Criminal and civil responsibilities of persons exercising supervision over the organization of first aid in workplaces

Urszula Gawrysiak Director of the Department of Health and Safety, Fire Protection and Environmental Protection of Budimex S.A., doctor of medical sciences, Master of Law Jacek Siewiera

Safety (in the context of rescue and first aid issues) in the workplace can be assessed from two seemingly different perspectives. The first of these is the Legislator's perspective, which aims to provide the company's employees with the highest available level of security. The second is the Employer's perspective, in which the main role is played by minimizing the company's risk associated with the occurrence of a possible threat to people's life or health, which is largely supported by the efforts of the Health and Safety Service.

Physical security

Physical security, which is understood in this way, can be characterized as an abstract parameter, the value of which depends on the degree of preparation of the workplace for first aid, conducting evacuation or rescue operations. The way in which the internal rescue system is organized, the quality of planned emergency communications (communications), the manner and scope of securing the workplace with first aid kits and rescue means, as well as the level of training of employees designated for first aid have an impact on the increase in the physical safety of personnel.

Legal security

The second perspective from which one can characterize the level of preparation of the workplace for providing first aid in the event of a threat to the health or life of staff, is the state of legal security of persons responsible for shaping and organization of the first aid system (spp) in the company. Legal security in this case is also an abstract concept, but its level seems to be in a legal sense - as opposed to physical security - quantifiable and determinable on both a civil and criminal level.

Responsibility for the first aid system

Each employer is obliged to appoint, prepare and equip employees for effective pre-medical first aid. The obligation on the employer results from both the Labor Code and the Regulation on general occupational health and safety regulations. These regulations are intended by the Legislator to be complementary to their subject and, by charging the employer, they also indirectly indicate the scope of responsibility of the OHS service in the organization and supervision of the functioning of the first aid system. In art. 207 of the Labor Code Act of June 26, 1974 (i.e. Journal of Laws of 1998, No. 21, item 94, as amended), an order was issued to indicate and inform the plant personnel about the persons designated to provide first aid. In the opinion of the legislator, this regulation turned out to be insufficient, and introduced in art. 2091 § 1 p. 2 of the Code of Criminal Procedure the amendment contains a number of standards that indicate a more precise scope of responsibilities to ensure the safety of personnel in the face of health and life hazards. According to its wording, the employer is obliged to provide both means of communication, first aid points and staff training in conducting rescue operations.A similar regulation can be found in the Regulation of the Minister of Labor and Social Policy of 26 September 1997 on general health and safety regulations (i.e. Journal of Laws of 2003, No. 169, item 1650, as amended). In the content of § 44 para. 1 describes the employer's obligation to provide employees with an efficiently functioning first aid system in the event of an accident, and first aid measures.

Many doubts arise from the employer's obligation, as well as the type of legal liability arising from its possible violation. By specifying the scope of forces and means necessary to provide first aid, the legislator introduced in § 3 a reservation that "the number of employees referred to in § 1 point 2, their training and equipment should depend on the type and level of threats occurring."

In view of the above, it was assumed that in the event of an accident of a workplace nature, the measures provided for and secured by the employer should be sufficient to guarantee first aid to employees. The provision lacks guidelines regarding the number of people who should be covered by the training, how to conduct the training, and the equipment needed to conduct it. All these conditions are each time subject to an individual assessment of the employer, and thus fall under the scope of advice and supervision exercised on his behalf by the OHS service.

Failure to organize a first aid system

In the face of an accident at work that could become the basis for initiating a criminal procedure or civil proceedings in the event of an omission in the organization of the first aid system, the judicial authorities - without special knowledge in this respect - are supported by expert opinions . Experts indicated in the court's decision then assess "ex post" in relation to the accident that took place and which gave rise to the proceedings. The scope of the assessment serves to answer the question: was the level of preparation of the evacuation system, communications, and especially first aid sufficient to provide proper care to employees in a state of life or health? As in all court proceedings, the opinion of experts should be based on premises arising from legal provisions and special knowledge. In this case, its scope concerns medical, technical and organizational knowledge. Although an opinion included in the scope of evidence in the course of proceedings may be the subject of a dispute during the activities of the authorities, it is significant evidence determining the correctness of securing the plant, or the abandonment of responsible persons. The question posed by the judicial authority during expert proceedings is exactly the same as the question to be answered by the employer in order to meet the obligation to provide the number of first aid points and training adapted to the level of threats involved. It reads: What scope of training and equipment would be appropriate for proper preparation of the first aid system?Due to the specificity of hazards present in individual workplaces and particular industries, the answer to this question may be different. The most valid key can be: the proper equipment and training of employees in first aid guarantees that the injured person who can be assisted on the premises of the plant will not be deprived of access to properly provided rescue operations until the arrival of the emergency medical team. < / p>

The above rule remains true, assuming that objectively the injured party can provide appropriate assistance or evacuate him on site. The application of this rule in the decision-making of judicial authorities can be seen on the example of past cases. In the event of an objective lack of access to the injured party caused by an accident, legal liability cannot be attributed to the failure to organize an efficient first aid system. An example of this is the course of proceedings following the accident of November 21, 2006 at the Halemba Coal Mine. In this event - according to the experts - there was a methane explosion and an explosion of coal dust, which killed 23 miners. The proceedings of the Commission of the State Mining Authority and then of the judicial authorities conducted at that time showed a number of violations and omissions in the field of occupational health and safety. They became the basis for bringing indictments against 19 persons responsible on behalf of the employer for ensuring an adequate level of work safety. They concerned mainly the unintentional causing of death during mining operations, and not the proper conduct of rescue operations after an emergency. Such an allegation would be unfounded both due to the correctness of the rescue operation being carried out and the objective inability to assist miners in inaccessible corridors.

