“Duty of Care” and the spate of gas explosions

Commercial activity in any part of the world has the potential to cause harm to those involved in the production and delivery process. Workers and customers, and even passersby near oil and gas sales points, are equally exposed to harm and injury.

Therefore, ensuring the health and safety of the workforce of any venture – especially those dealing in highly flammable commodities – is an intrinsic part of responsible business practice. Industrial safety has long been subject to regulation in developed countries, using good corporate social responsibility (CSR) practices.

Unfortunately, there’s been a visible lack of regulation in many commercial activities in developing countries like Ghana. In short, the issue of CSR for industrial incidents is non-existent in Ghana, leaving governments to solely shoulder the responsibility for victims of industrial incidents.

In this article I will argue that in the wake of recent gas explosions in Ghana, every commercial activity should be subjected to legal regulation; while their workers, customers and potential victims should be provided with legal protection. This article will also underscore the need for state agencies overseeing various sectors of Ghana’s industries to insist on internal control systems, instead of always using the firefighting approach after deadly industrial incidents.

Finally, I will argue that all commercial ventures owe the citizens of Ghana, including their workers, a certain amount of ‘duty of care’. Gas explosions Statistics indicate that over the last three years Ghana has been hit by eight gas explosions across the regions. The latest being at Atomic Junction on the evening of 7th October 2017.

The explosion claimed seven lives, injured 132 people, and destroyed valuable property, running into thousands of cedis. This is one explosion too much for Ghana, and the right time for duty-bearers to take action. At a Cabinet meeting on 12th October 2017, President of the Republic Nana Addo Dankwa Akufo Addo – on the advice of Cabinet – directed that henceforth the Cylinder Recirculation Model of Liquefied Petroleum Gas (LPG) distribution should be implemented.

According to a statement signed by the Minister of Information, Mr. Mustapha Hamid, Cabinet has directed that henceforth LPG Bottling Plants will be sited away from congested commercial and population centres and will procure, brand, maintain and fill empty cylinders to be distributed to consumers and households through retail outlets. In the interim, the President has directed that the following steps be taken to give comfort to and ensure the safety of our citizens:

  1. Immediate inspection of all gas stations and vigorous enforcement of existing regulations by the National Petroleum Authority;
  2. Review of the current licencing regime to ensure that only those with demonstrable capacity and competence engage in the LPG distribution business;
  3. Institution of mandatory training and certification for the staff of Regulators, Oil Marketing Companies (OMCs) and LPG Marketing Companies to ensure the safe handling of LPG;
  4. Review the safety protocols along the entire value chain through the combined efforts of the Environmental Protection  Agency (EPA), the National Petroleum Authority (NPA), Ghana Standards Authority (GSA), National Fire Service (NFS), Town and Country Planning Department of the Ministry of Environment, Science, Technology and Innovation, and the Factories Inspectorate Department of the Ministry of Employment and Labour Relations;
  5. Deployment of a task force, within 30 days, to assess the risk that our current LPG infrastructure poses in terms of public health and safety. High risk stations will be immediately closed down – in accordance with relevant law and without regard to any political or special interests. Low risk stations will be designated for the supply of gas for vehicles with improved safety standards;
  6. The immediate incorporation of standards and guidelines developed by Ghana Standards Authority on the handling, storage and distribution of LPG and other petroleum products as technical regulations to strengthen the enforcement regime;
  7. The recruitment by NPA of 200 safety auditors to join the staff of the Factories Inspectorate Department of the Ministry of Employment and Labour Relations to check regularly on all stations to ensure full compliance with safety standards and practices;
  8. Expedition of action by the Fire Service and the Police Service of on-going investigations. Any operator or regulatory official against whom any act of criminal negligence is established, will face the full rigours of the law;
  9. Immediate cessation, until further notice, of all construction of facilities intended for use as gas or petroleum retail stations.
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Profit over people The nine interim regulations announced by Cabinet may well be the beginning of measures to inject sanity into the oil and gas marketing and distribution sector. In fact, these regulations couldn’t have come at a better time, as dealers were beginning to behave as if there are no laws in Ghana. I am looking forward to the strict enforcement of these interim regulations without exception, if the government is to prove that it values the lives of Ghanaians.

Business people or investors should not be allowed to make profit over people. There’s been mixed reactions from the industrial players themselves. At a press conference shortly after the explosion, Oil Marketing Companies created the impression that Ghanaians were rather too emotional about the incidents.

The signal they sent was that they did not show remorse (I stand to be corrected) for the spate of gas explosions that claimed the lives of innocent people. I was however encouraged when I read a statement by the Chamber of Bulk Oil Distributors in the Daily Graphic of October 17, 2017. The newspaper quoted the CEO of the chamber, Mr. Senyo Hosi, as decrying the absence of accountability in the oil and gas marketing and delivery sector. “The La gas explosion happened, people died and no one has been held accountable,” he reportedly said, and urged government to act to restore public’s confidence in the sector.

