Legal Watch - Health & Safety - Issue 3

Legal Watch:Health & SafetyAugust 2014

Issue: 003

In This Issue:

• Introduction

• Health & Safety at Work Act over 40 years

• Greenwoods and Plexus Law successes

• Round-up of cases dealt with

• Round-up of other developments

• Round-up of significant fines over the last

three months

• The combining of the resources of Plexus and

Greenwoods’ Health and Safety teams

IntroductionWhere to now for health and safety in the light of the amendment

to the Health & Safety at Work Act brought about by section

69 of the Enterprise and Reform Act in October 2013? It is still

too early to analyse the full effects of this clause and whether

it has stopped the march of the “health and safety gone mad”

brigade.

Health and safety remains of critical importance to any

business – ensuring that there is a responsible approach to safe

working practices. Nevertheless, there is a lingering concern

that health and safety requirements have been transposed

from the work environment to volunteer activity and there is

perhaps a real question mark as to what extent health and

safety laws apply/should apply to activities undertaken in the

spare time, or voluntarily.

03

Health & Safety at Work Act over 40 years

The Health and Safety at Work etc. Act 1974 – 40 years onThis is a summary of an article previously published in the

Solicitors Journal.

At aged 40 the Health and Safety at Work etc. Act 1974

(HSWA) remains the cornerstone of UK health and safety

regulation, despite the rapid development of new industries

and spectacular advances in technology.

Historically, health and safety regulation in Britain had

been prescriptive and industry-specific. Inconsistencies

developed, there was no requirement for employee

participation and some industries escaped regulation

altogether. By the 1960s, the need for a new approach to

tackle fundamental issues of workplace safety had been

recognised by trade unions and government.

HSWA provides general principles for the management of

health and safety at work. Its provisions and the duties it

creates for employers and others are less prescriptive than

preceding legislation. They are more goal-based, adopting

principles of self-regulation by industry.

Employers must ensure, so far as is reasonably practicable,

the health and safety of employees and others, including

the general public, who may be affected by work being

carried out. The provisions are widely drafted and capture

employers throughout industry and commerce.

HSWA also enables the creation of further regulations

dealing with specific areas of work and risk. This has become

the principal means for compliance with the European

Health and Safety Framework Directive 89/391 EEC. The

Framework Directive resulted in the creation of the so-called

“six pack” of regulations, which impose strict duties upon

employers concerning the use and maintenance of work

equipment, manual handling and the assessment of risks

associated with work.

HSWA also created the Health and Safety Executive

(HSE) and the Health and Safety Commission, to oversee

and enforce health and safety in the UK. These bodies

merged in 2008. The HSE continues to enforce HSWA and

its regulations. The HSE issues Codes of Practice, which

provide industry guidance on compliance with specific

regulations and compiles statistics recording, amongst

other things, the number of fatalities, injuries and dangerous

occurrences reported by duty holders annually.

HSWA has been the subject of significant legal argument in

the Higher Courts, hardly surprising considering its broad,

goal-based approach and a non-prescriptive model of

regulation.

The general duties imposed upon employers are not

strict. They are qualified by a reasonable practicability test

determined by factors, including the nature and extent of

the risk. Once the prosecution has established, beyond

a reasonable doubt, that an employee or non-employee

has been exposed to risk, the burden of proof shifts to the

defendant to establish that, on the balance of probability, it

has taken all reasonably practical steps to control that risk

(section 40). In Davies v HSE 2002, the Court of Appeal held

that the requirement to prove all reasonably practical steps

had been taken and the reversal of the burden of proof were

compliant with ECHR Article 6(2) and did not interfere with

the presumption of innocence. The Court of Appeal noted

that the reverse burden applied to regulatory offences and

not criminal offences punishable by imprisonment.

The European Commission challenged the reasonable

practicability qualification, arguing it was not compatible

with its Framework Directive, which allows member states

to incorporate a defence where an occurrence was due to

unusual and unforeseen circumstances beyond the control

of an employer. The European Court of Justice found that

the provisions of HSWA and, specifically, the reasonable

practicability qualification did comply with the directive

(Commission v UK 2007 – Case C127/05).

