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The Legal Framework of the Occupational Diseases under the Occupational Safety and Health
Act Chapter 88:08
Mr. Peter Ramkissoon, Acting State Counsel II, Ministry of Health
1. Let me begin by saying that the Occupational Safety and Health Act has been included
in the 2006 Revised Edition of the Law of Trinidad and Tobago and therefore it is no
longer necessary to refer to the Act as “the Occupational Safety and Health Act 2004
as amended”.
2. I wanted to focus my talk on Part VIII of the Act which is titled “Notification and
Investigation of Accidents and Occupational Diseases” because this is where the term
“occupational disease” is first dealt with substantively in the Act, apart from the
definitions section which merely states that occupational disease means a disease
listed in Schedule I of the Act.
3. But I won’t confine myself to only that Part since I would also like to say something on
Part XIV which deals with offences, penalties and legal proceedings under the Act and
mention other sections of the Act or other Acts which relate in some way to
Occupational Diseases and some cases.

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Section 48
4. So turning to section 48(1) of the Act, we see that a medical practitioner is under a
duty to notify the Chief Medical Officer (CMO) when he attends to a patient and forms
the opinion that the patient is suffering from an occupational disease contracted in
any industrial establishment or in the course of his employment. Further, the notice
must be sent within forty-eight hours of having formed that opinion with specific
information. I wanted to point out that unlike section 46(1) which also requires
immediate notification in the case of an accident which causes death or critical injury,
and notification which appears to be direct like the telephone or e-mail, the
notification required by this section does not need to be preceded by such immediate
and direct means.
5. Within that little section lies a great deal of information and detail and questions
concerning the operation of the Act, which I will try to explain.
Duty of Confidentiality

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6. Ordinarily, a doctor has a duty of confidentiality towards his patient. This means that
he has a legal obligation to not disclose or reveal voluntarily to a third party whatever
knowledge he gains from treating a patient, whether that knowledge be gained
directly or indirectly. A breach of that confidence may result in the patient being able
claim damages in Court for breach of the duty of confidence, which is a claim in tort,
that is, a claim for a civil wrong.
7. Further, in the instance of Trinidad and Tobago, the Medical Board Act Chapter 29:50
which governs, among other things, the discipline of doctors for infamous or
disgraceful conduct, the very first specific act of infamous or disgraceful conduct
mentioned and found under Section 24(5)(a) is the willful betrayal of a professional
confidence. And therefore a doctor may be subject to disciplinary proceedings if the
doctor releases information to a third party, like a CMO.
8. Therefore one may be quick to assume that the release of a patient’s condition and
information related to her employment is a breach of the duty of confidence.
However the case of W v Egdell [1989] 1 All ER 1089 which confirmed that a doctor
had that duty but it was not absolute and the duty was subject to the requirements of
disclosing under compulsion of law or disclosing in the public’s interest.

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9. Therefore it would appear that section 48(1)’s obligation imposed upon doctors will
fall under the exception of compulsion of the law. It is to be noted that section 48(1)
imposes a duty and not a mere discretion on the part of the doctor; this is evidenced
by the use of the phrase he shall. If the word may was used, the medical practitioner
would have a discretion and not a mandatory obligation.
10. This exception created by section 48(1) is like the exception that was noted in the case
of Hunter v Mann [1974] 2 All ER 414, where a doctor was found to be guilty of
refusing to give information, to a police officer, which was in the doctor’s power to
give and may have led to the identification of individual who the police officer was
enquiring about. The doctor refused to divulge the information because he had only
gained it through his practice and he felt bound to the duty of confidentiality.
However the court found that there was an explicit statutory requirement for a
person to give information to an officer requesting it and failure to do so was a
criminal offence.
11. Likewise section 48(7) creates a criminal offence and possibly a safety and health
offence (more on which later) whereby a medical practitioner is guilty if he fails to
notify the CMO within 48 hours if he ought reasonably to have formed the opinion
that the patient was suffering from an occupational disease.

