Supreme Court of Mauritius, 20 avril 2026, 2026 IND 14 – OSHI v Terragri Ltd

1 OSHI v Terragri Ltd

2026 IND 14

Cause Number 54/22

In the Industrial Court of Mauritius (Criminal side)

In the matter of:

OSHI

v.

Terragri Ltd

Judgment

Accused being an employer is charged under Sections 5(1), 85(1)(a), 85(1)(b) and 94(1) (i) (vi) of the Occupational Safety and Health Act – Act No.28 of 2005 with unlawfully: 1. failing on or about the twenty second day of January 2018 to ensure so far as is reasonably practicable, the safety and health of one of its employees at work namely one Balraj Elappa who sustained acute illness due to absorption of chemicals by inhalation when he was carrying out herbicide spraying work in the sugarcane field situated at Beau Plan. 2. failing to forthwith notify the Director, Occupational Safety and Health by the quickest practicable means of an accident arising out of work which occurred at its place of work in the sugarcane field situated at Beau Plan and resulting in acute illness sustained by one of its employees namely one Balraj Elappa

2 due to absorption of chemicals by inhalation which necessitated his admission into hospital for more than 24 hours. 3. failing within 7 days to send a report of an accident arising out of work which occurred at its place of work in the sugarcane field situated at Beau Plan on 22.1.2018 to the Director, Occupational Safety and Health in the form set out in the Thirteenth Schedule to the Occupational Safety and Health Act 2005 – Act No 28 of 2005 and as a result one Balraj Elappa sustained acute illness due to absorption of chemicals by inhalation which necessitated his admission into hospital for more than 24 hours. The Accused has pleaded not guilty to count one and guilty to counts two and three and has retained the services of Counsel at its trial.

The particulars of the offence under count one, are as follows:

(a) No sufficient and suitable risk assessment was carried out for the work associated with the use of tractor bearing registration number 4446 OC 04 for the spraying of herbicide prior to the accident.

(b) The tractor was not properly maintained; gaps were found at the back of the tractor and in the windows of the tractor, thus allowing the herbicide contaminated air to enter the tractor; Balraj Elappa was thus exposed to the contaminated air.

(c) No suitable and appropriate personal protective equipment such as respirator against organic vapours, rubber gloves and coveralls, overlong-sleeved shirt and long pants were provided to the employee.

(d) No adequate training was provided to the employee for the use of tractor and Jacto sprayer to spray herbicide in the fields.

Given that the Accused’s representative has pleaded guilty to counts two and three, the evidence borne by the record was confined to count one.

The Prosecution case –

3 Mr. P. Seetohul in his capacity as Acting Principal Occupational Safety Officer gave evidence in Court.

He enquired into an accident at work which occurred on 22.1.2018 in the sugarcane field of Beau Plan of Terragri Ltd when Mr. Balraj Elappa sustained acute illness due to absorption of chemicals by inhalation (namely inhalation of herbicide at work as per a medical certificate produced (Doc. A)) when he was carrying out herbicide spraying work through a tractor bearing registration number 4446 OC 04 driven by him.

On 29.1.2018, he went to the locus of the accident and took a set of 6 photographs which he bound in a booklet with explanatory notes (Docs. B1-B6). He recorded two statements under warning from an authorized representative of Accused, Mr. Noisette Guillaume (Safety and Health Officer) on 20.12.2018 (Doc. C) and on 17.6.2020 (Doc. D) whereby count one was denied. He has produced a risk assessment report from the Accused (Doc. E). A training was carried out after the accident on 16.4.2018 as per the training certificate form (Doc. F).

He has produced a document regarding: “Les différentes formulations” which concerned the mixture for the herbicide (Doc. G) and the maintenance record of the tractor no. 4446 OC 04 (Doc. H). He said that there were gaps in the window shield and that the windows were not properly closed. He further stated that no mention of such facts was made as per the several checks made from 2017 to 2018 which meant that the tractor was not properly maintained as per Doc. H. There was a document namely a “Material Safety Data Sheet” hereinafter referred to as “MSDS” stating that the employee who was spraying the herbicide should have been provided with a full-face respirator, appropriate clothing, gloves and eyes protection, but same were not provided to that employee (Doc. J). He produced an accident report submitted by the employer (Doc. K). After his enquiry, he drew up a report as per Doc. L.