04

Today government is focussed on deregulation and reducing

burdens upon business. Following several reports, including

those of Lord Young and Professor Löfsted, and the

launch of its own red tape challenge, the government has

committed to streamlining the health and safety framework.

Nonetheless, HSWA has escaped serious censure and is

still considered fit for purpose. Its underlying principle, that

those who create risks from work activity are best placed

to protect employees and the public, is still considered

relevant.

HSWA has been used to prosecute duty holders in

circumstances probably originally unforeseen by parliament.

Increasingly it is used to prosecute following accidents that

occur outside traditional workplaces involving the general

public. The HSE now investigates and prosecutes those

supplying and operating leisure activities to the public in the

event of accidents.

The police and emergency services are also coming under

increasing scrutiny. The Metropolitan Police was prosecuted

for health and safety offences under section 3 following the

shooting of John Charles De Menezes in 2005. The Greater

Manchester Police, through its Chief Constable, is currently

being prosecuted for the same offence following the

shooting of Anthony Grainger in 2012. Both prosecutions

were brought by the CPS rather than the HSE, a further

departure from longstanding practice.

The very generality of HSWA’s provisions and its non-

prescriptive nature have allowed it to remain relevant today

despite a very different social and working landscape from

that in 1974. There is no reason why it should not remain the

mainstay of health and safety regulation for the foreseeable

future.

For further details contact:

Peter James

E: [email protected]

T: 0844 245 5319

Leisure and the Health & Safety At Work, etc Act 1974The Health & Safety Executive has recently launched a

campaign to highlight the extent to which health & safety law

applies to volunteer organisations, such as sports clubs and

other similar unincorporated associations. This includes a

section of the HSE website dedicated to health and safety in

leisure activities. It does not provide information on activities

covered by The Adventure Activities Licensing Authority

but it is otherwise wide ranging and includes swimming,

organised sporting activities, leisure centres, countryside

visits, children’s play and motorised leisure pursuits, as well

as adventurous, thrill-seeking activities like bungee jumping.

The site makes it clear that while health and safety law does

not, generally, impose duties upon someone who is not an

employer, self-employed or an employee, anyone (including

volunteers) with control of non-domestic premises like a

school or community hall has legal responsibilities to make

the premises and any equipment or substances provided

for their use there, safe, so far as is ‘reasonably practicable’.

However, in our view it is not as simple as that and it may

depend on whether there is any work activity taking place

and the extent of the club’s undertaking.

As a number of recent cases have shown, the courts are

drawing a clear distinction between unsafe premises and

equipment; potentially dangerous activity where there is a

degree of organisation and compulsion to participate; and

those cases where the injured party uses safe premises or

equipment on an entirely voluntary basis.

Cases where the premises or equipment are inherently

unsafe speak for themselves but the other two concepts

can best be illustrated.

In Uren (2013) the claimant was taking part in a ‘fun day’

organised by the RAF. The court found that a competent

risk assessment would have concluded that a game, which

involved competitors getting in and out of a shallow pool,

carried a risk of serious injury which could not be justified

in the light of the social value of the game. The organisers

should have banned head-first entry to the pool which would

05

have prevented the claimant’s injury. Crucially however, the

claim was pursued against the claimant’s employer and

therefore there was a work connection.

In Wilson (2013) the failure of an instructor at an adventure

activity centre properly to explain or demonstrate the

technique for negotiating part of an obstacle course, as

required by the centre’s own risk assessment procedure

and instructor training notes, constituted a breach of duty

of care which was causative of an accident suffered by the

claimant. The claimant was a scout leader who no doubt felt

that he should set an example to his troop by attempting

the course.

However, in Risk (2013), Cockbill (2013) and Grimes (2011)

where the claimants were all injured as the result of diving

into a swimming pool or paddling pools, it was found that

their acts had been entirely voluntary and the hosts of the

events they were attending had no liability. The pools as

such were entirely safe and the claimants were under no

pressure or compulsion to act as they did.

Plexus Law represented the defendant in Risk. At an annual

event run by the student union on the defendant’s land, the

21-year-old claimant had run and dived head-first into a

small inflatable pool. He seriously injured his neck and was

now tetraplegic.

He submitted that the defendant owed a duty of care to

take appropriate steps to prevent him from injuring himself,

which arose as a result of (1) the particular circumstances

and the relationship between a college and its students; (2)

alternatively, the defendant’s assumption of responsibility

in the particular circumstances, including knowledge of the

risks it had acquired from previous years.

