Session 1 by suchenfz

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									European Institute of Medical and Health
                Studies


Introduction to Occupational Health and
            Safety Legislation
                Module 2

            November 2009



                                           1
 Administration and Introductions


– Fire Procedures
– Breaks (Coffee, Tea and „Micro‟ breaks)
– Lunches
– Handouts
– Delegate introductions and personal
  learning needs
               Module Aims


• The aim of this module is to provide the
  student with sufficient knowledge and
  understanding of statutory and common
  law in the field of health, safety and
  environmental protection to enable them to
  fulfill their function of providing the
  employer with advice and assistance on the
  implementation of statutory and common
  law requirements, and of criminal and civil
  liability.
              Module Objectives

1. Describe the historical development of law;
2. Identify the institutions of the European
   Union and outline their functions;
3. Describe the law making processes of the UK
   and the EU;
4. Identify the principles of the English legal
   system;
5. Outline the legal structures and the
   organization of the courts of law with respect
   to health, safety and environmental matters;
              Module Objectives

6. Describe the health, safety and
   environmental law enforcing systems and
   the powers of enforcing officers;
7. Know and understand the statutory duties in
   the following legislation, (including relevant
   Approved Codes of Practice and Guidance
   Notes); [List in handbook]
8. Know and understand the common law
   duties with respect to employers,
   employees, contractors, and members of the
   public
               Module Objectives


7. Evaluate the impact of criminal and civil
   legislation relevant to the student‟s own
   employer;
8.  Analyse an accident investigation report with
    respect to the relevant civil and criminal
    legislation and the common law;
9. Understand the role of the health and safety
    practitioner in the criminal and civil process; and
10. Understand the relevant aspects of employment,
    contract, and consumer law.
             Along the Way
– Assignment briefing
– Recent published cases
– Accessing legal databases
– On-line session today
– Briefing for Tuesday (directed group and
  individual work)
– Library session Tuesday pm
– Friday am presentations
– Browse edges of Risk Management Module
           Active Participation


• Individual and group tasks
• Directed study periods during the week
DateKey Events
1802    The Health & Morals of
        Apprentices Act
1842    First Factories Act
1845    Launch of the SS
        Great Western

1851    Great Exhibition
1875    Explosives Act
1879    Tay Bridge Collapse
          Lessons


“That men do not learn very
much from the lessons of
history,    is   the    most
important of all the lessons
that history has to teach.”
       Aldous Huxley, 1959
            Tay Bridge

“Sir    Thomas      Bouch    had
necessarily to use his own
judgement in regards of points of
novelty on which the experience
of other engineers would give
him but small assistance...”
       Newspaper Quote, 1879
Saltash Bridge, Tamar 1859
Tay Bridge Collapse, 1879
Tacoma Narrows, 1942
Galloping
After Collapse
              Gentle Start


• The law in practice
   – Common place accidents
   – Breeches in law
   – Work equipment and machinery mainly
             Assignment


– Breech of statutory duty
– Sources of information
– Some preparation time possible this
  week
               Assignment
Part A
The right hand of a 17 year old girl, in
full-time employment with the
company, was injured in a mill used for
crushing a mixture of dye pigments.
The mill was a type commonly used in
the industry and required thorough
cleaning between batches.
                Assignment


…The injured employee was engaged in
 cleaning the inside of the mill when a
 workmate switched on the machine as a
 prank intended to startle her. The cloth
 she was using caught in the in-running nip
 of the crushing rollers dragging her hand
 between them…
              Assignment


…..The mill was fitted with an
interlocking guard that was intended to
prevent the mill from working when the
lid was opened but the interlock
mechanism had been bypassed by the
operators in order to speed up the work.
                 Assignment


Outline the legal actions that may be open to
the injured person in a claim for compensation,
and the tests that would have to be made for
the actions to succeed.