His observations when he went to the locus of the accident on 29.1.2018 were to the following effect:

He met the Safety and Health officer of Accused, Mr. Noisette, and the sugarcane field was seen. The Jacto Sprayer and the tractor were also seen. Doc. B1 showed a similar tractor like the one involved in the accident. At the back of the

4 tractor, there was a similar Jacto Sprayer together with its arm connected to the tractor for the spraying of herbicide in the sugarcane field. Doc. B2, he said showed the tractor involved at time of accident for spraying of herbicide in the sugarcane field. Doc. B3 showed the back of the tractor where the Jacto Sprayer was connected. Doc. B4 showed the injured person showing gaps in the window shield of the tractor (at the back of the tractor used at the time of accident) thus, allowing the herbicide to enter in the cabin during the spraying in the sugarcane field. That tractor was not properly maintained as per Doc. B5 wherein the injured person, Mr. Elappa, was showing gaps in the windows and which could not be closed properly. There was a device that was replaced after the accident according to his enquiry, in order to prevent the self- opening of the door while the tractor was in operation as per Doc. B6. During his enquiry, information was gathered that the injured employee who was a driver was requested to use the tractor bearing registration number 4446 OC 04 and the Jacto Sprayer connected to it for spraying herbicide. That tractor was not sufficiently suitable to spray herbicide in the sugarcane field as it was not properly maintained. There were gaps in the windows and the shields allowing herbicide to enter in the cabin while herbicide was being sprayed. No personal protective equipment was provided to that employee like a respiratory mask. No training of the risk associated with the use of that tractor with the Jacto Sprayer connected to it, was provided to him before the spraying of the herbicide. Thus, there was no risk assessment carried out pertaining to that specific activity done by that tractor prior to the accident.

A suitable and sufficient risk assessment should have been carried out prior to the accident for the use of that tractor together with the Jacto Sprayer connected to it and a safe system of work ought to have been provided for the spraying of herbicide.

Moreover, Mr. Elappa was not provided with personal protective equipment (hereinafter referred to as “P.P.E.”) as mentioned in the “MSDS” wherein the said employee should have been given “P.P.E.” for the spraying of herbicide, when only safety boots were provided without a respiratory mask. According to the “MSDS”, “P.P.E.” should have been given to all employees using or handling chemicals, not only for handling, but for using as well, that is, the person operating the tractor to spray the herbicide.

5 Under cross-examination, he conceded that as per Doc. F namely the training certificate form, it was certified that the injured person had undertaken training in the mechanical spraying of herbicide on 15.1.2018 and that the accident happened on 22.1.2018. Then, he candidly admitted that Mr. Elappa had that training before the accident.

As per the risk assessment (Doc. E), drivers were instructed to check tractors prior to use and to report any anomaly thereon. His enquiry revealed no anomalies reported by Mr. Elappa before using the tractor concerned. But according to his enquiry there was no maintenance carried out with respect to the cabin. Then, he decided that the employee did not check the tractor and did not report any anomaly before using it. Again, as per that risk assessment, it was stated that further actions which were required by the persons using the tractors, it was said that short tractors’ openings had to remain closed during mechanical spraying of herbicide and to which he agreed.

When he was put the question whether the employee had ensured that the openings remained closed, he said that Mr. Elappa could not ensure whether the openings could remain closed, because they were broken and which were revealed by the enquiry. The injured person continued using the tractor even though there were openings which were not closing, despite the fact that he was instructed to report any anomaly with that tractor according to the risk assessment. That was because Mr. Elappa was instructed to use that tractor to spray herbicide.

He admitted that had Mr. Elappa reported such anomaly, the accident would have been avoided. But then he decided that there was no training provided to the employees before the accident, as there was no record that there was training for the use of the tractor no. 4446 OC 04 for spraying provided. There was no training record that such information was communicated to the employee and the procedure to be followed. In the risk assessment there was no mention of the tractor no. 4446 OC 04.

He did not agree that the “P.P.E.” was meant for the one handling the herbicide and not the driver of the tractor. The Accused was responsible, as the “MSDS” clearly mentioned that the employee handling the herbicides should have been provided with “P.P.E.” which included the person who was driving the tractor to spray herbicide. A respirator mask ought to have been provided as mentioned in the

6 “MSDS”. According to the photographs and enquiry, the tractor was not properly maintained as there were gaps in the windshield and windows. He did not agree that the injured person opened the window and the door while he was on his job, because that driver was smoking then and thus, allowed the herbicide to enter the cabin of the tractor. According to the medical certificate (Doc. A.), he admitted that there was no mention of any skin irritation.

