Biggart Baillie Solicitors

Health & Safety Newsletter - Autumn 2008

Inside this issue:

• Tightening Up - The Regulatory Enforcement and Sanctions Act 2008
  Takes Effect
• The Health and Safety Offences Act 2008
• Focus on: Manual Handling Operations
• Update - Corporate Manslaughter and Corporate Homicide Act 2007
• Pleural Plaques Update
• Use of Video Surveillance Evidence in Civil Cases
• Quantum

Tightening Up: The Regulatory Enforcement and Sanctions Act 2008 Takes Effect 
This new legislation was passed on 21st July this year following two Reports that recommended raising the quality and effectiveness of regulatory inspection and enforcement.

The Reports suggested that regulation is not effective enough. Investigation processes are often cumbersome and ineffective, penalties are inadequate and the sanctions available vary widely.

The Act is divided into four parts:-

• Part 1: Covers the Local Better Regulation Office, set up to help the Local Authority Regulatory Services increase their effectiveness.
• Part 2: A Primary Authorities Scheme will help Local Authorities make regulatory enforcement more co-ordinated and consistent.
• Part 3: Regulators will have administrative sanctions to deal with non-compliance (as an alternative to criminal penalties).
• Part 4: Certain Regulators will have a duty to review their functions.

All four parts apply in England and Wales while only parts 2, 3 and 4 are applicable in Scotland, but only in relation to matters that are reserved. For example, much of the consumer protection regulation in Scotland will be affected. Matters devolved to the Scottish Government are unaffected. Parts 1, 3 and 4 took effect on 1st October this year and Part 2 is expected to take effect in April 2009.

The Act allows Government Ministers to issue orders giving Regulators access to four new civil sanctions:

1. Fixed Monetary Penalty (FMP) Notices for low-level minor offences with penalties likely to be capped at £5,000.

2. Discretionary Requirements that are likely to be used where there is mid to high-level non-compliance. The requirements are:-

• A Variable Monetary Penalty (VMP) in an amount determined by the Regulator;
• A Compliance Notice requiring the business to take specified steps within a stated period to ensure an offence does not continue or recur; and
• A Restoration Notice requiring a business to restore the position, as far as possible, to what it would have been prior to the offence within a defined timescale.

3. Stop Notices stopping a business continuing an activity until steps have been taken to comply with the relevant Regulations.

4. Enforcement Undertakings allowing a business, which a Regulator reasonably suspects of having committed an offence, to give an undertaking to correct the position. 

These powers will not be given to all Regulators automatically. Ministers must first be satisfied that they will be used appropriately. There will also be a right of appeal against these new sanctions.

These new powers are likely to have an important effect on businesses. Larger businesses and those operating in highly regulated areas like the construction industry, must now pay more attention to complying with Regulations as the consequences of failing to do so are likely to be more far reaching than in the past.

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The Health and SafetyOffences Act 2008
The Health and Safety Offences Act 2008 has important implications for those concerned with health and safety both in Scotland and south of the border. The Act increases the maximum financial penalties that can be imposed by the lower courts for most health and safety breaches from £5,000 to £20,000. It also gives the courts greater sentencing powers when dealing with individuals who breach health and safety Regulations by extending the categories of offence for which a prison sentence can be imposed. The Act will come into force in January 2009 and, although it does not add to existing duties regarding health and safety, the increased penalties and sentencing powers make it all the more important that businesses comply with their health and safety obligations.

To find out more about the Act click here.

BERR has issued detailed guidance on the new Act.

You may also consider reading the Hampton Review.

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Focus on: Manual Handling Operations
The Manual Handling Operations Regulations 1992 apply to a wide range of activities. Manual handling operations are defined by the Regulations as “any transporting or supporting of a load (including lifting, putting down, pushing, pulling, carrying or moving thereof) by hand or bodily force". The load can include a person or animal.

To comply, employers must:-

• Take all reasonable steps to avoid the need for employees to undertake manual handling involving a risk of injury.
• Where it is unavoidable, carry out a sufficient assessment of the operation and take all reasonable steps to reduce risk to the lowest practical level.
• Povide employees with information about the load(s) involved.
• Provide equipment if reasonably practicable.

These duties were examined in the recent case of Grandison v East Lothian Council

Mr Grandison was employed by East Lothian Council as a slater/builder. He and a colleague were instructed to remove slabs from a garden. This involved using a pickaxe and a large hammer to break up concrete. The claimant tried to lift a section of concrete and felt pain in his back. It transpired that brickwork was also attached to the underside of the concrete. The Council had undertaken a generic risk assessment in relation to dealing with paths and slab work. The Sheriff found that the Council had not done all that was reasonably practicable to avoid the need for their employees to undertake a manual handling operation. It was evident that if such an operation was carried out manually, it could involve a risk of injury. The use of a pneumatic drill, jackhammer or small mechanical digger would have been reasonably practicable. There was an enhanced risk because of the construction of the concrete area and the possibility of brick being attached to the underside. That risk should have been considered. The fact that a generic risk assessment had been carried out did not necessarily avoid the need for a more specific review.

Many manual handling injuries are cumulative rather than attributable to a single operation. Construction workers are particularly susceptible. Manual handling can cause a variety of injuries to the back and limbs and can also exacerbate pre-existing conditions.