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12. This raises the interesting question of when does a doctor form an opinion. It can’t
simply be when he attends to the patient and forms a suspicion and then decides that
he would need further tests to determine whether the complaints or conditions
observed satisfies one of those diseases mentioned in Schedule 1. And what if he
needs to refer the patient to a specialist in order that his suspicions are confirmed?
And this raises a further question, what is the obligation of the specialist who
determines that the patient that was referred to him is suffering from an occupational
disease? Is he also bound by Section 48(1). To my mind he is also bound since he is a
medical practitioner and one who can form opinions and therefore he is also required
to notify the CMO.
13. But to my mind, the time that the Section 48(1)’s obligation begins to run for a doctor
who merely harbours a suspicion and takes weeks or months to come to a conclusive
opinion, must be after he receives and contemplates further information, either
supplied by further questioning, examination or tests he conducts himself or another
referent practitioner, not at the point of suspicion.
14. This is of course difficult to identify in practice, and the added obligation is not simply
when he forms the opinion, but when he ought reasonably to have formed the

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opinion. This then becomes a question of the test of when a medical practitioner
ought to reasonably have come to opinion. This sounds similarly like the test that is
proposed in medical negligence cases where the erring doctors actions are measured
against the practice accepted at the time as proper by a responsible body of medical
opinion even though other doctors adopt a different practice, a test which is found in
the case of Bolam v Fiern Hospital Management Committee [1975] 2 All ER 118.
15. At the very least, the prosecution in bringing a complaint against a doctor under this
section would be required to lead expert testimony from doctors as to when this
reasonable opinion should have been formed. And the delay with which this occurs
must be tied to the type of practitioner which is being dealt with: in the case where a
patient is suffering from a disease caused by aluminum, such as aluminum lung, which
is an Occupational respiratory disease under Schedule 1 and found at 2.1.8, a general
practitioner cannot be held to the same standard as a pulmonologist.
Industrial Establishment or in the course of his employment
16. The Occupational Disease (OD) which the medical practitioner identifies must have
been contracted in an industrial establishment. An industrial establishment is defined
as a factory, shop, office, place of work or other premises. So the use of the

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word industrial takes on a very broad meaning wholly unrelated to the sense that
industrial usually connotes, which I think sounds like large scale manufacturing,
production or construction. So Ministry buildings – like Ministry of Health, Ministry of
Labour, restaurants, and this hotel, will all qualify under the category of office or place
of work. An interesting example that would qualify as a place of work is on a ship or
boat, so that crew members on the T&T Express would be able to say that they
operate in or rather on an industrial establishment. However this submission is a bit
academic, since a ferry is a type of vessel and vessels are included in the definition of
premises.
17. I wanted to highlight that the person who contracts the occupational disease from the
industrial establishment need not be an employee of that establishment, merely that
he contracted the disease in the establishment. So a visitor would qualify. However, if
one reads the requirements of the notice that is to be sent it states that the notice
must contain the industrial establishment in which the patient is employed and was
last employed.
18. In the case of a patient who contracted the OD from only visiting an establishment but
was not an employee that information would not be helpful for it would not reveal
the causative establishment. To my mind the medical practitioner must include in the

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notice the establishment which the patient visited and that the information as
required by Section 48(1) is not exhaustive but the minimum that should be supplied,
if one is to give effect to purpose of that section.
19. And what about employees who do not work in a fixed place, but leave a central
headquarters and work in different job sites, places everyday, often in private
premises, like technicians or carpenters or community nurses or like the Ministry of
Health’s Public Health Inspectors and like the OSH Agency’s Inspectors? And what
about drivers and transporters, whose very employment depends on being in a
vehicle? Their vehicles would suffice as premises, under the definition of premises
under the OSH Act. But I don’t think that the time they spend out of the vehicles,
when they are offloading goods or making deliveries or when they of necessity have
to take their lunch will be considered as satisfying the criteria of an industrial
establishment. Are they not protected also?
20. I think that the phrase in the course of his employment addresses just those workers I
mentioned and just those situations I mentioned. In the course of one’s employment
is not defined under the Act, but has been defined by case law and academic texts.
The case law defining the phrase has not been found with respect to this Act but
rather with another Act that seeks the interest of the worker – The Workmen’s

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Compensation Act Chapter 88:05 and with case law dealing with vicarious liability,
that the liability of the employer with respect to the wrongful acts of his employee.
21. The term “in the course of employment” according to Charlesworth on Negligence
6th
Edition at paragraph 89 is defined as:
…an act is done in the course of employment not only when the servant is actually doing
work which he has been employed to do, but also when the act is an incident in
performing something he is employed to do when he is about business which concerns
the master and servant.
22. L & Y.R v Highley 1917 AC 352 states that “arising out of the employment” would be
determined if it:
…was it part of the injured person’s employment to hazard, to suffer or to do that which
caused his injury? If yea, the accident arose out of his employment. If nay, it did not.
23. Winfield & Jolowicz on Tort finds that what is in or out of the course of employment
depends upon a question of fact.

