• OHS Act of different jurisdictions in Canada codified the common law by turning common
law duties into statutory duties

• Rather than workers suing the employer today, the Crown Attorney prosecutes violation of
OHS legislation

16
 Workers’ Compensation History
• 1883-84 Germany, under Bismarck, establishes the first workers' compensation statute.
• 1886 Legislation titled Ontario Workmen's Compensation Act passed, but this was not a
true no-fault insurance scheme. Rather, the Act tended to limit the legal remedies of
injured workers.
• 1897 Britain passes workers' compensation legislation. It has the following elements:
– 1. automatic compensation
– 2. an arbitration procedure
– 3. scales of compensation
– 4. allowed a worker to go to the courts as a final recourse
• 1907 Britain. The 1897 Act was broadened so as to increase employers' liability. It was
this Act which was copied by a number of American jurisdictions.
• 1907 The Pittsburgh Study. Report galvanized public opinion in favour of ensuring
dependents of workers killed at work received adequate compensation and support.
• 1908 U.S. legislation passed. It was for federal government employees only.
• 1911-15 About 30 U.S. states passed compensation laws.
17
 The Meredith Royal Commission
• Following Justice William Meredith’s Commission work, the Ontario Workmen’s
Compensation Act was passed in 1914 coming into effect January 1, 1915
• Based on a global review of what was happening in other countries, provinces

• The same 1915 Act with amendments is the current Workplace Safety and Insurance Act of
Ontario (WSIA)

• “Historic tradeoff” in Meredith is that workers gave up the right to sue their employers but
gained guaranteed protection against income loss due to industrial accidents and disease

• The Ontario WC Act of 1914 was used as a model by other Canadian jurisdictions which
enacted compensation legislation

• NS (1915), BC (1916), AB (1918) and NB (1918)

18
Meredith’s Principles
• Public, Compulsory System – not to be run by private for profit insurance
companies

• No-Fault Compensation – unlike tort, not based on a fault system

• Primarily a “Collective Liability System” – money goes to accident fund

• Compensation for the Duration of Injury – no wage or livelihood loss

• Control by an Independent Board - WSIB or WCB

• Compensation Tied to Earning Power – money paid proportional to money earned

• Divert Some Money to Prevention – safety associations

19
 Liability – Products
• Considerations that flow from the “trade-off”
• Suppose that a worker is using a machine, a tool or a material which is defective, and so
causes an accident in which the worker is injured. The employer might be able to sue the
manufacturer or supplier in the law of contract. The supply of a defective item might
amount to a breach of contract. But the worker cannot sue on the contract because the
worker is not a party to the contract -- there is no "privity of contract".
• Up until about 80 years ago, the worker would not have been able to sue in tort -- for
negligence -- because there was said to be no duty of care on the part of the manufacturer
towards the ultimate consumer of the manufacturer's product.
• Not until Donoghue v. Stevenson (1932) could someone successfully bring an action
against a manufacturer for defective good causing harm
– “duty of reasonable care”
– in the employment situation, the WSIB is “subrogated” to the worker’s lawsuit in
some cases

20
 Other lawsuits - Inspectors and Officers

• Can the Inspectors or Officer be sued?

- An inspector may be sued where they have given a bad advice which caused
accident – very rare
- The Crown may not be sued for pure policy decision but may be for operational
decisions
- Where an inspector acted in good faith (bona fides), he/she is immune from
lawsuits over his/her negligence but not willful harm
- If inspector acts in his/her own self interest or in bad faith (mala fides), they may
be sued

• Can OHS Professional be sued?