Explain the defences that the company might
use to refute or limit the claim.
              Assignment



Part B
  Discuss the extent to which the
 requirements of the management of
 Health and Safety at Work
 Regulations 1999 support and/or
 extend the requirements of Sections 2
 to 7 of the Health and Safety at Work
 etc Act 1974.
             Assignment


Both parts must be answered & an
overall mark of 50% must be achieved.
The total length should not exceed
3000 words (excluding appendices,
references and bibliography)
               Task: Group


• In groups, research five cases in the list
  using the Lexus on-line database (you need
  your Athens username and password)
• The list gives you a one line summary of
  the facts, you must provide a paragraph or
  two giving a more detailed outline of the
  case (template provided)
• CRUCIALLY, you must also cite recent
  cases in which the decision has been
  referred-to.
Common & Statute Law


  General Introduction
   (not H&S specific)
               Common Law


• Common law is unwritten being derived
  from local & customary laws and the
  decisions of judges but is nevertheless
  binding
• It evolves continuously as precedents are
  established decisions of a lower court can
  be overturned by a higher court
               Statute Law


• Statute law is passed by Parliament,
  approved by the Sovereign & is written
  (published law)
• It takes precedent over all other forms of
  Law (Common Law) etc
• Some Statute law is derived from decisions
  of the European Union (Directives etc)
              Burden Of Proof


• Criminal Law exists to punish offenders and
  guilt must be established “beyond
  reasonable doubt”
• Civil Law is concerned with compensation
  and redress: the burden of proof is “the
  balance of probability”
• This is a lower standard of proof and a civil
  action may succeed where a criminal case
  has failed (e.g. the OJ Simpson case)
     Civil Courts (England & Wales)

• The County Courts deal with Civil cases.
  The judge normally sits alone though a Jury
  may sometimes be used
• The High Court of Justice may also deal
  with civil cases
• The Court of Appeal (Civil Division) hears
  appeals from the lower courts
• Once again, the House of Lords is the
  ultimate court of appeal
• Civil cases are often settled out of court
                Civil Action


• If an accident occurs and somebody suffers
  injury or loss and negligence or breach of
  statutory duty can be proved damages may
  be recoverable
• Documents, including accident reports, risk
  assessments etc disclose-able
             Time Limitations


• Actions for personal injury claims etc
  normally have to be brought within 3 years
  of the accident
• In the case of a disease such as asbestosis
  the limitation is 3 years from the diagnosis
  of the condition
• Courts have the discretion to allow time
  barred cases to proceed in some
  circumstances
          Understanding Citations


• A court action brought by Harriman (the
  Claimant) in dispute with Martin (the
  Respondent), the case is referred to as:

 HARRIMAN v MARTIN (said as Harriman and
                   Martin)
                    or
 R. v SMITH where the claimant is the Crown
           Understanding Citations

• Does not tell date of case or where it is in
  the law reports or journals
• So, each case has a unique citation or
  reference:

  HARRIMAN v MARTIN [1962] 1 WLR 739

• This tells you precisely where to find the
  case in the law library - Weekly Law
  Reports for 1962, volume 1, at page 739
           Understanding Citations


• New citation style
• Called a Media Neutral Citation
  – lack a volume number
  – use the abbreviation of the court rather than a
    law report
• E-copies emerge before traditional sources
                Negligence


• Donoghue v Stevenson (1932) must take
  reasonable care to avoid acts/omissions
  which you can reasonably foresee would be
  likely to injure your neighbour”
• This duty of care is owed to people who are
  closely & directly affected by your
  acts/omissions (e.g. employers, employees,
  contractors, visitors, suppliers)
      Donoghue v. Stevenson (1932)
     Duty of Care – Neighbour Principle


• Negligence.
• Whether duty owed to person injured.
• Duty of manufacturer of article to ultimate
  consumer.
• Bottle of ginger beer bought from retailer.
• Bottle containing dead snail.
• Purchaser poisoned by drinking contents.
• Liability of manufacturer to consumer.
              Master‟s Duty


• Wilson & Clyde Coal v English 1938 A
  leading case which established an
  Employer‟s duty of care towards employees
  “Master‟s duty to a Servant”
• Safe premises
• Safe plant & equipment
• Competent fellow workers
• Adequate supervision
 (cf Health & Safety at Work etc Act)
        Breach Of Statutory Duty


• Damages can be recovered if it can be
  proved that loss occurred because of the
  defendant‟s failure to comply with a
  statutory requirement
• May be easier to prove than negligence,
  especially if the breach has been
  established by a criminal prosecution
        Breach Of Statutory Duty


