Health and Safety at Work Engineers_ Guide

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ObjecHves. Building on the introductory session. Brief look at the English and Welsh legal system. A step by step overview of the HSWA

The background

The key elementsAreas of uncertainty/issuesKey cases

. Corporate Manslaughter

. Questions.

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Wllat is the L.aw?

.The Health and Safety at Work Act ~)) BURGES. SALMON

The Health & Safety at Work Act 1974

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The Health and Safety at Work Act ((~ B URG ES. SALMON

What .5 the c",aw'?What is the Law?

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Hea!th and Safety a\ Wor~ Act 197-4

tLriS~A) - What rs it?. Places statutory requirements on duty holders tomanage health and safety

" Not legally defined but shorthand. HSWA sits at the top of the legislative framework

Regulations are made under it. Breach is a criminal offence. General Duties are a powerful enforcement tool for HSE. Interpretation is through case law

.The Health and Safety at Work Act ~X~ BURGES. SAUvl0N

'l-!ieald1 al'Q S;i,tety Cl W\J i, 4Cl 197t,1 ineO;lic:kgi ound. Pre 1974 approach

PrescriptiveOut of dateIneffective

. Robens Report/PrinciplesThose that create riskshould control itSelf regulation

. A tiered approach

General duties

Regulations

ACOPS/Guidance/Standards

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ll SW A "rhe lJeta r I. 51 Preliminary

" Sets out objectivesSecuring the health, safety and welfare of workers andprotecting others affected by work (e.g. members of thepublic)

" Defines the scope of risks duty holders must maintain"risks attributable to the manner of conducting anundertaking"

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~ SW A Se(' trQr? Z. 52(1) Duty to Employees

Ensure the health, safety and welfare of all employees at work"so far as is reasonably practicable

. 552 Meaning of work and at work'Work" means work as an employee or as a self employed personan employee is at work through out the time he is in the course ofhis employment, but not otherwise


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So far as is reasori,ably pHlJ,;i:icable. Traditional view" Duty holders should take a step to control the riskunless gross disproportionate to do so

. Common sense ++?

. Alternative view is steps should be proportionateHSE mention throughout their publicationsLaw properly interpreted?Otherwise it means duty holders should take disproportionatesteps

. Requirement for Risk Assessment is inferred .The Health and Safety at Work Act ~X~ BURGES. SALMON

iSWA SecUOl1 i. S2(2) Examples of extent of duty

- Safe work equipment, provision of training and safe place of work. S2(3) Policy

Requires employers (with more than 5 employees) to have a writtenpolicy and description of arrangements to achieve that policyH & S PolicyDescription of arrangements for managing safety policies, procedures, riskassessments, "THE SAFETY MANAGEMENT SYSTEM"

. S2(4) & (6) ConsultationTrade Union with safety representativesOther representatives


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tlSWlt - Section 3. 53 Duty to Non EmployeesConduct undertaking in such a way as to ensure others (i.e. nonemployees) affected by the scope of undertaking are not exposedto risk to their health and safety

SFAIRP/ALARPContractors/sub-contractorsMembers of the public

R v Octel (1996) - scope of undertaking is a question of factRisk = potential of danger, no harm need occur for a duty holder tobe guilty of an offence

. 53(2) Applies to the self employedNote current Lofstedt review/HSE initiatives .

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tlSWA . secUon 4 and 6. S4 - Duties of Premises Controllers

" Obligations on those who control premises to reducerisk to those at work to ALARP but subject only to thelevel of control. S6 - General Duties of Designers, Manufacturers,Importers and Suppliers

- Duties re articles and substances to be used at workSafe and without risk to health subject to ALARPInformation must be provided

.The Health and Safety at Work Act ~):: BURG ES. SALMON

...sW' A Se-:tion'"

. S7 - General duty of every employeeTo take reasonable care for the health and safety ofhimself and for others

" Cooperate with Employer's obligations- No case law on meaning of reasonable care- Practically will turn on whether risk was forseeable andwhether the employee complied with procedures - a

question for the jury


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HsWA - Section 7

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ri$WA Sec:t~ons 8 9 and 14. 58 Duty not to interfere with H&5 Equipment. 59 Duty not to charge for H&5 Training andequipment. 514 Inquiries and Investigations

" Separate from enforcement power to hold publicinquiries (Ladbroke Grove/Southall)- Investigations (Buncefield)


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HSWA Sections 15 and 17. 515 - Power to make regulations

" Wide power to achieve objectivesMost driven by EU Directive requirements

. 516/17 - Approved Codes of PracticeHSE approved and issuedFailure to follow not a criminal offence but in aprosecution that failure will be evidence of a breach ofthe General Duties or Regulations


PiSl4\'A - Sectrion 1 Jj

. 518 - Authorities Responsible for EnforcementHSE, Local Authorities, Office of Rail Regulation, DfT

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~Sll\lA SectioN i 9 aii d 7D. 519 Appointment of Inspectors