“That will need us to be open and honest about the problem and show the public that we are addressing the attitudinal challenges in the industry by holding people accountable. “The government’s inability to hold wrongdoers accountable has emboldened industry and all its related public officials to continue acting with impunity to the cost of Ghanaians,” he was quoted as saying in the Daily Graphic.

In fact, I couldn’t agree more with Mr. Hosi, as his honest views mirror those of this writer. I repeat, businesses and investors should not be allowed to make profit over people. A cue from the UK  As the first industrialised country, the UK was the first to face industrial incidents and legal accountability.

While corporate accountability needs improvement in the UK, it has come a long way from the industrial revolution to the point of making industrial exploitation a crime. From the initial stages of letting employers off the hook for workplace incidents, there is now a social awareness and people are no more seeing result of commercial carnage as equivalent to the crimes prosecuted in court: they are seeing it as something that can and should be prosecuted. In the heat of the industrial revolution, businesses tended not to value the safety of their workers. It was still generally assumed that life for the working classes would be what the 17th century philosopher Thomas Hobbes described as “nasty, brutish and short”.

The much-reviled doctrine of “common employment” ensured that employers were not liable for the personal injuries of their employees when caused by the negligence of another worker. According to this principle, the employer has no means of knowing about his workers’ negligent actions.

The fear of the judiciary at the time was that imposition of liability on an employer in such circumstances would lead to proliferation of similar claims, a resultant loss of control by employers, and increased cost of production – which would in turn affect economic growth.

This means that employers were effectively immune from liability for industrial incidents (as in the case of the gas explosions in Ghana). Thus, there was no incentive for employers to develop safe industrial practices and improve internal control systems.

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However, the mid- to late-19th century saw a plethora of new legislations designed to improve working conditions, such as the Factory Act and other Acts designed to not only regulate working conditions, but also reduce the impact of corporate operations on the environment. With this, the protected position of employers of the 19th century was gradually eroded as judicial opinion veered in favour of workers.

The impact of the “Doctrine of Common Employment’ was reduced by the “Employers’ Liability Act of 1880”, under which employers were responsible for negligent acts of their managers, supervisors, and foremen that resulted in harm to their workers and others. This change of judicial attitudes was reflected in the fact that during the same period courts were also developing and refining the principle that employers not only owe a “duty of care” to their workers, but also owed a “duty of care” to customers and the general public — and are to ensure the safety for both.

From what is happening in our industrial sector, especially manufacturing and oil and gas, I dare conclude that there is little, if any “duty of care” exhibited by employers, investors and businesses. In Wilson and Clyde Coal Company versus English (1938) Act 57, Lord Wright stated that an employer was under a duty to take reasonable care for the safety of his men.

The obligation of reasonable care included: employing competent staff, providing adequate materials, a proper system and effective supervision. Lord Wright stressed that these were fundamental obligations of a contract of employment…for which employers are absolutely responsible.

The protection provided to workers was further enhanced by development of the principle that employers can be liable for negligent acts of their employers. Per Lord Wright’s ruling, it came out clearly that there were several moral and practical rationales for the imposition of liability on employers for two reasons.

First, employees are engaged in activities on behalf of their employers, who stand to make profit and so should take moral and legal responsibility for their actions.

Second, the imposition of liability encourages good working practices, and ensures that employers have a financial interest in encouraging health and safety in their environment. I see all the relevant issues raised in favour of duty of care encapsulated in the nine-point regulatory directives of the Cabinet. This reminds me of the old adage that “a stitch in time saves nine”.

All these put together suggest a growing emphasis on the development of a safe working environment by investors and businesses, the prevention of workplace incidents, and the development of a safety-conscious culture – which are all lacking in Ghana.

Thus, as part of their corporate social responsibility, businesses and organisations are increasingly encouraged to be proactive in their management of risks; to conduct health and safety audits; carry out risk assessments of the impact of their operations; and to formulate their own tailor-made health and safety policies. CSR goes beyond making a small donation of soap, toilet-rolls, gari and sugar out of the huge profits of a business for media attention.

CSR is an increasingly important element of business strategy, and has the potential to radically alter the focus of businesses and organisations to take more account of the external impact of their activities and their broader responsibilities to society.

References The Open University (2016) Business, human rights law and corporate social responsibility (Study Guide 3. Law School). Open University. Milton Keynes. Voiculescu, A. and Yanacopulos (2011) (Eds.) The Business of Human Rights: An Evolving Agenda for Corporate Responsibility. By: Amos Safo (***The writer is a Development and Communications management Specialist, and a Social Justice campaigner.  All views expressed in this article are my personal views and do not represent those of any organisation(s). (Email: safoamos@gmail.com Mobile: 0202642504 0243327586/0264327586)   

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