• Main defences: duty not breached, injured
  party not protected by statute, harm not of
  type statute designed to protect,
  contributory negligence
• Some statutory duties are absolute
            Vicarious Liability


• Employers are vicariously liable for the
  actions of their employees provided that
  the employees were acting in the course of
  their employment (sometimes even if the
  activity was expressly forbidden)
• Limpus vs London Omnibus Co. (1862)
  Employer Liable for accident caused by
  negligent employee
           Duties of Employees


Employees may also be sued. They have a
  duty to:
  - To carry out duties with reasonable care
  - To avoid loss to Employer
NB. Employers not liable for activities that
  do not form part of employees‟
  employment “servant‟s frolic of his own”
Storey v Aston (1869) Employer not liable for
  accident caused during unauthorised detour
          Defence Of Necessity


• A defendant may claim that his/her actions
  arose from necessity (e.g. to prevent a
  more serious accident)
• ESSO Petroleum Co v Southport
  Corporation (1955) A captain of an oil
  tanker jettisoned oil in bad weather to
  safeguard the crew: ESSO convinced the
  court that this was a necessary act and not
  negligence
        Consent:“volenti” Defence


• “Volenti non fit injuria”: cannot expect
  redress if you consent to an act likely to
  result in injury or loss
• Cutler v United Dairies (1933) Cutler failed
  to recover damages after being injured
  trying to restrain a bolting horse: it was
  held he consented to the risk
        Consent:“volenti” Defence


• “Haynes v Harwood (1935) A policeman
  was able to recover damages after being
  injured restraining as bolting horse: he had
  a legal duty to protect life & property and
  was not held to have consented willingly to
  the action
          Contributory Negligence


• Where a person suffers damage or loss
  – Partly his/her fault
  – Partly the fault(s) of other person(s)
• Damages may still be recoverable but the
  amount will be reduced in proportion to the
  claimant‟s responsibility
         Contributory Negligence


• Saywer vs Harlow UDC (1958) Contributory
  negligence was accepted after a woman
  was injured when she put her foot on a
  revolving toilet roll while trying to get out
  of a cubicle
  Occupier‟s Liability Acts (1957 & 1984)



• Duty of reasonable care to lawful visitors
  (invitees, licensees, contractors & those
  with a right under law)
• Need to ensure premises are reasonably
  safe. Dangerous defects must be repaired
  and warning notices displayed as necessary
• Should expect children to be less careful
  than adults
• Common Law duty not to cause trespassers
  intended harm
                   Tresspass

Tichener v British Railways Board (1984)
BRB not liable for injuries to teenage girl hit by
  a train even though fence was not maintained
  (Girl frequently & willingly took risk)
British Railways Board vs Herrington (1972)
  BRB liable for injuries to a 6-year old child
  who had strayed onto the line
                  Tresspass


Bird vs Holbrook (1828) Landowner liable for
  injuries to a trespasser caused by a spring
  loaded gun (trespasser unaware of risk)
            The Woolf Protocol


• Lord Woolf (the Lord Chief Justice) drew up
  a Personal Injury Pre-action Protocol aimed
  at simplifying & streamlining claim
  procedures
• Claims must proceed to a strict timetable
• Defendants must investigate claims &
  disclose relevant documents within the
  timetable
• If the protocol is not complied with, Courts
  may impose tough sanctions
         Criminal Courts (E&W)


• All criminal cases are first dealt with by
  Magistrates Courts. these can try summary
  offences and can commit people accused of
  indictable offences (& commit people for
  sentencing) to the Crown Court.
• The Crown Court tries Indictable offences.
  Trial is before a Judge (with a Jury in
  contested cases). Can also hear appeals
  from Magistrates Courts.
          Criminal Courts (E&W)


• The High Court of Justice hears appeals
  from Magistrates & some appeals from
  Crown Courts.
• The Court of Appeal (Criminal Division)
  hears appeals from Crown Courts it can
  amend or reverse decisions or remit cases
  to lower courts
• The House of Lords is the ultimate court of
  appeal
      Health & Safety
Specific Legislation & Cases
          Goal Setting vs Prescriptive


