Transcript Document

IOSH
Humber Branch
Legal Update
Brian Pettifer
3rd December 2014
Outsourcing Liability
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 v Essex County Council (2013)
•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.
Outsourcing Liability
Woodland v Essex County Council (2013)
•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.
Outsourcing Liability
Woodland v Essex County Council (2013)
•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.
Liability for Fire – Stannard v Gore (2012)
•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
Waste & Recycling Industry Safety
•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
Waste & Recycling Industry Safety
•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 Killing, Prison Sentences, Fines and
other Statistics
•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
Corporate Killing, Prison Sentences, Fines and
other Statistics
•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.
Crown Censure
•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
New CDM Regs
•Likely to become law in six months time
•CDM coordinator replaced with principal designer role
•Principle designer to plan, manage & monitor preconstruction 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 Workplace ACoP
•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
R (HSE) v Mid Staffordshire NHS Foundation
Trust
•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
R (HSE) v Mid Staffordshire NHS Foundation
Trust
•‘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
R (HSE) v Mid Staffordshire NHS Foundation
Trust
•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
R (HSE) v Mid Staffordshire NHS Foundation
Trust
•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
Leadership in Occupational Health & Safety
•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
Lofstedt & Other Reforms
•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
Lofstedt & Other Reforms
•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
Lofstedt & Other Reforms
•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
Lofstedt & Other Reforms
•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”
Lofstedt & Other Reforms
•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
Lofstedt & Other Reforms
•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
Lofstedt & Other Reforms
•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
Lofstedt & Other Reforms
•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
professionals
2) 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
Lofstedt & Other Reforms
•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
Can Regulators be Liable?
•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
Can Regulators be Liable?
•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
Can Regulators be Liable?
•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?