The issue of whether a claimant’s condition had been made worse by manual handling was discussed in Halkett v South Ayrshire Council

A roads foreman (45) raised an action against his employers. He claimed that his tennis elbow had been made worse due to the manual lifting and laying of kerbstones. He claimed that over a four year period, he had spent more than 50% of his time undertaking that work. The Council admitted that the method used breached the Manual Handling Regulations. However, it led evidence from an ergonomics expert that the claimant’s work had not exacerbated his condition as there was insufficient loading of the relevant muscles. The Sheriff accepted the evidence of a surgeon that, even if the claimant had spent less than 50% of his time undertaking this work, it could have exacerbated his condition. Every repeat movement during kerbing caused the claimant pain of increasing intensity and duration. He was awarded £8,000 as a solatium (general damages).

To find out more click here.

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Update - Corporate Manslaughter and Corporate Homicide Act 2007
The introduction of the Act in April 2008, should increase awareness of health and safety.

New guidance has been issued by Institute of Occupational Safety and Health  to inform companies of procedures surrounding workplace accidents entitled:

“Learning lessons: how to respond to deaths at work or serious accidents”.

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Pleural Plaques Update
Following the House of Lords’ decision in Rothwell, which we discussed in our Winter 2008 Newsletter, there have been a number of developments both north and south of the border. In Scotland, a Bill has been introduced before the Scottish Parliament. Its purpose is to ensure that the decision does not have effect in Scotland and that people with pleural plaques caused by wrongful exposure to asbestos can raise an action for damages. In England, the Ministry of Justice is undertaking a consultation to consider and seek views on the government response to the House of Lords’ decision.

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Use of Video Surveillance Evidence in Civil Cases
Instructing private investigators to carry out video surveillance can help in defending civil court actions. For example, if there is a suspicion that a claimant is exaggerating the extent of his disability or is working while claiming that he is not fit to do so.

In Martin V McGuiness (2003), the claimant challenged the use of private investigators in civil proceedings. He asked the Court to declare that their conduct was unlawful and award him damages for the infringement of his right to privacy under the Human Rights Act 1998. He also tried to have the private investigators’ evidence excluded claiming that they had come to his house and spoken to his wife making her anxious.The Judge rejected his arguments and held that allowing the private investigators’ evidence would not breach his human rights. Although their behaviour could amount to an infringement of the claimant’s right to privacy in the absence of other considerations, as he was involved in legal proceedings, the claimant should have anticipated that his conduct might be scrutinised.

In Riddell v Leisure Link Electronic Entertainment Limited, Mrs Riddell was awarded damages of £15,000 for a back injury sustained at work. Her former employers hired a private investigator who obtained video footage of her. This showed Mrs Riddell arriving at hospital walking slowly then later in the city centre walking relatively normally.

Her former employers appealed and argued that, in view of the surveillance video and the private investigator’s evidence, no Sheriff could reasonably have concluded that the claimant was acredible witness. They also argued that video evidence was ignored that showed a difference in the claimant’s mobility. Mrs Riddell maintained that this was due to the effect of painkillers.

The Appeal was refused. The Sheriff’s decision was justified as there werec onflicting views from orthopaedic surgeons about the continuing extent of the claimant’s disability, notwithstanding what was shown in the video evidence. The Sheriff was entitled to rely on his own assessment, having had an opportunity to observe Mrs Riddell in the witness box for five days and hear evidence from her husband and son.

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Quantum
In Robson v Grampian Country Chickens (Rearing) Limited, 58 year old woman claimed damages from her former employers after she contracted occupational asthma caused by exposure to formaldehyde and other substances at work. Liability was admitted. Mrs Robson sought damages under several heads of claim, including £20,000 for solatium (general damages) and £10,000 for disadvantage on the labour market. Her asthma could be triggered by various factors and without medication her chest was sore and she could not breath properly. She could no longer swim or cycle. She had lost her job because of her condition and had not been able to cope with her subsequent job. She had limited options for employment as certain types of work could trigger her condition. The Judge decided that £17,500 was appropriate as solatium. Mrs Robson was a resourceful individual but she was now at some disadvantage on the labour market.

This did not merit an award as high as £10,000, however, and the Judge decided that £4,000 would be a reasonable figure.

In Hynes v Lobnitz and others, the Claimant (67) raised an action for damages against his former employers after developing a lung disease due to exposure to asbestos. His former employers admitted that he had suffered exposure to asbestos which would have been sufficient to cause disease, but argued that it was not possible to say whether the fibrotic changes suffered by Mr Hynes was due to exposure to asbestos or caused by connective tissue disease (CTD). They argued that the Court should find that he suffered from mild breathlessness causing 20% disablement attributable to pulmonary fibrosis (5%) and emphysema (15%) and that these conditions had been caused by his CTD and smoking and not by asbestosis. On that basis, there was no risk of the claimant developing a malignant disease because of his exposure to asbestos. Solatium (general damages) was assessed at £25,000. The Court was satisfied that the claimant had developed asbestosis as a result of exposure to asbestos at work. His pulmonary disability was assessed at 15% as the condition was slow and progressive and it was accepted that only part of it was caused by asbestos related disease because of the existence of emphysema and some form of CTD. It was reasonable to attribute half of the 15% disability to asbestos related disease. He had a 5% risk of developing mesothelioma and a 15% chance of developing lung cancer.

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Contacts for Health & Safety Newsletter - Autumn 2008

David Stevenson
Partner, Glasgow

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