• …shall ensure that work         • Power press report
  equipment is maintained in an      – name of employer
  efficient state, in efficient      – make type year
  working order and in good
  repair                             – Date etc…etc
• …good construction, sound       • …or to any rotating stock
  material and adequate             bar…
  strength…                       • …guard-rail or other similar
• …free from patent defect….        means of protection shall
                                    be at least 910 millimetres
                                    above the edge...
                                  • …shall not be an
                                    unprotected gap exceeding
                                    470 millimetres between
                                    any guard-rail, toe-board….
             The First Safety Legislation
“If a builder constructs a house
for a man but does not make his
work strong with the result that
the house which he built collapses
and so causes the death of the
owner of the house ... the builder
shall be put to death”

Code of Hamorabi, Emperor of Babylon,
  circa 1750 BC
                Early History

• 1802 The first Factory Act, introduces a
  regulation to limit the amount of time
  which a child may work in a factory to
  twelve hours a day
              1802 Factory Act
• "The Factory Health and Morals Act, 1802"
  applied principally to apprentices in cotton
  and woollen mills. Preamble:

 "Whereas it hath of late become a practice
 in cotton and woollen mills, and in cotton
 and woollen factories, to employ a great
 number of male and female apprentices,
 and other persons, in the same building, in
 consequence of which certain regulations
 are now necessary to preserve the health
 and morals of such apprentices."
                Regulations

1 The master or mistress of the factory must
  observe the law.
2 All rooms in a factory are to be lime-
  washed twice a year and duly ventilated.
3 Every apprentice is to be supplied with two
  complete suits of clothing with suitable
  linen, stockings, hats and shoes
4 The hours of work of apprentices are not to
  exceed twelve a day, nor commence before
  6am nor conclude after 9pm
                Regulations

5 They are to be instructed every working
  day during the first four years of
  apprenticeship in reading, writing and
  arithmetic
6 Male and female apprentices are to be
  provided with separate sleeping
  apartments, and not more than two to
  sleep in one bed.
7 On Sunday they are to be instructed in the
  principles of the Christian religion.
                  Early History

• 1833 Children under nine are now not to
  work at all. Those aged between nine and
  thirteen are limited to eight hours of work
  and must be given two hours of education
  each day (this is the first small step
  towards compulsory education in Britain)

• 1833 act set up an inspectorate with
  initially only four inspectors for the entire
  country.
                 Early History


• Mines Act of 1842 makes it illegal for
  women of any age and for boys under
  thirteen to be employed underground.
 "Whereas it is unfit that women and girls
 should be employed in any mine or colliery,
 and it is expedient to make regulations
 regarding the employment of boys in mines
 and collieries, and to make provision for the
 safety of persons working therein; Be it
 therefor enacted:"
                Early History


• The Ten Hour Act of 1847, stipulates 10
  hours as the maximum working day for
  women and children in factories and textile
  mills.
                Early History


• Medical and welfare emphasis
• Determining age when Birth Certificates
  uncommon in working classes
      Qualified and Absolute Duties


• …so far as reasonably   • …must
  practicable…            • …shall
• …adequately
  controlled…
      OH&S legislation to 1974
– Piecemeal legal development from 1802:
  industries, processes covered
  morality / religious instruction
  hours of work / children age limits
  welfare provisions
  safety
  occupational health
– Exemplified by Factories Act 1961 and
  supporting regulations
– Overall philosophy: „do it this way‟, as
  distinct from „get it right‟ (Hamorabi)
               1961 Factories Act


Characterised by high degree of prescription, eg
(2) Without prejudice to the generality of subsection
    (1) of this section,-
(a) accumulations of dirt and refuse shall be removed
    daily from workrooms, and from the staircases
    and passages ;
(b) the floor of every workroom shall be cleaned at
    least once every week by washing or, if it is
    effective and suitable, by sweeping or other
    method.
               1961 Factories Act
3) Without prejudice to the generality of
  subsection (1) of this section but subject to
  subsection (4) thereof, the following provisions
  shall apply as respects all inside walls and
  partitions and all ceilings or tops of rooms, and
  all walls, sides and tops of passages and
  staircases, that is to say,-
Bizarre time periods
(a) where they have a smooth impervious
  surface, they shall at least once in every
  period of fourteen months be washed with
  hot water and soap or other suitable detergent
  or cleaned by such other method as may be
  approved by the inspector for the district ;
             1961 Factories Act