The injured person, Mr. Balraj Elappa gave evidence in Court. On the material day, he was working as tractor driver for the Accused under the instructions of his Transport Officer, Mr. Bernard de St Perne, who instructed him to go to Beau Plan section and to spray herbicide. Although he told him that he had never done that job before, he said that there would be a “Sirdar” there and who would instruct him what he had to do. When he asked him as to whether he had to wear equipment such as protective masks, he replied by asking him to collect his equipment prior to leaving for that specific work. At about 10.00 hours, he was in the sugarcane field at Beau Plan where herbicide had to sprayed from the tractor which was in the Beau Plan section. He verified the tractor’s windows which were in good condition and not broken. He was instructed by the “Sirdar” how to do the spraying. He was not given a mask for that job. He started spraying herbicide where the land was flat. When the land started to get steep gradually, the window panes were opening on their own and there were holes down in the tractor and through which, the herbicide was entering the tractor from the bottom. He informed his foreman that he could not work as he started to perspire, he was wearing glasses and he started feeling a burning sensation at his eyes. The foreman told him that it was in that way that the work was done. Then, he explained to him that he could not work as the door was opening on its own, the sunroof was falling and that he could not work in that condition and that he was already falling sick. He had already sprayed about one tank full of herbicide and at about 11.00 hours, he went to have lunch. He stopped the tractor and another tank of herbicide was being embarked. After lunch, he approached the tractor to start working again, he could not do so as his eyes turned red and he had redness in his body everywhere. Then, he phoned Mr. Permal who was concerned with transport and emergencies. A driver came to pick him up and the “Sirdar” of Beau Plan told him that he could leave and that there was no problem. He was admitted to hospital for 3

7 days for treatment. He went on to say that it was for the first time that he did that job and that he was not given any equipment by the Accused to do so. Under cross-examination, he admitted the following: (a) As driver given that he was not concerned in the preparation of the mixture for the herbicide in the sense of touching that herbicide, it was normal that he would not get any protective stuffs against herbicide, as he did not have to get any contact with that herbicide. (b) The tractor concerned did not have any broken panes and which were all in correct condition. There were no shortcomings concerning that tractor which was driven by other people before, unlike him which was done for the first time and for the same purpose. (c) Although on the material day it was hot, when herbicide was being sprayed, he was supposed to keep the windows closed. Then, he decided that he did not open the window, but while driving, the window was opening and closing as its support was broken. Its risk lock was broken and when the tractor stopped then, it was normal that it would close. But when he started driving and when there were ramps to the right, the window on the left started to open while returning. There was a problem with that tractor. When the field started getting slopy, the glass panes of the door started opening for about 4-5 inches, the sunroof was falling and the glass pane without being unlocked was moving. He gave a statement to the Inspectorate saying that there were big holes in the tractor where the soil could be seen through them. When he saw all the problems in that tractor, he told the “Sirdar” about them and he was told by him that it was the way the work was done. Then, he said to him that he would not work as he was feeling dizzy. He admitted that he smoked sometimes. He did not agree that he was smoking in that tractor on the material day. He again did not agree that because he was smoking, he opened the window and that he was not allowed to smoke in the tractor. He stated that he did not receive training to do that job prior to the accident. Although he agreed that the tractor had its certificate of insurance, registration book and fitness certificate (Docs. M, M1 and M2), he did not agree that the accident happened because he opened the window as it was hot and that he was smoking at that time.

8 Mr. Harris Azad Mohabuth gave evidence in Court. On the material day, he was working for the Accused and Mr. Elappa was working as Driver. His job was to prepare the medicine meaning herbicide to be placed in the tank in the tractor and to close the opening with its cover and then to ask the driver to drive. He was given a mask, a pair of boots and gloves to do that job. Mr. Elappa came to work with him on site. But after about 2-3 hours, that driver told him that he fell ill and that he would not be able to drive so that he had already informed his Head whereby a transport was being arranged to pick him up. Mr. Elappa left thereafter in a vehicle as per his request and when he told him that he was not feeling well, he was in front of him. He looked normal and he saw him alighting normally from the machine and then telling him that he fell ill. It was for the first time that he came to work with him on the field although he had worked with other drivers before for that job. Under cross-examination, he maintained that he personally saw Mr. Elappa as someone who was normal in front of him and not someone who was ill. All the time he saw him, he was normal. He did not have any problem with that tractor before and he had been working with many drivers on several occasions in the sense that he did not find any driver or any person falling sick in that tractor when herbicide was being sprayed by that specific tractor. He confirmed that he did work in that tractor many times before and with several drivers who did not encounter any problem with that tractor. He saw Mr. Elappa with a cigarette in his mouth as he was a smoker meaning that he saw Mr. Elappa smoking in that tractor when he had no right to do so. The door of that tractor was open and when he asked him to close it, he said that he was feeling hot. It was for the first time that he was working with that driver and there was a problem with him as he had seen him smoking with the door and window of the tractor open and for which he was not supposed to do. When Mr. Elappa was given training, he was instructed that when herbicide was being sprayed, the window and door of the cabin had to remain closed which was the manner things were while he had been working before. Mr. Burhooa Komul in his capacity as Senior Operations Officer gave evidence in Court. On 22.1.2018, he was working as Operations Officer when he received a call from Mr. Elappa that he was feeling dizzy and that he suspected having been