Power to appoint. 520 Powers of Inspectors

For the purposes of carrying out a regulator's duties and powersEnter premises and cordon off areasExamine and investigate including record booksTake measurements, photographs and samplesRemove or dismantle equipment and retainTo require answers to questions and require assistance


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HSWA - Sections'" 1 and 22. 521 Improvement Notices

If an inspector believes the duty holder is breaching a statutoryprovisionRequire duty holder to put right in a defined period

Look carefully at the noticeCorrect duty holder - scope of undertakingSufficiently detailed

. 522 Prohibition NoticesIf an inspector is of the opinion there is a risk of serious personalinjury

Serve on duty holder who has control over activity.The Heal~h and Safety at Work Act ~)) BURG ES. SALMON

~~SW Seci rons lJ 2d and 2 ~. 523/24 - Supplementary

Basis for appeal" Within 28 days

Inspector cannot reasonably hold the opinionInspector must have made a proper inquiry

. 525 - Power to deal with Imminent Danger" Seize and render harmless articles and substances


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The Supreme Court


HSWA - sectio.i 33 Offe"c~s. A failure to comply with the HSWA and Regulations is an offence

Maximum fine in the Magistrates - 20kUnlimited fine in the Crown Court

Risk of imprisonment" Health and Safety (Offences) Act 2008. Defend?

Strict liability/absolute dutyQualified by reasonable practicability

Burden switches to defendantBalance of probability

S.? for prosecution to prove beyond all reasonable doubt.


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III \I Howe (1999) - sen\eu\:fng caseaggravating and rnrtigia'dng factors. Aggravating

" Serous injury led from breach- Deliberate/knowing breaches with theaim of cutting costs or maximizingprofit" Failure to respond to past warnings" How far short of the appropriatestandard was the defendant- The degree and extent of risk created

by the breachThe period over which the breachcontinued

. MitigatingPrompt admission ofresponsibility

- Timely plea of guilty

" Remedial action since thebreach became known- That the breach was anisolated incident

An otherwise good safetyrecord


HSW-A - Seri'i,,"s 36 ann '37. 536 Offences due to fault of other person

If a breach is due to the act or default that person shallbe guilty of the offence- Dual criminal liability

. 537 Offences by bodies corporate" Individual liability of Director or similar Officer

Consent/connivance/neglect" Neglect - not what you knew - what you should

have known (see R v P Ltd & another (2007)) .The Health and Safety at Work Act ~)) BURGES. SALMON

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What ~s t he standard? (1)


Whail. is the stat1dat"'d? c l' \. Plan the direction for Health & Safety

Integral part of cultureBoard members take the leadExecutive directors develop policies

. Deliver Health & SafetyEnsure adequate resourceObtain competent adviceConsider implications of change

. MonitorReceive reports on leading and lagging indicators

. ReviewAt least once a yearPolicy reflects company's current plansReporting has been effectiveDecide actions to address weaknesses

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HSWA - Section 38 and 39. 538 Only a safety regulator can prosecute a HSWAoffence

" DPP can give consent. 539 An inspector can prosecute in the Magistrates Court


LtsW A - Sec t;on 'l-O ~e\l eLse bi..troeiri o~ri.ioot. If obligation is qualified by R. P

"it shall be for the accused to prove that it was not practicable orreasonably practicable to do more than what was in fact done. _."I mpact of Offences Act?

- Imprisonment a possibility. Davies v HSE (2002)

Appealed because SAD incompatible with A6(2) ECHR" Presumption of innocence in criminalproceedings


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Reverse blJrden of proC"1. Appeal dismissed

- Not truly criminal - regulatory

" Appropriate way to deal with threat of safety breachesDH choose to engage in work activitiesNot difficult for defendant to proveNo risk of imprisonment


HSWA - S~C l~('ns 42., A3 tlocl' tJ7. 542 Power of Court to order remedial measures. 543 Financial

Fees for Intervention (Oct 2012). 547 Civil Liability implications of H5WA and Regulations

Breach of Statutory Duty of Regulations but not HSW AUnless Regulations say otherwise

Enterprise and Regulatory Reform Bill "removesRegulations important in setting the standard of care owed innegligence


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HSWA Se(,tion 53. 553 Definitions

- Code of practice- Employee- Premises- Supply


P(ev L,egar r SSIJeS

. Scope of undertakingDefined by Contract

- Assumption of responsibility- Statute (e.g. CDM)

. Foreseeable risk?- Rv HTM

. Reasonable Practicability- Meaning

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Reasonab~e Q,acHcabH:1'y - a prac;:icafappl""oacn. Is there a mandatory (regulation) requirement?. Is there an ACOP?. Is there guidance or recognised industry good practice?. Risk assessment from first principles

QuantifiedApplication of qualitative judgment

.The Health and Safety at Work Act ~:(~ BURG ES. SALMON

Safety Decisions/Legal ObligationsRVTrusleesofScienceMuseum

Is it within the scope of undertaking? Key CiSeslAuthor!tvRv Delel

Is there a mandatory requirement? (eg_ speCIfic regulation) SpecificRegulations

Edwards v NeaMarshal1v GothamAustinRover HMIFR2P2 and various ALARPdoes and GuidanceRv HTMEC v UK (2007) -Infractionaction

Identify Reasonably Practicable Actions (nb Reverse Burdenof Proof)CUITenl GoodPractice RealitylSense Cheek

Rv HoweSentencingGuidelinesRvFriskiesPetfoodsCo-defendantsculpability

Rv Janway Davies(85-90% ofproseculionssucceed-Reverse Burden)

Can dien! demonstrate compliance?


