Strict liability is a legal doctrine under which a party can be held liable for their actions or omissions causing damages regardless of fault or intent. Unlike negligence or intention, where the plaintiff/applicant must prove that the defendant acted with carelessness or intent to cause harm, strict liability applies even if the defendant took precautions and did not intend to cause harm.

In this case, Joubert (the applicant) sought to enforce the principle of strict liability against Buscor, following the death of her husband as a result of exposure to hazardous conditions at Buscor’s premises. The deceased was employed as an electrician by a subcontractor but was carrying out work on Buscor’s premises when he was exposed to toxic and hazardous conditions that led to his death. The crux of Joubert’s argument was that Buscor failed in its statutory duty under the OHSA to ensure the safety of all people, not just its own employees, who might be affected by its operations.

The High Court was faced with determining whether the OHSA imposed a strict liability on Buscor for the death of the applicant’s husband and whether the applicant was excluded from instituting a claim based on a breach of duty of care at common law simultaneously with the breach of the OHSA. The applicant argued that the duty under section 9(1) of the OHSA is broad enough to include strict liability, particularly considering the intrinsically risky nature of the work environment at Buscor. The High Court acknowledged that, while the OHSA is largely preventative in nature, its provisions could support a strict liability claim, particularly when a failure to follow standards imposed by the OHSA results in substantial harm.

Key provisions from the OHSA relevant to strict liability

The OHSA outlines specific duties that employers must adhere to when ensuring the safety of people affected by their activities. Section 9(1) of the OHSA is especially relevant, as it states that every employer must conduct its undertaking in such a way to ensure that people are not exposed to health and safety concerns. This provision broadens the duty of care to include subcontractors, visitors and even third parties.

The OHSA, through its regulations, establishes employer responsibilities when dealing with confined spaces, which are areas with limited entry and exit points that may represent considerable risks owing to hazardous substances or conditions. Employers must ensure that such areas are only entered following adequate testing and certification of safety by a qualified and competent individual.

Employers must recognise that their responsibilities will often extend beyond their immediate employees to people who may be impacted by their business operations, including subcontractors and the general public. Given the potential for strict liability under the OHSA, employers must adopt a comprehensive approach to workplace safety.