(6) Unless the inspector for the district
    otherwise allows, there shall be posted in
    the workroom a notice specifying the
    number of persons who, having regard to
    the provisions of this section, may be
    employed in that room.
                Terminology


• “Suitable & sufficient”, S7 Sanitary
  Provisions
• “Securely fenced”, S14 Other Machinery
• “Substantial construction”, S16
  Construction and maintenance of fencing
• Every hoist or lift shall be of “good
  mechanical construction, sound material
  and adequate strength”, and shall be
  properly maintained, S22
• “Thorough examination” S22
             A Consolidating Act


An Act to consolidate the Factories Acts,
   1937 to 1959, and certain other
   enactments relating to the safety, health
   and welfare of employed persons.
    Recognition of shortcomings
– The „Safety First‟ movement (1920s)
  proposed:
   Safety advisers
   Workplace inspections / investigations
   Safety committees
– Major accidents reveal gaps in coverage
   eg, Flixborough Explosion 1974 - no
     breaches in Factories Act because
     pressure vessel that failed contained
     cyclo-hexane, not air or steam
– Robens‟ Report 1972 captured shortcomings
  in detail:
   Lessons of the Robens‟ Report

– “The primary responsibility for doing
  something about ... occupational accidents
  and diseases lies with those who create the
  risks and those who work with them”
– Too much detailed, obsolete law - should be
  repealed and replaced with law based on
  objectives to be achieved, supported by
  regulations, ACOPs and guidance
– OH&S a management function: proposal
  that employers prepare a safety policy, and
  set out the organisation & arrangements to
  carry out the policy
     Lessons of the Robens‟ Report


• Advocated the principle of “self-regulation”
  – “A system whereby competent and committed
    employers, with the participation of their
    employees, identify dangers, and select,
    implement and monitor preventive measures
    within a framework of law and standards drawn
    up with the involvement of all parties”
            derived from a definition given by Stuart
                         Nattrass (HSE), circa 1985
Health and Safety at Work Act 1974

– Unification of Inspectorates, and agency
  agreements: Rail and Offshore, and
  enforcing authority regulations (for Local
  Authorities)
– Prohibition and improvement notices
– Duty of employers to identify and control
  risks: the „get it right philosophy‟
– Introduction of statutory duty of employers
  to manage OH&S, as well as to comply with
  hardware standards
Health and Safety at Work Act 1974

– Health and Safety Commission and
  Executive (HSC & HSE)
– General duties (sections 2(1) and 2(2) of
  HSW Act based on common law „duty of
  care‟)
– Workers safety representatives and OH&S
  committees
– Annual reports on safety (not implemented)
– Discretion exercised by inspectors, and
  demands upon them (technical and
  resources)
         HSW Act and beyond
– Retention of traditional law; slow and
  piecemeal development of specific safety
  management law
– Limits of self-regulation: large companies
  concerned with corporate image, and
  companies of all sizes with hazards which
  threatened existence, likely to „self-
  regulate‟; others branded as „amoral
  calculators‟
– European-based legislation led to repeal of
  archaic UK legislation and introduction of
  legislation that underpinned best practice in
  OH&S management
Management of H&S at Work Regs 1992

 – Implemented EEC „Framework Directive‟
   under Article 118 of Treaty of Rome
 – Supported by other EU-led regulations on
   workplace, manual handling, use of work
   equipment, personal protective equipment
   (PPE), and display screen equipment (DSE)
 – MHSW Regulations 1992 together with ACOP
   put „flesh on bones‟ of HSW Act 1974
 – Robens‟ Report 1972 arguably only fully
   implemented 20 years after publication!
             MHSW Regulations

• regulation 3:
  – reg 3(1) “Every employer shall make a suitable
    and sufficient assessment of”:
     risks to employees and others “... for the
       purpose of identifying the measures he needs
       to take to comply with the requirements and
       prohibitions imposed upon him by or under
       the relevant statutory provisions”
  – reg 3(3) Review assessments: validity;
    significant change
  – reg 3(4) Five or more employees: record
    significant findings
            MHSW Regulations

