Health & Safety Update - Spring 2009
In this edition:
Health & Safety (Offences) Act 2008
This Act amends the Health & Safety At Work etc Act 1974 and came into force on 16 January this year. It extends to the whole of the UK and applies to offences committed after 16th January 2009. The Act raises the maximum penalties available to the Courts in relation to many Health & Safety offences.
The Act:-
- Raises the maximum fine that can be imposed in the lower Courts from £5,000 to £20,000 for most Health & Safety offences.
- Makes imprisonment an option for more Health & Safety offences in both the lower and higher Courts.
- Makes certain offences subject to trial in either the higher or lower Courts, whereas, previously, they were only covered by the lower Courts. This means that the penalties available for these offences are now more severe.
A new Schedule, Schedule 3A, has been added to the 1974 Act and this sets out the mode of trial and maximum penalties for Health & Safety offences.
The Act has been introduced in response to concerns that the level of fines for some Health and Safety offences was too low. The increase in the level of fines is intended to encourage employers who do not already do so to take their Health & Safety responsibilities seriously.
It is hoped that by extending the maximum fine to the lower courts and making the option of imprisonment available, more cases will be dealt with in the lower courts and cases will be resolved more quickly and at less expense.
The Chair of the Health & Safety Executive (HSE) has welcomed the Act and indicated that employers who do manage Health & Safety well have “nothing to fear” from this change in the law. It does not impose new duties on employers or businesses.
This new law makes it all the more important that businesses give priority to putting good health and safety practices in place and appreciate the risk involved in failing to do so.
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Respiratory Disease Statutory Compensation Increases.
New rules will raise the statutory compensation payable to people disabled by specific respiratory diseases by 5% with effect from 1 April this year. The Pneumoconiosis Etc (Workers’ Compensation) (Payment of Claims) (Amendment) Regulations 2009 increase the lump sum amount payable under the Pneumoconiosis Etc (Workers’ Compensation) Act 1979. The purpose of the Act is to provide a one off lump sum payment for those suffering from certain diseases, or their dependents if they have died.
If the claimant receives damages in a civil action after getting a payment under the statutory scheme, the amount of that payment is deductible from the damages, although the DWP can then recover the amount of the statutory payment from the compensator.
Health & Safety Statistics 2007/08.
These figures were published recently and indicate that 229 workers were fatally injured in 2007/08. Although the longer term trend shows a reduction in fatal injuries, it appears that there has been very little change in the annual figure over the last 6 years. Of the main industrial sectors, construction and agriculture had the highest rate of fatal injury and those two sectors accounted for nearly half of the fatal injuries to workers.
In Scotland, 32 workers were fatally injured in 2007/08.
"R" v Chargot - Reversing The Burden of Proof?
A decision issued by the House of Lords has raised an important issue which is relevant to employers across the UK. The House of Lords decided that, in a criminal prosecution following an accident under sections 2, 3 or 37 of The Health and Safety at Work Act 1974, the prosecutor only has to establish that there was sufficient risk of a workplace accident occurring in order to trigger the requirement that the employer must show that all reasonably practicable steps were taken to avoid exposure to the risk.
It has been suggested that this decision effectively reverses the burden of proof but the Health & Safety Executive (HSE) has indicated that the rule simply clarifies the existing position. “The Lords have decided that the extent to which a prosecution should give particulars of the alleged breach of duty in a prosecution under Section 2 or 3 of the 1974 Act will depend on the facts of each individual case.”
In the case of Chargot, an employee died after an articulated dump truck he was driving overturned on a farm building site. The employee had not been trained and was unsupervised. There were no witnesses to the accident but an HSE investigation showed that the employee would almost certainly have survived if he had been wearing a seatbelt. His employers, Chargot Limited, were convicted under Section 2(1) of the 1974 Act for failing to ensure the safety of an employee. The main contractors on the building site were also found guilty of failing to ensure the safety of someone not in their employment under Section 3(1) of the Act. A Director of the main contractors was found guilty under Section 37 (1) of the Act of causing the company to commit an offence under the Act and all three received substantial fines. The parties appealed, claiming that the prosecution had failed to plead and prove the specific ways in which the deceased’s employers had put him at risk, for example by lack of training, supervision etc. Instead, the prosecution had simply relied on the outcome of the incident – the employee’s death – to establish risk. The Court disagreed. It was successfully argued that Sections 2 (1) and 3(1) of the 1974 Act describe the result that is to be achieved or prevented, rather than any particular way or ways of achieving this.
