IOSH Humber Branch Legal Update Brian Pettifer 3 rd December 2014.

IOSHHumber BranchLegal Update

Brian Pettifer3rd December 2014

Woodland v Essex County Council (2013)

•Supreme Court ruling – Education authority can be held liable even though their own employees not involved in the service that allegedly caused injury

•Legal position is:

Civil liability for personal injury can be defended if a competent independent contractor is engaged.

Must show they appointed a competent contractor

Outsourcing Liability


•Woodland claim arose as the school obliged to provide swimming lessons under National Curriculum.

•No facilities at the school so a local pool used with an independent swimming teacher

•During a lesson a child nearly drowned and suffered severe brain damage.



•Supreme court ruled the school and education authority owed non-delegatable duty to the claimants.

•A high court trial to determine whether reasonable care had been exercised was ordered.

•Judgment was that where the duty is not to perform a function but is to arrange its performance the school would not necessarily be liable for negligence of the contractor.



•To avoid liability public bodies must:

Verify the contractor is competent, and Positively ensure contractor is exercising

reasonable care in the actual performance of the function

This goes beyond mere monitoring – requires same degree of care as if the public body was providing the services themselves.

Failure to do this exposes public body to civil and criminal liability for any injury that results.


•Important decision in the Court of Appeal:

Strict liability for a fire under doctrine of Rylands v Fletcher would not normally apply.

This case had tyres set alight by an electrical fire in a neighbour’s premises

Tyres were held to be a natural use of the premises

Accumulation would have had to have been of the thing that escaped (i.e. the fire that spread to the neighbour’s property)

•It is necessary to prove negligence – not always easy•Common law and statutory strict liability (under s86 Fires Prevention (Metropolis) Act 1774 unlikely to apply•Decision makes first party insurance for fire vital

Liability for Fire – Stannard v Gore (2012)

•HSE figures for 2012-13 show: 12 employees fatally injured

The industry accounts for 0.6% of the workforce but 2.8% of reported injuries to employees

190,000 employees expected in the industry by 2020

1/3 of fatalities – being struck by vehicles

1/3 of major injuries – slips and trips

Nearly half over-seven day injuries due to handling

63% of all reports of injuries mention failure to use or specify correct PPE

Waste & Recycling Industry Safety

•The industry claims accidents have reduced although enforcements from historic events have increased

•CIWM launched voluntary health, safety and welfare pledge for waste and resource management sector. Purpose to help raise awareness & promote safety issues

•Visible, involved and engaged leadership is key

•Supervision and ensuring procedures taught in training are used are important

•Physical barriers preferred to painted lines and signs


•Lowmec Alloys Ayrshire, waste-recycling firm:

•Fined £118,000 for serious safety failings

•Agency worker severed left arm at the shoulder while clearing conveyer belt blockages

•Prosecuted for failure to prevent access to dangerous moving machinery parts

•Guilty of breaches of HSWA sections 2(1), 2(2)(a) and (c)


•Corporate Manslaughter:

7 convictions under Corporate Manslaughter and Corporate Homicide Act 2007

3 cases awaiting trial

Fines range from £480,000 to £8,000

No proper test of the offence against a large organisation yet

Two publicity orders have been proposed

Corporate Killing, Prison Sentences, Fines and other Statistics

•Prison:

124 individuals received immediate or suspended prison sentences for h&s at work related offences

47 individuals imprisoned for individual manslaughter offences related to h&s at work


•Fines:

23 fines of at least £100,000 in last six months

Highest fine was £650,000

376 fines of £100,000 or more over last 7½ years

HSE says worker at least 100 times more likely to die from a disease caused or worsened by work activities than from a fatal injury at work.


•English Heritage accepted a Crown Census equivalent to a criminal prosecution.