Dismissing the claim, the High Court judge held that

although the defendant accepted it owed the claimant a

general duty of care under S2(2) Occupiers’ Liability Act

1957, the question was whether it owed a particular duty

to protect him from the risk he had taken. The issue was

not as to the existence of a duty but its particular scope. A

duty to protect against obvious risks or self-inflicted harm

existed only in cases in which the potential victim had no

genuine and informed choice or lacked capacity. In the

absence of some particular assumption of responsibility,

where the victim was of full age and capacity, was not under

the protective wing of an occupier with control over what

he might do, and had a genuine and informed choice, the

occupier had no duty to protect him from an obvious risk

which he created himself. Tomlinson v Congleton BC (2003)

was cited. By acting as he did, the claimant had created

an obvious and serious risk which would not otherwise

have existed. Whether he would have responded to advice

or warnings from the defendant and regardless of whether

there was adequate supervision, he did exercise a genuine

and informed choice at the critical moment.

Assumption of responsibility required an examination of the

responsibility which the defendant did in fact assume, not

what it should have assumed. Knowledge of the risk was

irrelevant to that issue, although it would become a relevant

consideration in relation to the issue of breach. The claimant

fell a long way short of establishing the necessary ingredients

of an assumption of responsibility. What would be required

was evidence of the very matters he denied: namely,

affirmative steps by the defendant to ensure that proper risk

assessments were taken and all relevant control measures

enforced; or, at the very least, affirmative statements and

representations by the defendant that those specific steps

would be taken. Moreover, in such a case an element of

reliance by the claimant was a pre-requisite of a duty of

care arising on that suggested basis and here reliance was

singularly lacking. In the absence of any indication that the

defendant would safeguard the students in any respect, still

less from their own actions in the face of obvious risks, it

should not be found to have assumed responsibility for the

very matters which the law would otherwise have said lay

within the claimant’s personal sphere.

Plexus Law was successful also in Lu v The Royal Russell

Preparatory School Trust (2013). On 30th September 2011

the claimant, a Chinese pupil at the defendant’s school,

was undertaking her third trampolining lesson under the

supervision of a PE teacher when she over rotated whilst

trying to complete a back drop as a result of which her knee

impacted with her face causing serious injury to her vision

06

considered likely to be permanent. The claimant claimed

the trampolining lessons were poorly structured and

inadequately supervised. This was denied and the case was

defended at a liability only trial in the Central London County

Court where the trial judge dismissed the claim and ordered

the claimant and her litigation friend to pay the defendant’s

costs.

Cases such as these may, in the future, be affected by the

provisions of the Social Action Responsibility and Heroism

Bill, should it become law. In particular, the courts will be

directed to ‘have regard to whether the alleged negligence

or breach of statutory duty occurred when the person was

acting for the benefit of society or any of its members’.

If so ‘the court must have regard to whether the person,

in carrying out the activity in the course of which the

alleged negligence or breach of statutory duty occurred,

demonstrated a generally responsible approach towards

protecting the safety or other interests of others.’

The latest guidance from the HSE is not helpful and

continues to blur the lines between when a volunteer club

may be caught by the HSWA and when it may not. Sadly it

is not as simple as saying the Act will apply to certain clubs

but not others. In truth it could depend on the facts of each

case.

Polyflor Ltd v HSE (2014) EWCA Crim 1522The appellant/defendant’s employee had been injured when

his arm had been caught in machinery while he was checking

it. The machinery normally ran with guards attached but,

when it became blocked, the employee obtained a permit

to work to run the machine without guards. Permission was

given and the employee put a spanner in the belt to find the

point where the belt was rubbing. The spanner got caught in

the machinery, he could not let go of it in time and he broke

his arm. A similar accident had occurred at the defendant’s

premises four years earlier. The jury heard evidence from

the employee who accepted that he had been foolish. An

expert for the prosecution gave evidence that “if someone’s

going to do something stupid, you cannot stop them”. The

defendant made a submission of no case to answer on the

basis that the evidence did not support the prosecution’s

case that the accident was caused by its breach of duty and

that the nature of the accident was proof of the existence of

a risk attributable to the system of work. The judge found

that there was a case to answer based on the existence of

risk arising from the unguarded use of the machine.