• regulation 4:
  – “Every employer shall make and give effect to
    such arrangements as are appropriate” for the
    effective:
     planning
     organisation
     control
     monitoring and review
  – of the preventive and protective measures
  – Note that „auditing‟ is not an explicit
    requirement
       Other relevant Regulations


• Non-industry specific:
  – The Control of Substances Hazardous to Health
    Regulations 2002
  – The Noise at Work Regulations 1989
  – The Provision and Use of Work Equipment
    Regulations 1998
  – The Manual Handling Operations Regulations
    1992
       Other relevant Regulations


• Industry specific:
  – The Offshore Installations (Safety Case)
    Regulations 2005
  – The Railway (Safety Case) Regulations 2003
  – The Construction (Design and Management)
    Regulations 1994
     planning supervisor
     principal contractor
     safety plan
          Compliance regimes


– Systems assessment: „permissioning‟ regimes
   Licensing (nuclear)
   Acceptance (offshore installations, onshore
     major hazard industries in forthcoming
     regulations, railways)
   Safety report submitted; HSE desk review;
     follow up urgent worries; otherwise accept;
     basis for inspections
– Check-Inspection: different regimes in large,
  medium and small organisations
  Compliance regimes - based on size


• Large organisations
  – Systems: audit samples
  – Head Office („Central approach‟)
• Medium / small firms
  – risk-based and accidents / complaints
  – „blitzes‟
  – sample and publicise
• Small firms
  – non-inspection contacts; help line; TV advertisements
  – intermediaries
  – „TORCH‟: transfer ownership to management
        Statistics for HSE:FOD


– Data for 1997 - circa 600 inspectors
– Planned inspections                    120,080
   under-estimate of total inspections
– Prosecutions                           1,758
– Improvement notices                    5,154
– Prohibition notices                    3,401
– Likelihood of enforcement
  action inversely proportional
  to inspection frequency
HSE Assessment of OH&S management

 – Process of inspection designed to assess
   the effectiveness of the management of
   OH&S risks
 – Based on QM principles - assessing
   management competence is different to
   assessing compliance with technical
   detail etc
 – Focus on management systems and
   people
 – Focuses on ability of managers to
   manage the processes of OH&S
   Health & Safety At Work Etc Act 1974



• Section 2: duty to ensure, so far as is
  reasonably practicable the health safety &
  welfare of employees
   – safe workplace & safe working practices
   – information, training & supervision
   – adequate welfare facilities
   – health & safety policy
   – safety representatives & committees
                  HSAWA


• Section 3: employers to conduct
  undertakings so as to ensure so far as is
  reasonably practicable that persons not in
  his employment are not exposed to risks to
  their health & safety
                  HSAWA


• Section 4: duty of those in control of
  premises to non-employees
• Section 6: duties of manufacturers &
  suppliers (includes provision of safety
  information)
• Section 7: duty of employees to take
  reasonable care for their health & safety
  and that of others affected by their acts/
  omissions and to co-operate with employer
                  HSAWA


• Section 8: no person to intentionally/
  recklessly interfere with or misuse anything
  provided for health, safety or welfare
• Section 9: no charge to employees for H&S
  items
                   HSAWA


• Section 20: powers of inspectors
• Section 36: where the commission of an
  offence is due to the default of another
  person - that person shall be guilty of the
  offence
                   HSAWA


• Section 37: Directors are responsible (as
  well as the body corporate) for offences
  committed with their consent/connivance
  or attributable to any neglect on their part
• Section 40: onus of proving limits of what
  is practicable etc..
          Reasonably Practicable
• Edwards v National Coal Board (1949) Risk
  must be insignificant in relation to sacrifice
  (time, effort & expense): NCB claimed
  unsuccessfully that it was not reasonably
  practicable to shore up all mine roads
• Marshal v Gotham & Co (1954) If
  something is practicable, courts will not
  lightly hold that it is not reasonably
  practicable
• Adsett v K&L Steelfounders & Engineers Ltd
  (1953) The standard of practicality is that
  of current knowledge. Not having sufficient
  resources is no excuse for inaction
    Edwards v National Coal Board (1949)
   Reasonably Practicable – „the Quantum of Risk‟