•Related to safety failings when 12yr old boy badly cut by a breaking glass floor panel

•The boy jumped on the glass panel that splintered into shards causing severe leg lacerations

•Panel had been walked on by thousands of people previously

•Panel was not toughened or laminated glass and had not been risk assessed for 30 years

Crown Censure

•English Heritage investigated all its historical sites that have glass floor panels

•English Heritage is a Crown body so can not face prosecution

•Agreed procedures exist instead of criminal proceedings

Crown Censure

•Likely to become law in six months time

•CDM coordinator replaced with principal designer role

•Principle designer to plan, manage & monitor pre-construction phase

•Domestic client exemption removed and given to contractor/designer

•Threshold for notifying HSE to be changed – nearly halfing number of notifiable projects

•New shorter, signposting ACoP to be introduced

New CDM Regs

•Published 18th November 2013

•Updates include: building stability; workplace insulation, excessive sunlight and temperature; accommodating for disability; falls from height; traffic signs; smoking

•Revision has simpler language; reference to up-to-date standards; removal of obsolete duties

•Provision of protective clothing; rest facilities and exposure now include in the ACoP

New Workplace ACoP

•The Trust fined £200,000 for failures causing death of a diabetic in-patient

•1st April 2007 patient was admitted to Stafford Hospital A&E with arm and pelvic fractures following a fall

•She was a type 1 diabetic and suffered from mild dementia

•Doctor made aware of her condition and directed daily dose of slow acting insulin. Fast acting insulin was to be administered if blood-sugar rose above 18 mmols

R (HSE) v Mid Staffordshire NHS Foundation Trust

•Patient died on 11th April 2007 from diabetic ketoacidosis – blood sugar was 27.8 mmols

•Systematic failure of patient care during her stay:

•Management failed to prescribe, monitor and enforce proper, structured and rigorous handovers between shifts

•Failed to devise and enforce updating and checking of medical records

•Responsibility lay at highest level of management


•‘Magisterial’ report of the Public Enquiry chaired by Robert Francis QC found:

•“culture of tolerance of poor standards, a focus on finance and targets, denial of concerns and isolation from practice elsewhere”

•Highlighted lack of proper governance, leadership, management and supervision

•Culture was characterised by self-promotion rather than critical analysis and openness


•Francis report highlighted a regulatory gap between HSE and Care Quality Commission

•This case so serious that criminal sanction required even where facts fall short of a charge of individual or corporate manslaughter

•Gap between the HSE and CQG ability or willingness to regulate has caused distress to patients and those close to them

•Intimated that HSE gives less priority to enforcement of HSW s3 duties than to s2 duties to healthcare employees


•Dept of Health expected to act to close the enforcement gap

•Recommended the CQC given power to prosecute under HSWA or a new comparable offence be created that CQC would prosecute

•Government’s initial response to ensure HSE had sufficient resource to carry out its functions in hospitals


•Highlighted as an important theme at the last IOSH National Conference

•A culture of understanding and cooperation that all are inspired to embrace can only be achieved by leadership

•Effective leaders driven by purpose, cause and belief

•High level of passion and commitment is key

•Effective leadership demonstrates benefits of reducing risk so that followers want to participate in cultural compliance

•This important topic is hoped to be included in a new distance learning MSc being developed at the University of Hull in partnership with NEBOSH

Leadership in Occupational Health & Safety

•HSE Triennial Review took place earlier in the year – made 37 recommendations

•It concluded the HSE was fit for purpose and respected by those it regulates

•A recommendation was possible scrapping of the Fee for Intervention (FFI) scheme.

Lofstedt & Other Reforms

•HSE set up a review of FFI shortly after the triennial review was published. The panel was chaired by Alan Harding and included representatives from GMB Union, Federation of Small Businesses and Department for Work and Pensions

•Concluded there was no compelling evidence HSE is using FFI as a cash cow, though the panel cautioned this should be guarded against

•Approx 22,000 HSE visits per year with about ½ on an FFI basis


•HSE have started to give cautions, which Env Health Officers have always done.