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24. And there have been English cases sought to determine whether a worker was acting
in the course of his employment. Such as R v National Insurance Commissioner ex p.
Michael [1977] 1 WLR 109, where a policeman who played football for a match that
was authorized, promoted and encouraged by the police authority was found to have
not been acting in the course of his employment when he was injured as a result of
playing.
25. I think this question of and the answer to in the course of one's employment related
to the job specification or job description of an employee. This is how I deal with this
particular criterion when I calculate Workmen's Compensation claims. The substantive
requirements of one's work will determine when an individual was acting in the
course of his employment when he contacted the OD or whether what he was doing
was not in his scope of duties and therefore the OD could not be said to have been
contracted in the course of his employment.
26. The evidence of what the worker says is job and daily routine, what his supervisor says
is his job and daily routine and what his co-workers says is his job and daily routine
should also be considered.

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26. Turning to subsection 3, the employer has a duty when he is advised by the employee
that he is suffering from an OD to give notice to the Chief Inspector in writing within
four days of that advice. The employer also had this duty when he has been advised
by someone acting on behalf of the employee.
27. These notices to the Chief Inspector trigger his obligation under subsection 4 to
arrange for a medical inspector to investigate the case of the OD. It would appear that
the broad words of investigate in the case of the OD entitles the Medical Inspector to
invoke his powers under sections 72 and 73, which he is entitled to exercise by virtue
of section 82 which confers every power of an inspector on a medical inspector.
28. The medical inspector must then submit his report on the case of the OD within two
weeks of his appointment by the Chief Inspector. Therefore at a maximum the Chief
Inspector is first able to act upon an OD roughly a month and four days after the
employer is advised of the case of OD.
29. The Chief Inspector is then mandated to conduct the necessary enquiries under
section 48(5). This term necessary enquiries suggest that the Chief Inspector may

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instruct his Inspectors, including Medical Inspectors, to exercise their investigative,
instructive and prosecutorial powers under Sections 72, 73 and 74.
The District Medical Officer’s duties
29. The District Medical Officer is also given certain duties under the OSH Act in respect of
occupational diseases. Under section 49 he must arrange an autopsy to be conducted
and forward the results to the CMO.
30. Presumably the DMO, who may be the County Medical Officer of Health or a Medical
Officer of Health, falling under the Ministry of Health or a Primary Care Physicians II,
falling under the Regional Health Authorities, for that particular district, such as
Victoria or St. George East or the other seven counties, would not be skilled or
experienced in subspecialty of pathology and therefore they are empowered to
arrange for a pathologist to perform an autopsy on the body.
31. This obligation is distinct from the one which the DMO has under the Coroners Act
Chapter 6:04, under section 9, which states that where the DMO has viewed the body
of a deceased person and made any anatomical examination, he shall make a report

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as to the cause of the death to the Coroner within the district the viewing took place
and also forward a copy of the report to the Superintendent of the Police within
whose division the viewing took place.
32. One can expect that the report he prepares pursuant to the Coroners Act will not
suffice for purposes of the report he sends to the CMO. The reason being that the
report prepared by the DMO pursuant to section 9 of the Coroners Act is based upon
his viewing and his anatomical examination and not an autopsy. An autopsy is an
invasive method of examination. Section 49 of the OSH Act, indicates that the result
of the autopsy are to be forwarded, the implication being that this must happen after.
33. I think that this was put in place distinct from section 48, since 48 deals with a person
who is currently suffering as opposed to someone who has suffered from an OD. A
corpse also isn't a patient. Therefore the duty to send a notice within forty eight hours
to the CMO doesn't apply to the DMO in the case of a death.
34. Also the criterion that the person must have contracted the OD from an industrial
establishment doesn't apply here for section 49 to operate. It is merely that the
deceased died from a Schedule 1 disease. The criterion that the dmo must arrange for

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an autopsy to be conducted is in cases where death is caused by an accident and
death is connected to an industrial establishment or in the course of employment.
35. The CMO is then required to forward not the results of the autopsy, but rather a
statement as to the cause of death to the Chief Inspector. But there is no prohibition
for the CMO to forward the results also. This is distinct from the CMO's duty under
s48(2) which appears to be that he acts as a conduit for passing information and does
not give a statement or opinion on the matter.
The Coroner’s duties
36. The Coroner is also given duties and obligations under the Act. Section 50 mandates
that a coroner is obligated to send the Chief Inspector a notice in writing of the time
and place of the inquest. This notice must be sent at least forty-eight hours before the
holding of the inquest. It is assumed that the inquest referred to here in this section
50 is identical to the inquest pursuant to Section 10A or 11 or 12 of the Coroners Act.
37. Interestingly, under the Coroners Act section 10, the Coroner is obligated to carry out
a preliminary investigation, after receiving the section 8 report from the DMO. This is