• The balance of cost, time and trouble.
• Mr Edwards was killed when an unsupported
  section of a travelling road in a mine gave
  way. Only about half the whole length of the
  road was shored up. The company argued that
  the cost of shoring up all roads in every mine
  was prohibitive when compared to the risk.
• “so far as is reasonably practicable” means
  that the degree of risk needs to be balanced
  against the time, trouble and cost involved in
  taking the necessary measures to avoid the
  risk.
Wilsons & Clyde Coal Co. Ltd v English (1938)
 Employers‟ Common Law Duty of Care (Employers‟ Liability)



• The employers were held liable for injuries
  to a miner as a result of an unsafe system
  of working.
• The House of Lords held that the employer
  owes a duty of care to his employee:
   – Safe place of work.
   – Safe equipment.
   – Safe system of work.
   – Provision of competent staff and effective
     supervision.
Wilsons & Clyde Coal Co. Ltd v English (1938)
 Employers‟ Common Law Duty of Care (Employers‟ Liability)




• These duties were owed personally by the
  employer to each employee and were non-
  delegable –
• The performance of the duties could be
  delegated, but the responsibility for them
  could not.
    Marshall v Gotham Co Ltd [1954]
             So far as is practicable

• The employer was not liable for a breach of
  statutory duty because Marshall‟s death had
  not been caused by any failure by them to
  take reasonable steps to secure the roof.
• Comparison of „practicable‟ and „reasonably
  practicable‟ precautions.
• Generally interpreted to mean that whatever is
  technically possible in the light of current
  knowledge must be carried out.
• The cost, time and trouble are NOT to be taken
  into account when arriving at a decision.
Mersey Docks & Harbour Board v. Coggins &
      Griffiths (Liverpool) Ltd. [1947]
               Vicarious Liability



• Master/servant relationship – persons who
  must be protected.
• The test:
  “Who had the authority to direct or
  delegate to the workman the manner in
  which the vehicle was driven?”
            Mini-Exercise
– Spend 1hr researching one of the
  following pieces of legislation
– Present 1-2 flipchart pages
– Nominate a member of the group to talk
  to the pages
   •Work at height
   •First aid at work
   •Consultation with employees
   •Manual handling
   •Display screens
     Accident Causation /Investigation


• Traditional approach to OH&S management
  – Do nothing until something goes seriously
    wrong
  – Search for a primary accident cause, and
  – Debate: primary cause:
     unsafe act, or
     unsafe condition?
  The Findings of Major Accidents


– Belief of senior managers: working in
  safe organisations. Mismatch between
  perceptions and reality
– Managers did not know how to seek
  out/recognise symptoms of unsafe
  organisations
– Human factors critical
                Lessons


– “That men do not learn very much from
  the lessons of history, is the most
  important of all the lessons that history
  has to teach.”
                         Aldous Huxley, 1959
Accident Causation / Investigation
                    ACCIDENT

               Investigate accident -
                    steered by
                pre-conceptions of
                 the investigator

      Attribute primary     Attribute primary
      cause to unsafe       cause to unsafe
            acts              conditions

       RULE devised           TECHNICAL
        forbidding          solution to make
        unsafe acts          conditions safe
     Accident Causation / Investigation


• Causation debate missed:
  – Single primary cause bizarre simplification:
    accidents are multi-causal
  – Contribution of conditions & behaviour in
    prevention
  – Latent as well as active failures
   Accident Causation / Investigation


• Preventive action
  – Rules & safeguards devised in aftermath of
    disagreeable accidents may:
     be over-zealous
     conflict with each other & need to get job done
     become obsolete
                Groupwork


• Reminder of Module objectives & learning
  methods
• Task as set
• Agreed „protocol‟ for feedback
• Personal learning points & coursework
  advice
• Proceed onto an important 2006 case
  before the Court of Appeal
               Task: Group


• In groups, research five cases in the list
  using the Lexus on-line database (you need
  your Athens username and password)
• The list gives you a one line summary of
  the facts, you must provide a paragraph or
  two giving a more detailed outline of the
  case (template provided)
• CRUCIALLY, you must also cite recent
  cases in which the decision has been
  referred-to.
             Feedback Protocol