The defendant appealed submitting that the judge erred in

rejecting the submission of no case to answer as there was

no evidence of a breach of duty by it and the judge used the

wrong test. It argued that a risk would only materialise if an

employee did something very foolish, which this employee

accepted he did, and that was not sufficient.

Rejecting the appeal, the Court of Appeal held that for

the case to go to the jury, the prosecution had only to

adduce some evidence of exposure to risk. Once that was

established the onus shifted to the defendant to show on

the balance of probabilities that it did all that was reasonably

practicable to ensure that its employee was not exposed

to such risk. The prosecution did not have to prove that

a particular accident was foreseeable. Causation was not

an element of an offence under S2(1) Health and Safety at

Work, etc Act 1974. The creation of a material risk by the

carelessness, including gross carelessness, of an employee

remained a material risk for the purpose of the offence.

The defendant’s employees had been exposed to a clear,

obvious and material risk to their health and safety by the

removal of guards on the machinery so that a maintenance

operation could be performed while the machine was still in

operation. Such an activity was permitted by the defendant

under a permit to work system such that there was in place

a system whereby employees were exposed to a clear risk.

That was sufficient for the evidential threshold to be met.

07

Greenwoods and Plexus Law successes

Health & Safety Executive v X.The prosecution arose out of an accident on 11 September

2012. The victim was a special needs pupil at a school

opened by our client (a charity) just six days previously. Our

client had contracted for all the doors on the new premises

to be fitted with hinge guards but the victim trapped his

left index finger in an unguarded hinge and suffered an

amputation. Despite the fact that there were no guards on

the school’s previous premises, no similar accident had

occurred.

Our client pleaded guilty to breach of S3 of the HSWA. In

its plea in mitigation it accepted that an aggravating factor

was the impact of the injury on the young victim, for which a

claim for compensation had already been made.

In mitigation the court was asked to take into account

how recently the school had opened and the fact that

steps had been taken to design out the very risk that had

occurred. However, the building contractors had failed to

complete the works on time, so that the school had become

operational immediately the works were completed and

they and the supervising architect had failed to ensure that

all guards were fitted as stipulated in the building plans.

Following the accident senior figures involved with the

school had immediately become involved and had ensured

that remedial works were carried out.

Credit was also claimed for the prompt guilty please; the

charity’s lack of previous convictions and the impact on its

finances of any financial penalty.

The outcome was a conditional discharge for our client.

In essence although our client was in breach of the Act

the court accepted the mitigation that this was a case in

which a responsible dutyholder had been badly let down

by its specialist advisers/contractors and therefore this

was reflected in the sentence of conditional discharge. The

court also had in mind, no doubt, the charitable status of

the defendant and any fine would directly impact on the

valuable services that it provides to the children in it care.

Although a conditional discharge is almost unheard of in

health and safety cases, it is important to keep all options

under review, gauge the “mood” of the sentencing tribunal

and be prepared to be bold in the right case.

08

Round-up of cases dealt with

HSE v HMT and anotherWe were instructed on behalf of HMT who were prosecuted

by the HSE under Section 3(1) of the Health & Safety at Work

etc Act 1974 following the death of an elderly resident who

suffered from dementia whilst in their care. Whilst building

works were being undertaken at the care home the elderly

resident wandered into one of the rooms into which the works

were being undertaken. A fire door had been removed and

left leant against a wall. Unfortunately the resident pulled it

on top of her and sustained a broken hip. She died a month

later. A guilty plea was entered at the first opportunity but

submissions to the magistrates for the matter to remain in

the Magistrates’ Court failed and the matter was referred to

the Crown Court for sentence. Ultimately a fine of £20,000

was imposed after detailed written submissions had been

made in mitigation.

HSE v JMWe acted for the defendant who was prosecuted under

Section 3(1)(a) of the Management of Health & Safety at

Work Regulations 1999 for failing to make a suitable and

sufficient assessment of the risks to the health and safety of

his employees and under Regulation 17(1) of the Workplace

(Health, Safety & Welfare) Regulations 1992 in failing to

organise the workplace in such a way that pedestrians and

vehicles could circuit in a safe manner.