•Cautions don’t go on register of prosecutions but do stay on the HSE record with no end date (unlike convictions)

•Concluded that FFI is set to stay since there is no viable alternative


•Another recommendation was for greater commercialisation of HSE’s activities

•DWP stated “in the long term the Government would like to see HSE meeting a much larger proportion of its costs from commercial activities

•Suggestion to provide a new major hazards land planning service – new commercial director appointed to drive this forward

•Steering group to advise on options to commercialise HSE

•HSE is assisting Abu Dhabi’s Environmental Health and Safety Service – may offer services to other countries


•Recommended that HSE needs to be “reviewed and refreshed”

•Board members need skills strengthening “to include modern communication know-how, improved commercial acumen and delivering customer and focussed services”


•Government has brought forward the Social Action, Responsibility and Heroism Bill (SARAH)

•3 factors to consider in a civil action: Defendant acting for benefit of society or any of

its members Defendant demonstrating genuinely responsible

approach towards protecting the safety or interests of others

Defendant acting heroically by intervening in an emergency to assist an individual in danger and without regard to the person’s own safety and other interests

•Aim is to make the law more clearly on the side of employers who do the right thing & people who carry out good deeds


•Review found that recommendations for action in Lofstedt have mainly been dealt with

•Regs consolidating legislation on explosives and acetylene (>20 instruments), genetically modified organisms (4 instruments) and petroleum (8 instruments) will soon be in place

•Task of reviewing 52 ACoPs underway 12 revised ACoPs have recently been published 3 have been withdrawn (including Management

Regs ACoP) Consolidated dangerous substances and

explosive atmospheres, asbestos and gas safety into single ACoPs


•Bill exempting 800,000 self-employed workers from h&s legislation has passed committee stage in House of Commons

•COMAH Regs 2015 will put in place vast majority of Seveso 3 directive

•Domestic legislation will brought in line with the EU Classification, Labelling and Packaging Regulation – CHIP is to be revoked

•Draft Mines Regs 2014 has been approved by HSE

•Asbestos Behaviour Change campaign was launched in October


•Revised guidance on care homes has been published

•Government’s Health and Work Service to launch on 15th December

Offers help to employees on sick leave for 4 weeks with a ‘return to work plan’

Referral route through GPs with 2 elements:1) State-funded assessment by occ health

professionals2) Call centre-based service with signposting to

interventions such as Universal Job Match and case management for employees

•DWP expects ~ 560,000 absentees will use the service annually – some tax relief will be available for employers


•Primary Authority’s scheme was extended on 6th April to cover fire safety

•Scheme allows businesses that operate in more than 1 local authority area to deal with a single lead local authority on regulatory issues


•HSE is able to recover costs of carrying out its regulatory function under the fee for intervention scheme

•An organisation will receive a Notification of Contravention detailing alleged material breached of h&s law

•This is done at an early stage before full investigation completed - there is a danger that change required by the inspector has unexpected consequences and contributes to an incident

Can Regulators be Liable?

•Gorringe v Calderdale MBC (2004) shows the difficulty in trying to sue a public body

•Claimant was in a car crash and he tried to blame the local authority for not putting a warning on the road to slow down

•Court held no liability will arise in negligence out of a mere failure, without more, by a public body to confer a benefit by its omission to fulfil a public statutory duty


•HSE v Thames Trains (2003) – example of a regulator being held to potentially owe a duty of care

•Case related to the Ladbroke Grove train crash in 1999

•Thames Trains claimed Her Majesty’s Railway Inspectorate (then part of the HSE) breached its duties under HSWA 1974

•Claimed the regulator had special knowledge, input & involvement in relation to the dangerous signalling system over a period of 3 years


•HSE appealed to strike out the claim saying it did not owe a duty of care

•High Court Judge declined and HSE appealed

•Court of Appeal upheld the judge’s decision – whilst HSW did not give rise to an action under breach of statutory duty it was possible the facts of the case could lead to a claim in negligence

•Case was settled out of court so issue was not resolved

•Not a settled area of law – claim against a regulator more likely to be substantiated where negligence concerned a positive act rather than an omission to act


Any Questions?

IOSH Humber Branch Legal Update Brian Pettifer 3 rd December 2014.

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