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a preliminary investigation as to the cause and circumstances of the death. However
this preliminary investigation is distinct from the inquest the Coroner holds pursuant
to section 10A or 11or 12 of the Coroners Act. Therefore there is no obligation as yet,
at the preliminary investigation stage for the Coroner to send the Chief Inspector any
notice of the proceedings.
38. However subsection 10(2) and (3) of the Coroners Act indicates that the Coroner is
obligated to deliver his findings in open Court if he determines that no further enquiry
and therefore no inquest is necessary, and that the Clerk of the Peace shall give notice
to any party interested of the date, time and place of the delivery of the findings. An
interested party in the case of an occupational disease would be the Chief Inspector or
an Inspector and therefore they should be notified under section 10(3) of the
Coroners Act.
39. I suspect that if the Inspectorate isn’t notified that the OSH Agency may apply for
judicial review of the failure to notify them of the Coroner’s delivery of his findings
and seek an injunction of that delivery until an Inspector can attend or a quashing
order of any decision made by the Magistrate in the absence of the Inspector.

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40. Here again phrasing implying immediacy of relaying the notice, as seen in section
46(1), is missing from here and therefore the obligation to e-mail or telephone or
attempt direct means is not mandated here.
41. The implication of subsection 50(2) is that it is expected that the Chief Inspector
would send one of his inspectors to the Coroner’s inquest and that the Cornoer may
adjourn the inquest for the purposes of notifying the Chief Inspector of the inquest.
42. Under section 50(3) the Inspector; a relative; the employer; the occupier of the
industrial establishment from which the disease is alleged to have been contracted; a
person appointed by the occupier’s or employer; or a person appointed by the trade
union or other association to which the deceased belonged to at the time of his death,
may examine a witness either in person or through an attorney or an agent.
43. According to section 22 of the Coroners Act the examination is taken down in writing
in the form of a deposition which shall be admissible in evidence in any proceedings.
Therefore this is important to the prosecution of health and safety offences and
criminal offences prosecuted under the OSH Act.

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44. If no inspector was present at a Coroner’s Inquest, section 50(4) mandates the
Coroner to send to the Chief Inspector a notice in writing of:
i. The neglect which caused or contributed to the disease; or
ii. The defect in or about the industrial establishment appearing to the Coroner
to require a remedy.
45. The word “neglect” here refers to the behavior of the deceased, his co-workers and of
the employer or occupier. This therefore may be broader than the duties listed in Part
II of the OSH Act, although section 6(1) is quite comprehensive because of its
generality –So that neglect may arise where the employer failed to ensure, as far as
reasonably practicable, the safety, health and welfare at work of his employee.
46. Additionally, the defect in or about the industrial establishment appearing to the
Coroner to require a remedy need not have contributed to the contraction of the
disease, but simply be an observation of the Coroner of the working practices that
existed at the industrial establishment gained from the depositions of the witnesses
to the inquest.

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47. Section 51 gives the Minister, who is currently the Minister of Ministry of Labour and
Small and Micro Enterprise Development, the power to advise the President that a
case of OD contracted or suspected to have been contracted in an industrial
establishment is a matter of public interest and the President may cause a
Commission of Enquiry to be held whose remit will be the case of the industrial
disease and its causes and circumstances. This section uses the phrase industrial
disease but it should really occupational disease.
48. I suspect that if the Minister fails to advise the President, his failure to do so would
subject him to judicial review, but it would have to shown that his failure to exercise
his discretion here was unreasonable or unlawful or motivated by an improper intent
or purpose, for one to be successful at getting an order which mandated the Minster
to advise the President and that the case of the occupational disease attained a level
deemed to be a matter of public interest.
49. Under section 52(1) and (2) the Minister also has the discretion to direct the CMO to
arrange for a medical inspector to investigate and submit a report on any to the CMO
who then forwards the report to the Minister. This investigation and report may be on
any matter the Minster may direct and therefore includes the case of occupational
diseases.

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The purpose of these sections
50. So one may be thinking to what end are these sections aimed. I think the benefit of
these sections is that it creates the best conditions for the Chief Inspector to become
aware of and be informed of occupational diseases that are existent in Trinidad and
Tobago and reduce the likelihood that occupational disease go undetected or if once
detected, the likelihood that it will not be addressed or escape the public’s attention.
51. Therefore I would want to turn to the methods by which he may address a case of an
occupational disease.
52. Turning to Part XIV of the OSH Act, this part deals with offences, penalties and legal
proceedings, section 88 states that where a person contravenes a provision of the Act
or its regulation the person commits a safety and health offence. Where a person fails
to comply with any duty, prohibition, restriction, instruction or directive issued under
the Act or its regulations he also commits a safety and health offence.