9 contaminated by herbicide. He did the needful for him to be picked up by a driver and to be conveyed directly to hospital for treatment. Under cross-examination, he stated that he had not seen Mr. Elappa on the day of the accident and thus, he was not in a position to know whether he was really ill on that day. The Defence case – The representative of the Accused, Mrs. Kalayvanee Ponien, in her capacity as Health and Safety Officer gave evidence in Court. She confirmed that there was a risk assessment (Doc. E) that was done by the Accused. On the day of the accident, that document was up to date. She confirmed that Mr. Elappa had received the necessary training from The Transport and Garage Manager. He was aware of the procedure that had to be followed for that type of work. If ever there was any problem, he knew what had to be done before going in the sugarcane fields be it any anomaly in the tractor or pertaining to the procedure or to the person. He had to report any anomaly in relation to the procedure or in relation to the tractor to his direct Supervisor. According to the maintenance report, there was not any anomaly that was reported from Mr. Elappa as per the records. Had there been any anomaly, the accused company would have dealt with it. If Mr. Elappa had lowered the glass panes while he was doing the spraying, there would have been micro particles entering in the cabin and that he should not have lowered the glass pane or smoked in the cabin. That could have caused what Mr. Elappa had got. There had been no similar incident reported as regards that specific tractor. The tractor was up to date and it were the acts of Mr. Elappa that could have caused the accident. I have given due consideration to all the evidence put forward before me and the submissions of learned Counsel for the Defence. I find that the evidence led by the Prosecution cannot be relied upon for the following reasons: 1. There is no evidence adduced by the Prosecution showing a lack of synchronization for the targeted spraying of herbicide through the Jacto sprayer and the driving of the tractor no. 4446 OC 04 in the sugarcane field concerned. Therefore, no specific training was called for in relation to that

10 specific tractor for the simple reason that Mr. Elappa while driving the vehicle, did the spraying exercise for the first time. 2. The only qualm of the enquiring officer was that the tractor no. 4446 OC 04 was not properly maintained at the level of the cabin at time of accident as per its maintenance record (Doc. H). However, as per the combined unrebutted evidence of the colleague of the injured person and the representative of the Accused, the tractor was up to date at the material time meaning that it was fit for its purpose as there had been no similar incident reported as regards that specific tractor used by different drivers and by that same colleague on several occasions for that same purpose in the same field. Thus, there had been no anomaly reported at the level of the cabin of that tractor by other previous drivers while doing the spraying at the Beau Plan section. 3. The injured driver admitted that he was a smoker and he himself further admitted that the tractor’s window was in good condition unlike the observations of the enquiring officer who had found that the cabin of the tractor had gaps at the back and in the windows. At no time, the driver had said that there was a problem with the door of that tractor prior to using it so that a device had to be replaced as per Doc. B6 after the accident. Besides, he never said that there was poor maintenance of that tractor which is in line with no anomaly reported as regards that tractor by the previous drivers having previously done the same job that he did at the material time and place namely the driving and spraying of herbicide at the same time. 4. Now, the enquiring officer, Mr. P. Seetohul, although the injured person admitted that he was a smoker, he did not say in Court that his colleague (Witness no.4, Mr. Harris Azal Mohabuth) as per his enquiry revealed to him that Mr. Elappa was smoking at the material time while the herbicide was being sprayed from that tractor while he was driving. Further, although Mr. Elappa was reminded by that Witness no.4 to close the door of the cabin which he opened, he did not do so and that went against the training Mr. Elappa was given namely that he had kept both the window and door of the cabin open at that time and which is the tenor of the unrebutted evidence of Mr. Mohabuth (Witness no.4).