The prosecution was brought following the death of one of

the defendant’s employees when he was struck by a vehicle

in the defendant’s yard.

A fine of £20,000 was imposed in respect of each offence.

The magistrates retained jurisdiction.

09

Round-up of other developmentsThere are a number of ongoing consultations but the most

relevant to health and safety generally relates to proposals

to exempt self-employed persons from S3(2) HASWA

except those undertaking activities on a prescribed list.

The proposal stems from a recommendation made by

Professor Löfstedt in his report ‘Reclaiming health and

safety for all: an independent review of health and safety

legislation.’

010

Round-up of significant fines over the last three monthsMay 2014

Stonyhurst College

Breach/Circumstances: A historic private school in Clitheroe

has been fined £100,000 over health and safety failings after

one of its stonemasons developed a potentially fatal lung

disease.

Stonyhurst pleaded guilty to a breach of the Health and

Safety at Work etc Act 1974 by failing to ensure the health

and safety of its employees.

Plea: Guilty.

Sentence: Fined £100,000 and ordered to pay £31,547.78 in

prosecution costs.

Angus Group Ltd , Scotland

Breach/Circumstances: A specialist asbestos removal

company has been fined after it exposed workers to

dangerous fibres during demolition of a former school

building.

Angus Group Ltd was found guilty of eight breaches of the

Control of Asbestos Regulations 2006.

Sentence: Fined a total of £109,000 and ordered to pay a

further £42,100 in costs.

Habitat Construction LLP

Breach/Circumstances: A Southwark construction company

has been ordered to pay more than £126,000 in fines and

costs after a worker was left paralysed from the waist down

when he fell eight metres from an unguarded window space

into a basement.

Habitat Construction LLP pleaded guilty to breaching

Section 2(1) of the Health and Safety at Work etc Act 1974.

Plea: Guilty.

Sentence: Fined £110,000 and ordered to pay £16,620 in

costs.

Refresco Gerber UK Ltd

Breach/Circumstances: An international smoothie and fruit

juice company has been sentenced for safety failings after

an engineer was killed by falling pipework during work to

decommission a former factory in South Wales.

Refresco Gerber UK Ltd pleaded guilty to a breach of

Section 2(1) of the Health and Safety at Work &c. Act 1974.

Plea: Guilty.

Sentence: Fined £80,000 and ordered to pay £75,000 costs.

AAK UK Ltd

Breach/Circumstances: A sauces manufacturer has been

fined £140,000 after a forklift truck driver was killed at a

factory in Runcorn.

Michael Moran was using his forklift truck to load a lorry

trailer outside the factory on the Astmoor Industrial Estate

on 18 April 2011 when another lorry reversed into the side

of his vehicle. The forklift overturned, killing him instantly.

Company pleaded guilty to a breach of the Health and

Safety at Work etc Act 1974.

Plea: Guilty.


prosecution costs.

011

Kemble Air Services Ltd

Breach/Circumstances: Kemble Air Services Ltd, the

operator of Cotswold Airfield, has been fined for safety

failings after an experienced fire-fighter was killed while

moving a pressurised gas cylinder. Mr Mills was attempting

to move a large freestanding cylinder weighing 65kg when

the gas in the cylinder discharged very rapidly. This caused

the cylinder to spin round violently striking Mr Mills on his

head and body leaving him with fatal injuries.

Kemble Air Services Ltd, of Cotswold Airfield, Kemble Nr

Cirencester was found guilty of two breaches of Regulation

3(1) of the management of Health and Safety at Work

Regulations 1999.


costs.

T Lea Sherwin Ltd

Breach/Circumstances: A farming company in Middlewich

has been fined £50,000 after a father-of-one suffered fatal

injuries when a 1.5 tonne concrete panel fell on him.

The court was told the firm failed to carry out a proper

assessment of the risks, or to make sure a safe system of

work was in place. As they lifted the panel, which was six

by one metres in diameter, the bolts attached to the lifting

chains snapped and the panel fell onto Mr Bennett.

T Lea Sherwin Ltd, pleaded guilty to a breach of the Health

and Safety at Work etc Act 1974 on 12 May 2014.

Plea: Guilty.


prosecution costs.