• „Five‟ cases per group modified as a
  number of „no-shows‟ students
• 2-page template given
• Presentation format; Word, Powerpoint
  overhead etc..
• Adamant about need for Word version for
  sharing
• End product a summary of each of the 30
  cases
• Presentations BRIEF outline of each case
  (2-3 mins)
Presentations
    Key Point




Go to primary
  sources!!
                Recent Case


• Court of Appeal (Criminal Division)

               R v HTM Ltd
          [2006] EWCA Crim 1156
    R v HTM Ltd [2006] EWCA Crim 1156


• Important because:
   – Revisits „sfarp‟ and previous CA cases
   – Explains relevance of case law pre-dating
     1974 Act
   – Role of foreseeability
                Circumstances


• Lighting tower 9.5m high moved but not
  retracted hit 7.5m high 20kV line two dead
• Seeking a AC ruling on:
   – Whether „foreseeability‟ is relevant to
     considering whether duty of ensuring
     health, safety & welfare of employees
     „sfarp‟ has been discharged
   – Reg 21 MHSAW precludes defendants
     relying on defence of an act or default of
     employees
               MHSWR, Reg 21


• “Nothing in the relevant statutory
  provisions shall operate so as to afford an
  employer a defence in any criminal
  proceedings for a contravention of those
  provisions by reason of any act or default
  of…an employee of his…”
• Article 5 of Council Directive 89/391
  – “The workers obligations …shall not affect
    the principle of the responsibility of the
    employer…”
                   Judgment

• Foreseeability not relevant in deciding
  whether a workplace was „safe‟
  – Matter of fact for jury to decide
  – Test of „safety‟ a strict one

• Relied on previous CA case (COSHH & latex
  protein in gloves)
  – Dugmore v Swansea HS Trust
    [2002] EWCA Civ 1689

• No difference between substance in fact
  hazardous to health and place being in fact
  unsafe
                   Judgement

• Austin Rover Group v HM Inspector of
  Factories
  – [1990] 1 AC 619,
    [1989] 2 All ER 1087 etc (old style)

• In above case said that sfarp authoritative
  interpretation in previous cases (ie. pre
  1990)
 “the risk of accident has to be weighed
 against the measures necessary to
 eliminate the risk, including the cost
 involved”
                      Judgement


• “If for example the Defendant establishes
  that the risk is small, but the measures
  necessary to eliminate it are great, he may
  be held to be exonerated from taking steps
  to eliminate the risk on the ground that it
  was not reasonably practicable for him to
  do so”
 Lord Goff, Austin Rover Case, 1990
                  Judgement


• Edwards v National Coal Board
  [1949] 1 KB 704 p712
  “rests upon him to establish that it was not
    reasonably practicable…to eliminate the
    relevant risk…taking into account the
    likelihood of the risk eventuating. The
    degree of likelihood is an important element
    in the equation”

   Lord Justice Asquith
                Conclusions


• Foreseeability can be taken into account in
  determining sfarp
• Case law predating 1974 is relevant
• Why?
• Reg 21 in MHSAW Regs not applicable
Benefits of „reasonably practicable‟ approach
         Contributory Negligence


• Saywer vs Harlow UDC (1958) Contributory
  negligence was accepted after a woman
  was injured when she put her foot on a
  revolving toilet roll while trying to get out
  of a cubicle
Recent Cases
           Information Sources


• Lexus
• HSE website - „Enforcement‟
• Freely available policy documents
         IMPORTANT: Lexus Access

•   Library homepage
•   On-line library
•   On-line databases
•   By subject LAW
•   Lexus
•   Athens log-in
•   Search page
               Task: Group
• In groups, research five cases in the list
  using the Lexus on-line database (you need
  your Athens username and password)
• The list gives you a one line summary of
  the facts, you must provide a paragraph or
  two giving a more detailed outline of the
  case
• CRUCIALLY, you must also cite recent
  cases in which the decision has been
  referred-to.
• List cases cited in reaching the judgement
• USE TEMPLATE

								
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