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Lii1k to Corpo~ate Manslaughter. Relevant 'Duty of Care'. Gross breach of duty. Bya (collective) 5enior Management failing

. Breach must cause death and must be sustained in the UK

. Death is a foreseeable consequence of the breach

. Investigated by the police and decision to prosecute taken by the CPS

. Individuals cannot be guilty of this offence


ile.evan iOut y o Ca leObligation(s) in law of negligence? - question for Judge_ Employers - Corporations_ Occupiers Companies_ Suppliers of Services - Bodies incorporated under statute orRoyal Charter

- Partnerships, joint ventures, tradeunions etc- Government departments and otherbodies

but prerogative/policy issuesexcluded- Not un-incorporated associations

What entity is taking the decision/making the arrangements? .The Health and Safety at Work Act ~X~ BURGES. SALMON

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Foren"liaUy.b,Evening Standardj , standard.co.uk

Rail bosses face manslaughter charges25.02.07Rail bosses face the prospect of manslaughter chargesafter a damning report by investigators revealed theshocking safety lapses that caused the fatal Cumbriarail crash.Network Rail also faces potentially record punitive fines- running into millions of pounds - for its stewardship ofthe track on which the disaster happened.

The interim report lol.fld that one otthree stretcher bars was missing andtVoAJ others were fractured


But not...mm~N~S l \ 'Page last updated at 13:46 GMT, Wednesday. 2 April 200814:46 UK

A safety modification to RAF Hercules planes that may haveprevented the deaths of 10 servicemen in Iraq was not carried out,their inquest has heard.Their C-130K transporter aircraft was shot down between Baghdad andnearby Balad air base on 30 January 2005.The plane came down after a fuel tank was hit by enemy gunfire andexploded, blowing one of the wings off.The plane had not been not fitted with explosive-suppressant foam (ESF)to stop its fuel tanks exploding when hit.

Ten servicemen died when a Hercules camedovminlraq

Nine RAF servicemen and a soldier died.'Not important'At the time, it was the biggest single loss of life among British forces in theIraq campaign.The inquest into the servicemen's deaths, which is being heard atTrowbridge in Wiltshire, was told that the plane had not been fitted withESF because it was not deemed important enough to instalL.


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Gioss 8reac~1. Has the conduct fallen far below what can reasonably be expected in the

circumstances? The Jury decides. Jury must consider whether there has ben a failure to comply with Health andSafety legislation and:

How serious was the failureHow much of a risk of death was posed

. The Jury may also consider:The extent to which the evidence shows attitudes - policies - systems -accepted practices within the organisation that were likely to haveencouraged such failure or produced tolerance of it.Any Health and Safety guidance that relates to the alleged breach


Ser or M;if1c'l:Jeme"'l1. Is the way in which senior management has organised its activities asubstantial element of the breach?. Senior management

"Responsible for all or a substantial part of... operations' (Not decided byjudge)How was activity managed throughout the organisationWhich organisation/entity is scrutinised?

. Substantial element?Poor or no systems? YesGood and effective systems and a one off event? NoGood/medium systems but medium compliance???

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Corpot ate JVfans.a".lghfel' Prose~L t ions. Cotswold Geotechnical Holdings - 385,000. JMW Farms Limited - 187,500. Lion Steel Equipment Limited - 480,000

. Sentencing Guidelines. Not less than 500,000

Judges not apparently concerned by effect onbusiness?.The Health and Safety at Work Act ~x~ BUR G E S. SALMON

'i~r.l;vrdu;i.i 'lakJrl ;l"

. Individual (gross negligence) manslaughterWhether having regard to the risk of death involved, the conduct ofthe defendant was so bad in all the circumstances as to amount intheir judgment to a criminal act or omission

. Offences under HSWASection 7

" Section 37


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Conc.lJsions. Health and Safety framework is based on self regulation

Those creating risk are best able to manage it. Failure to comply is a criminal offence. There is a reverse burden of proof. Although the meaning of reasonably practicable is uncertain:

For most scenarios the answer lies in compliance with ACOPs,Guidance and authoritative industry good practice. Address obligations under HSWA and risk of prosecution forCorporate Manslaughter and gross negligence manslaughter ismanaged


Questrons?ann.metherall(JburgeSc .salmon. com

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Health and Safety at Work Engineers_ Guide

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