House of Lords' decisions in criminal cases are not binding on the Scottish Courts but they are persuasive. This means that, although the Scottish Courts do not have to follow the decision in Chargot, they will take this into consideration when making decisions in future cases.
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Cases - General
Did accident accelerate the development of Parkinson’s Disease?
Smith v McNair
The Claimant was a support teacher and was involved in a road traffic accident at the age of 54. She claimed damages from the driver of the other car for a number of injuries. She also claimed that the impact had accelerated the development of Parkinson’s Disease. The Claimant was unsuccessful and was only awarded damages for the minor injuries she suffered. Without proof that the Claimant had suffered a head injury, her claim that the accident had accelerated the development of Parkinson’s Disease could not be proved. On the evidence, it was impossible for the Court to conclude that the Claimant had sustained any head injury. In any event, the experts did not agree on the type and extent of head injury that would be relevant for the purposes of establishing that this had caused an acceleration of the symptoms of the disease.
http://www.scotcourts.gov.uk/opinions/2008CSOH154.html
Employers’ Liability
Duffy v Enterprise Engineering Services Limited
The Claimant was employed by Enterprise as a pipe fitter. He fractured his ankle when he slipped and fell from an 8” diameter pipe that ran across the route that he had to take when moving round the engine room where he worked. Enterprise denied that they were liable for the accident and argued that the Claimant was solely responsible. He could easily have stepped over the pipe and he did not have to step up on to it. He knew that he was not allowed to stand on the pipe and he knew, or ought to have known, that the pipe was likely to be slippery. There was no need for a step or a scaffolding bridge to get over the pipe and there had been no complaints about the pipe. The Court found Enterprise responsible. The Claimant had followed a route that was open to him and that his employers had expected him and the other pipe fitters to use. On that basis, they had to make the route safe and keep it that way. It was reasonably foreseeable that, even if a pipe fitter exercised reasonable care, he might have difficulty negotiating the pipe and was at risk of slipping and falling. The Court accepted the Claimant’s evidence that he and another pipe fitter had complained about the pipe in the past and had asked for a step or temporary scaffolding so that the pipe could be crossed safely. His employers could have set up a temporary bridge over the pipe. They had failed in their duty of care. It was decided that the Claimant had contributed to the accident to the extent of 25% as there were safer ways to get across the pipe, rather than standing on it.
http://www.scotcourts.gov.uk/opinions/A2118_01.html
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Cases - Quantum
Nicoll v Guild Homes (Tayside) Limited
The Claimant sought damages for injuries he suffered in an accident after a trailer had become detached from the tractor being driven by an employee of Guild Homes. The trailer had collided with the Claimant’s van. The Claimant was 53 when accident occurred. He suffered fractures to both bones in his lower right leg, as well as a fracture of his left thigh bone and cuts to his chest. He had to undergo extensive resuscitation and major surgery. His injuries left the Claimant suffering from an adjustment disorder and, effectively, he was permanently disabled. It was likely that he would require a full knee replacement. Taking into account the nature of the accident, the severity of the Claimant’s multiple injuries, his ongoing disability and the resulting impact on his quality of life, the Court decided that an appropriate award for solatium (general damages) would be £58,000.
http://www.scotcourts.gov.uk/opinions/2008CSOH156.html
Renfrew v Lithgows Limited
The Claimant had been employed as a painter by Lithgows Limited. He claimed that he had contracted mesothelioma as a result of exposure to asbestos dust during his employment. This was admitted but the parties could not agree on the amount of damages to be paid. The Claimant was 63 at the time of the Proof. It was probable that he would die of mesothelioma by the end of the year and the parties were in dispute about how long he might have lived if he had not been suffering from that disease. The Claimant argued that he would have been expected to life for a further 10 – 15 years in the absence of mesothelioma and that £67,500 would be appropriate as solatium (general damages). His former employers valued solatium at £40,000. The Court awarded damages of £55,000, with three quarters to the past. The Claimant’s life expectancy was less than an ordinary man of his age due to his history of smoking and his pre existing vascular disease. In the absence of mesothelioma, he would probably have lived for a further 10 years.