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53. This safety and health offence is subject to the jurisdiction of the Industrial Court and
section 97A states that all safety and health offences shall be determined by the
Industrial Court.
54. The Act also appears to maintain that offences may also be prosecuted in a summarily
manner in the Court of summary jurisdiction, that is the Magistrates’ Courts and
therefore no indictable offences exist under this act.
55. This is supported by case of Inspector of Factories v OSHA Complaints No.1-4 NH
International (Caribbean) Limited, OSHA Complaints Nos 5-10 Safeway access and
Support Systems Limited and OSHA Complaint No11 Turner Alpha Limited, which was
determined in the Industrial Court. This is one of the two cases I have found that deals
with prosecutions under the OSH Act in the Industrial Court.
56. So at page 26 the judgment, the judges found that the scheme of the Act is such that
the intention is that summary offences are to continue to be tried in the Magistrates’
Court as they had been under the [Factory] Ordinance and the new class of offences

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introduced under the Act, safety and health offence is to come under this Court’s
jurisdiction.
57. So in this case, which was based upon the collapse of scaffolding at the Customs and
Excise Building, Government Campus Plaza, Richmond Street, Port of Spain the
complaints were based upon failure to maintain the place of work, under the
employer’s control, in a condition that was safe and without risks to health, as far as
practicable. This is a breach which was contrary to Section 6(2)(e) of the OSH Act. The
other complaints are based upon breaches of sections 6(1); 6(2)(d); 7(1); 13(1)(a); and
13(3).
58. Therefore, it would appear that apart from specific breaches of reporting duties found
under Part VIII, the offences which an employer may commit with respect to an
occupational disease are to be found under Part II, that is, the General Duties.
59. But I would submit that those duties found under Part II, such as 6(1) or 7(1) or 13(3)
are not criminal offences and cannot be prosecuted in the Magistrates’ Court and they
only constitute safety and health offences.

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60. I say this because if one looks at the Act and at those sections which create criminal
offences such as section 48(7), which I mentioned, or section 47(1) and (2) which
criminalizes the interference of any wreckage at the scene of a critical injury, the
words “is liable, on summary conviction” is not to be found in those Part II duties. This
phrasing usually indicates that the person is criminally liable and subject to the
Criminal court's jurisdiction. Therefore the sections under Part II remain duties
without redress to the Magistrate’s Court but solely to the Industrial Court because of
the wording.
61. Take for example, where the vibration of a machine is consistently encountered by
workers at a factory but the employer fails to provide protective equipment to the
workers when they handle the equipment or post signs which warn the worker of the
vibrations caused by the equipment and an employee develops an occupational
disease as a result.
62. This disease will amount to a disease that is caused by the physical agent of vibration
and therefore a Schedule I disease.

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63. To my mind the employer has committed several safety and health offences. He has
failed to make arrangements for ensuring the absence of risks to health in connection
with the use and handling of equipment contrary to section 6(2)(b); he has failed to
provide information as is necessary to ensure the health at work of his employee
contrary to section 6(2)(d); and he has failed to maintain a place of work under the
employer’s control in a condition that is without risks to health as far as practicable
contrary to section 6(2)(e). I do think that the catch-all provision of section 6(1) will
also be applicable and the employer has failed to ensure the health at work of his
employee.
64. And similarly the worker would also have breached his responsibility found under
section 10(1)(a) by failing to take reasonable care for his own health while at work, by
continuing to work in the absence of proper gear. So he also commits a safety and
health offence.
64. But I don’t think that the employer has acted contrary to section 6(2)(c) since this
specifies that the protective clothing or devices provided are for preventing bodily
injury not disease. Injury and disease appear to be distinct concepts under the Act and
are not synonymous.

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65. This power to institute prosecutions in the Industrial Court is not a bar to the other
powers which the Inspector has, such as his powers under section 74(1), which
empowers him to serve a prohibition notice or an improvement notice where a
person is contravening the Act. As I said before to breach or fail to perform a duty is a
contravention of the Act and therefore if conditions exist which would promote,
encourage or allow the introduction or persistence of an occupational disease, the
Inspector may issue a prohibition and improvement notice which will remove the
existing danger.
66. But what happens if the employer fails to take steps to comply with notices? This is, I
think, a failure to follow a prohibition or a restriction or directive or an instruction and
therefore will constitute a safety and health offence, apart from the substantive
failure of the employer to ensure the other duties, which is why he was served in the
first place with the orders.