April 2014

Castlebeck Care (Teesdale) Ltd

Breach/Circumstances: Care provider Castlebeck Care

(Teesdale) Ltd has been fined £100,000 after a patient died

while being restrained using an unauthorised technique at a

Nottinghamshire mental health hospital.

Castlebeck Care (Teesdale) Ltd, now in administration was

found guilty of breaching Sections 2(1) and 3(1) of the Health

and Safety at Work etc Act 1974.

Sentence: Fined £100,000.

Mid Staffordshire NHS Foundation Trust

Breach/Circumstances: A vulnerable diabetic patient died

because a hospital trust failed to implement basic handover

procedures and ensure essential record-keeping, a court

has heard.

Mid Staffordshire NHS Foundation Trust was prosecuted by

HSE and pleaded guilty to an offence under the Health and

Safety at Work etc Act at Stafford Crown Court.

Plea: Guilty.

Sentence: Fined £200,000 and ordered to pay £27,049

costs.

March 2014

Gaspack Services Ltd

Breach/Circumstances: A worker filling gas cylinders had

his leg severed below the knee when a faulty cylinder he was

filling exploded at Guardian Gas Ltd, Brynmenyn Industrial

Estate, Bridgend.

HSE’s investigation found the failed cylinder was one of a

batch of cylinders which Guardian Gas had sent to Gaspack,

a certified cylinder inspection body, for inspection, testing

and certification to prove their safety for a further 10 years.

The cylinders had been returned to Guardian Gas certified

as safe to use.

012

Gaspack Services Ltd of Gellihirion Industrial Estate,

Pontypridd, pleaded guilty to a breach of Section 3(1) of the

Health and Safety at Work Act 1974.

Plea: Guilty


costs.

Roberts-Gordon Europe Ltd

Breach/Circumstances: A Wednesbury-based heating,

ventilation and air conditioning manufacturer has been fined

£150,000 after a worker was crushed to death while working

in its warehouse.

Ronald Meese, 58, of Bilston, a production supervisor for

Roberts-Gordon Europe Ltd, had been stacking three-

metre-long metal tubes in the warehouse in Darlaston Road,

Wednesbury, when the incident happened on 27 July 2011.

With the aid of a forklift truck, he had created several stacks,

but as he left his cab to set down timber pieces for the next

bundle of tubes to rest on, one of the stacks, weighing a

tonne, collapsed onto him. Paramedics were called but Mr

Meese was pronounced dead at the scene.

Roberts-Gordon Europe Ltd, of Kings Hill Business Park

pleaded guilty to breaching Section 2(1) of the Health and

Safety at Work etc Act 1974.

Plea: Guilty.

Sentence: Fined £200,000 and ordered to pay £27,049

costs.

EMC Contracts Ltd

Faraday Court in Fulwood

Breach/Circumstances: A Preston-based building firm has

been fined £130,000 over the death of a worker outside a

cinema in Ashton-on-Ribble.

The Health and Safety Executive (HSE) prosecuted EMC

Contracts Ltd after father-of-one Carl Green was struck by

a reversing van in a paved area outside the entrance to the

Odeon Cinema on 27 July 2010.

The 45-year-old painter from Chorley had been working on

a project to fit out a new coffee shop in the cinema when

the incident happened. He died from his injuries on the way

to hospital.

EMC Contracts Ltd, which has been put into voluntary

liquidation, was found guilty of two breaches of the Health

and Safety at Work etc Act 1974. The company, of Faraday

Court in Fulwood, was fined.

Sentence: Faraday fined £130,000 and ordered to pay

£52,790 in prosecution costs.

The information and opinions contained in this document are not intended to be a comprehensive study, nor to provide legal advice, and should not be relied on or treated as a substitute for specific advice concerning individual situations. This document speaks as of its date and does not reflect any changes in law or practice after that date. Plexus Law and Greenwoods Solicitors are trading names of Parabis Law LLP, a Limited Liability Partnership incorporated in England & Wales. Reg No: OC315763. Registered office: 8 Bedford Park, Croydon, Surrey CR0 2AP. Parabis Law LLP is authorised and regulated by the SRA.

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T: 0207 079 4658


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T: 0844 693 5648


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Legal Watch - Health & Safety - Issue 3

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Transcript of Legal Watch - Health & Safety - Issue 3