http://www.scotcourts.gov.uk/opinions/2008CSOH118.html
Bell v Allianz Cornhill
An action was raised on behalf of the Claimant, who had been knocked down at the age of 7. He was almost 18 when the Proof (trial) took place. Liability was agreed at 50%. The Claimant suffered a compound fracture of his thigh bone, extensive damage to his hands, legs, knuckles and arms, a deep cut to his shoulder that required a skin graft and a deep head wound. At Proof the main question was whether he had sustained a brain injury leading to neurological problems as a result of the accident. There was also a dispute about whether he had suffered from PTSD. Following the accident, the Claimant had serious behavioural problems and a number of experts gave evidence for the Claimant that he had suffered a brain injury resulting in behavioural and cognitive problems. The judge decided, however, that those witnesses had considered the Claimant’s post-accident behaviour and had inferred from it that he had suffered a brain injury in the accident. In contrast, the evidence of the experts for Allianz Cornhill that the Claimant did not have an acquired brain injury had a sound scientific basis. The judge decided that the evidence established that the Claimant had not suffered any brain injury and, even if he had, it would at most have been mild traumatic brain injury with no neurological consequences. It had not been proved that he satisfied the criteria for a diagnosis of PTSD. Solatium (general damages) was assessed at £25,000, taking into account his fractured thigh bone, the other injuries and permanent disfigurement the Claimant suffered, as well as the operative procedures he had undergone.
http://www.scotcourts.gov.uk/opinions/2008CSOH132.html
Burgess v Napier University
The Claimant was an Exam Invigilator who suffered injuries after she tripped and fell against a wall while leaving an exam room. She suffered a fracture of her right shoulder, a sore neck and sore knee. The problems with her knee resolved after about 6 weeks. She continued to suffer from occasional neck pain. She did not have the same strength or dexterity in her right arm as she had done previously and this restricted her ability to do certain chores. She had been unable to take on the job as Chief Invigilator because of the heavy lifting involved. The Claimant’s case was unsuccessful because she failed to establish how the accident had occurred. If she had been successful, the Court would have awarded £8,500 for solatium (general damages).
http://www.scotcourts.gov.uk/opinions/2009CSOH6.html
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Cases - Psychological Injury.
McGarrell v Scottish Ambulance Service (unreported).
The Claimant was a former paramedic. He raised an action for damages against the Scottish Ambulance Service, claiming that he suffered PTSD following an accident during his employment that this had resulted in his dismissal for gross misconduct. He claimed that his disorder was caused by his former employers’ fault and negligence. Mr McGarrell claimed that he had been exposed to violent, traumatic and distressing events throughout his employment and that he had been abused frequently, threatened with violence and physically assaulted. His former employers’ system of work for providing support for ambulance crews was inadequate as the control room staff were inexperienced and sometimes provided incomplete and inaccurate information - for example, they failed to advise crews about the possibility of violence at the scene. He claimed that they had failed to provide adequate post incident support and had no system for reviewing the health of their employees. The Court decided that evidence would have to be heard before the decision could be made about whether the Claimant’s case was relevant.
Ormsby v Chief Constable of Strathclyde
The Claimant, a former police officer, claimed damages from her former employer for injuries she sustained during a riot. She and other officers had formed a cordon between a building and protestors. The officers were subjected to extreme violence and hostility but were unequipped and unprepared for this. The Claimant suffered a physical assault and also psychological injury. She claimed that she had developed post-traumatic stress disorder, a major depressive disorder with anxiety and agoraphobia and had become withdrawn and socially isolated. She developed many phobias. She was forced to retire from the police and her quality of life was severely affected. She argued that the senior officer in charge had been negligent in deciding to continue with the police operation, as this had exposed the Claimant to an unnecessary and unreasonable risk of injury. The Claimant was awarded damages, but only for the physical injuries she had suffered. The Court decided that those injuries were foreseeable due to the deterioration of the situation and that the officer in charge had been negligent. The Claimant did not succeed in proving that she suffered psychological injuries, however. There was evidence that the Claimant suffered from psychological problems before the incident and that, following the riot, she had coped well with her duties and had continued to socialise.
http://www.scotcourts.gov.uk/opinions/2008CSOH143.html
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The information contained in these articles is given for general information only, reflects the current law on the date of the article, and does not constitute legal advice on any specific matter
Contacts for Health & Safety Update - Spring 2009