This form of explanation, however, cannot be applied to accidents occurring on high storeys of construction sites or large assembly and repair halls. On one of Poznań's construction sites (2013) a fall from a height occurred - an employee fell on elements of steel reinforcement, not covered with concrete, located on the protruding part of the floor. Immobilized between the steel bars, it hung at a height of two meters, bleeding from damaged femoral blood vessels. 18 minutes elapsed from the emergency team's call to his arrival. However, it was too long to save the employee's life. The cause of death was bleeding and chest compression limiting breathing. Both factors could be eliminated if the first aid was given correctly. Difficult access to the victim does not justify not providing assistance. The accident happened at the construction site - the area of responsibility of the employer - at the place where construction works were carried out on a daily basis. The lack of access to the injured person did not result from objectively existing reasons, but only from the lack of proper training of personnel in the scope of first aid. In the legislator's intention, the scope of training and equipment adapted to the level of danger means that the type of skills that should be used by employees designated for first aid should correspond to the specificity of hazards occurring in their work. Therefore, among the staff working at heights, the employer is required to provide training and skills in line with the principles of conducting rescue operations at heights, even if the level of complexity of this action is beyond the scope of basic first aid. Due to the complexity of the training process for high-altitude works and the basics of rescue using high-altitude techniques, this requirement should generally only be applied to employees designated for first aid. Among those carrying out cubature investments, evacuation skills using an orthopedic board, transport stretchers and orthopedic stabilization of the spine are necessary, as injuries requiring such behavior are the most common causes of disability and death in enterprises with this specificity of activity. Adjusting the scope of training to the level of danger means that the training and equipment will be the more demanding the more difficult the conditions in which the work is carried out.

The right way to train and the right number of trained

Similarly, it should be assumed that in the case of office, production or assembly companies employing a significant number of employees, adapting to the level of risk will mean not so much a specialized scope of training as the number of employees who should have knowledge and skills in providing first aid. The main factor resulting from the threat in this type of workplace is primarily the number of employees and the resulting high statistical risk of life threat of an internist nature (resulting e.g. from a chronic disease or sudden deterioration of health such as acute coronary syndrome, stroke or seizure). W przypadku pracodawców zatrudniających znaczną liczbę pracowników prawidłowe przygotowanie osób wyznaczonych do udzielenia pierwszej pomocy obejmuje zarówno właściwy sposób szkolenia, jak i odpowiednią liczbę osób przeszkolonych. W zaleceniach sprzed kilku lat znaleźć można klasyfikację liczby uzależnioną od jednej z trzech kategorii ryzyka, jakie wiąże się z prowadzoną działalnością. I tak dla firm o niskim poziomie ryzyka liczba ta wynosi 1 osobę na 100 pracowników, zaś w przypadku firm przemysłowych, produkcyjnych, wydobywczych i innych, w których ryzyko działalności zakwalifikować można jako wysokie obowiązek ten powinien dotyczyć jednej przeszkolonej osoby na 20 do 50 pracowników.

Responsibility for mistakes made during first aid

In the practical assessment of the preparation of the first aid system in the workplace, there is also considerable controversy regarding the liability of the employer and the OHS service for errors made by employees during the provision of first aid. Although it is well known that both employers and managers are responsible for non-compliance with occupational health and safety regulations or rules (Article 283 § 1 of the Code of Civil Procedure), doubts arise in the case of conducting rescue operations. Pursuant to the content of the Criminal Code, whoever does not provide assistance to a person who is in a state of immediate threat of loss of life or serious damage to health, shall be subject to the penalty of deprivation of liberty for up to three years (Article 162 of the Penal Code). This liability is criminal and applies on general principles. The issue of liability for errors during the implementation of rescue operations remained, however, precisely determined. Is the employee responsible for any errors in the proceedings and who bears any civil effects in the event of damage? Can the demonstration by a worker or injured person of deficiencies in the method of training or securing the plant give rise to a claim for defective first aid? In opinion-making tactics it was accepted to assess the correctness of providing first aid in accordance with the principles that apply to the assessment of the correctness of medical services. Of course, the scope of actions expected under the law is completely different here, however, the basis for assessing the correctness of the conduct of employees remain - as in the case of medical personnel - the recommendations of public authorities and the guidelines of scientific societies dealing with safety and first aid (e.g. Recommendations contained in Inspection publications Labor, European Resuscitation Council Guidelines or written studies of research institutes). For attempts to characterize the security guarantees that the employer provides as part of its activities, the fact that both the level of physical security and the level of legal security of those responsible for the organization of the first aid system in the workplace is influenced is influenced by the same factors and circumstances. The increase in employees' physical security resulting from the provision of first aid measures in an amount corresponding to the specificity of threats occurring in the company, directly affects the increase in civil law security related to potential claims arising from the failure to comply with the employer's code obligations. Similarly, systematic training of employee teams designated to provide first aid on the company's premises, provided that it is implemented in a planned, cyclical and systematic manner, improving personnel skills in the field of saving life and health, reduces the risk of criminal liability of persons responsible for the organization of the first aid system, which may be due to failure to comply with the obligation of continuous training of personnel designated for first aid. From a material and legal point of view, this liability may be realized in the face of effect, pursuant to art. 2 of the Criminal Code, as an act committed by failure to perform the duties of the OHS service resulting in detail from the Regulation of the Council of Ministers of September 2 on occupational health and safety. It can be stated with all firmness that while criminal liability for any mistake in providing first aid remains an individual phenomenon in Polish judicial decisions, the issue of possible civil liability of both the employer and the responsible persons has been more than once face of court subject of expert analysis.

Source: Certificate 11/2015

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