11 5. Furthermore, the enquiring officer stated that there were gaps in the window shield and the windows were not properly closed while the photographs produced by him showed that there was only one gap in the window shield as per Docs. B4 and B5, as one window could not be properly closed as shown by the injured person on 29.1.2018. Now, the injured person did not inform such anomaly in that particular tractor on the day of the accident as per the risk assessment (Doc. E) to his Supervisor before driving that vehicle. In the same breath, had the damage been done as a result of Mr. Elappa having driven on slopy land, there are no photographs produced by the enquiring officer to show that the lock of the windows and doors which were broken on slopy surfaces causing their self-opening were replaced after the accident. There are no photographs produced where the injured person was showing the falling sunroof and the holes found at the bottom part of the tractor allowing contaminated air with herbicide to enter in the cabin, having been replaced and repaired. 6. It was only after having taken his lunch that Mr. Elappa decided that he could not continue working as he was not feeling well after having already sprayed the herbicide for at least one hour. Therefore, it is plain enough that he opened one window and the cabin’s door for a short while just for him to get enough time to smoke a cigarette. 7. Moreover, his said colleague saw him after the accident getting out of the tractor without any redness in his eyes or skin everywhere nor like someone who was feeling dizzy as he was just the same way he was prior to the accident in the morning. Moreover, the medical certificate (Doc. A.) produced revealed no skin irritation. Thus, it is clear that there was no anomaly in that vehicle on the day of accident. That was why Mr. Elappa did not report any anomaly as regards the vehicle to his Supervisor so that he would have been given another tractor for that purpose so that the tractor no. 4446 OC 04 would have been sent to the maintenanc e department then. More importantly, he was seen smoking in the tractor with the window and door opened while the spraying was done and which was against the training he was given as conceded by his said colleague. 8. Now, Mr. Elappa was the only Prosecution witness who said that he was not trained for the job he did on the material day unlike the admissions of his colleague and the enquiring officer and also unlike the unrebutted testimony

12 of the Accused’s representative establishing that he was trained to do that job prior to the accident. 9. The shortcomings in the vehicle as per the photographs produced were found by the enquiring officer one week after the accident and do not reflect the exact state of the tractor at the time of accident. 10. It is abundantly clear that the vehicle was in perfect condition on the material day and that Mr. Elappa had by his own free will opened the door and window of the tractor to smoke momentarily which was against the training he was given following the risk assessment done (Doc. E) wherein he was provided with a protective face (respiratory) mask. There is no mention in the “MSDS” that drivers of tractor had to wear all the “P.P.E.” when doing the spraying exercise as, for instance, Mr. Elappa would not have been able to drive properly had he been wearing an overlong-sleeved shirt as per the particulars of the charge. Indeed, it is clear that he did not collect the protective respiratory mask as he did not collect the protective equipment as requested by his Superior, Mr. Bernard de St Perne, prior to going to work on the material day, as he did not say what the “P.P.E.” consisted of. Therefore, it is clear enough that he did not take a respiratory face mask provided as per the risk assessment report (Doc. E) and which was meant to be a full-face mask as per the “MSDS”, as he knew he would have smoked in the cabin at some stage during the spraying process and which would not have been practical for him as he was wearing glasses. 11. Thus, I fail to see how a risk assessment to have been done for that specific tractor was warranted and that further training would have been needed to be dispensed for that vehicle for the spraying, because the reason being advanced by the enquiring officer was that the tractor was poorly maintained which is not plausible. Therefore, the inescapable conclusion is that the tractor was in perfect condition at the time of accident for spraying purposes and that the injured person was trained prior to doing that job while driving. Thus, I find that all the particulars of the charge as regards count one, have not been established beyond reasonable doubt by the Prosecution namely that the

13 Accused has sustained injury through inhalation due to an unsafe system of work of Accused at the material time and place. Hence, there is no burden which has shifted on the Defence pursuant to Section 96(6) of the Occupational Safety and Health Act 2005 which reads:

“96. Special provisions as to evidence (6) In any proceedings for an offence under any provision of this Act consisting of a failure to comply with a duty or requirement to do something so far as is practicable, or so far as is reasonably practicable, or to use practicable means or to take practicable steps to do something, it shall be for the accused to prove that it was not practicable or not reasonably practicable to do more than was in fact done to satisfy the duty or requirement, or that there was no better practicable means or step than was in fact used or taken to satisfy the duty or requirement, as the case may be.”

I, accordingly, dismiss the information against the Accused under count one and I find Accused guilty as charged under counts two and three given that it has pleaded guilty on those two counts.

S.D. Bonomally (Mrs.) (Vice President) 20.4.26