- Duty of reasonable care is implied in employment contract (employer may fire an
employee for negligence)
- Suing is dependent in most cases on if the proposed defendant has money to pay
- According to Paul Simon, suit possible for property damage or economic loss, 3rd party
for personal injury or loss and to recover damages awarded to 3rd party:

21
 Liability - Environmental
Just to finish off the topic of Common Law actions:
Scenarios:
- A facility has had an accident and there has been a sudden
release of a hazardous (or very annoying) material which
harmed the neighbours in some way, or a slow chronic harmful
release; can there be a cause of action?
Answer:
- The neighbours must first of all fit their lawsuit into a recognized
“cause of action”
- They may have more than one cause of action available to them as
applicable to their situation or facts of their case

22
Environmental Causes of Action

1. Strict Liability (The Rule in Rylands and Fletcher)

Rylands and Horrocks dammed up water to run a mill. Fletcher had an
abandoned coal mine under the water. There was a flood into the active
portion of the mine (Fletcher was “harmed”), and Fletcher sued. But,
defendants were not negligent (did not know). Fletcher won anyway,
when court created a new rule.
• Elements: non-natural use, mischief, escape
• No breach of contract or negligence is required
• Types of escaping dangers in the Case law: water, sewage, fire,
gas, explosives, dangerous animal, vibration from a pile driver etc.

- Defences to Strict Liability:

(1) Consent of the Plaintiff
(2) The fault of the Plaintiff
(3) An Act of God
(4) Deliberate Act(s) of Third Persons
23 (5) Legislative Authority
 Environmental Causes of Action
2. Product Liability:
• 2 Causes of Actions are important under product liability:
• Contract and Negligence in tort law
• Caveat emptor gave way to “implied warranty of fitness for purpose” and
“merchantable quality”
• Problems: Disclaimers, Warranties depend on conditions
• Donoghue v. Stevenson (1932) – an old English case that stands for the
proposition that a person injured by an unsafe product could sue even
though the person was not the one that purchased the product in a sale of
contract

3. Trespass:
• Every invasion of property, be it ever so minute, is a trespass
• No damage need be done by the trespass
• No knowledge or intention is necessary
• No interference with enjoyment of property is necessary
 Environmental Causes of Action

4. Nuisance Generally
• interference with enjoyment of property - harm
• things that have been found to interfere: noise, vibration, noxious odour, air
and water pollution and dangerous structure etc.)

• Other Types of Nuisance Actions:

1. Private Nuisance (ownership and occupation of land)

2. Public Nuisance (reasonable comfort and convenience of life of

a class of Her Majesty’s subject)
- must relate to an interest common to all i.e. right to fish in
public water, right to travel on highways unimpeded

3. Criminal nuisance (CCC, s.180)

25
Environmental Causes of Action

• Defences to Nuisance:

1. Defence of Legislative Authority

2. Prescription (continually and openly for 20 yrs)
3. Acquiescence (overt consent or active encouragement of D’s activity)
4. An Act of a Third Party (unforeseeable)

• Remedies:

1. Injunction – Prohibitory or Mandatory

2. Damages
Environmental Causes of Action

5. Negligence - conduct falling below the standard established for the

protection of others against unreasonable risk of harm

- Elements:
1. Claimant must suffer some damage

2. Damage suffered must be caused by the negligent conduct of D

3. D’s conduct must be negligent – in breach of standard of care set by

law

4. There must be a duty recognized by law

5. D’s conduct must be proximate cause (not too remote)

6. There must not be contributory negligence or voluntary assumption of

risk by the Claimant
Environment Causes of Action

• The standard of Care:

1. The standard of care in negligence law is an objective one not subjective

2. Conduct is negligent if it creates an unreasonable risk of harm

3. To determine whether activity is unreasonable, the balance between the hazard

created and the social value of the activity will be examined

4. A “reasonable person test” must be adopted - what would a reasonable surgeon

have done in the circumstances?
- A reasonable person is not super human, crazy or idiosyncratic
- He/she has the ability to foresee the consequences of actions and to
understand the causes of events
Summary

• By 1900 workers who were injured on the job had a very difficult time
suing their employer because of common law
• The problem of “widows and orphans” forced governments to do
something – introduction of workers’ compensation schemes
• Workers’ Comp addressed the problem for those covered, and
changed Common Law for those not covered – and there are now
many other employment law guidelines covering the workplace
• Still a possibility that a workplace incident may open the door to
liability, but that tends to be in the realm of product liability
• Several grounds to sue on “environmental grounds”

• Next – Workers’ Compensation

29