Health & Safety Newsletter - Winter 2008
Inside this issue:
• Rothwell Decision to be reversed in Scotland
• Changes to Small Claim Upper Limits
• Focus: Work at Height Regulations 2005
• Corporate Manslaughter & Corporate Homicide Act 2007 - Are You
Ready?
• Stress at Work – an Increase in Claims?
• Fall in Numbers of Work Related Deaths
Steps to be taken to reverse Rothwell Decision in Scotland
In November 2007, the Scottish Ministers announced that they intend to use Scottish legislation to reverse the effect of the House of Lords’ Decision in Rothwell v Chemical & Insulating Company Limited and Others. The SNP Government intends to put a Bill before the Holyrood Parliament to change the law so that those who have been negligently exposed to asbestos and diagnosed with pleural plaques will continue to be able to recover damages. The planned measures would take effect from the date of the House of Lords decision, 17th October, 2007. The Scottish Justice Secretary, Kenny MacAskill, is reported as saying that there was sufficient concern about pleural plaques to warrant legislation.
“The effects of asbestos are a terrible legacy of Scotland’s industrial past and we should not turn our backs on those who contributed to our Nation’s wealth in the past. Pleural plaques in anyone exposed to asbestos mean they have a greatly increased life time risk of developing mesothelioma and a small but significantly increased risk of developing bronchial carcinoma.”
Westminster previously indicated that they would not legislate on the issue. However, some MPs are now pushing for change. David Stevenson, Partner in our Health & Safety Team, commented:-
“It was anticipated when the House of Lords’ decision was issued that the Scottish Government might be persuaded to consider legislation. It remains to be seen what form the legislation will take”.
To find out more about this article please contact David Stevenson - email: dstevenson@biggartbaillie.co.uk
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Small Claims Change
Important Changes to Small Claim and Summary Cause Upper Limits
With effect from 14 January, the upper limit for raising a Small Claim action for payment in the Scottish Courts increases from £750 to £3,000. The existing threshold has remained unchanged since 1988. Personal injury claims have been removed from the category of case which can be raised as a small claim.
Previously, the successful party could only claim expenses to a maximum of £75. The new provisions allow the Sheriff to award up to £150 in expenses for claims worth £200 - £1,500. For claims over £1,500, the Sheriff will be able to award up to 10% of the value of the claim by way of expenses.
This increase is to be welcomed because often although the value of a claim is not particularly high, complex legal issues can arise. The time and expense involved in preparing for a case can easily exceed the present £75 limit.
The Summary Cause Rules will change so that the upper limit will increase from £1,500 to £5,000. The position in relation to Summary Cause expenses is yet to be confirmed.
The Small Claims and, to an extent, the Summary Cause procedure, were introduced to make it easier for individuals and businesses to pursue claims for payment without a solicitor.
The aim of the increases in limits is to improve access to faster,simpler and cheaper procedures. It also recognises that many goods and services which consumers routinely buy nowadays cost much more than £750.
For more information please click here.
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Focus: Work at Height Regulations 2005
Falling from a height remains one of Britain’s most common types of accident accounting for 19% of fatal injuries to workers in 2006/07. The HSE has again urged employers to ensure that they have safe systems in place.
Background
The Regulations came into force on 6 April 2005 and apply to all work at height where there is a risk of a fall that is liable to cause personal injury.
How is “work at height” defined?
A place is “at height” if a person could be injured falling from it, even if it is at, or below, ground level.
“Work” includes moving around at a place of work. For example, an employee in a factory who has to use a stepladder is working at height.
Who is responsible?
Employers, the self-employed, and any person who controls the work of others e.g. facilities managers. Amendments to the Regulations came into force on 6 April 2007. These apply to people who provide instruction or leadership to one or more people engaged in caving or climbing by way of sport, recreation, team building or similar activities.
Employees, and those working under guidance, have a duty to report any safety hazard to the person responsible. They must use equipment properly and follow any training and instructions.
The overriding principle is that an employer must do all that is reasonably practicable to preventanyone falling.
The Regulations set out a straightforward regime for managing and selecting suitable equipment.
Those under an obligation must:-
- only carry out work at height when it cannot be done any other way;
- use work equipment or other measures to prevent falls where they cannot avoid working at height;
- where the risk of a fall cannot be removed, use work equipment or other measures to minimise the distance and consequences of a fall, if one occurs.
The employer must ensure that:-
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all work at height is properly planned and organised;
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all work at height takes account of weather conditions that could endanger health and safety;
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those involved in work at height are trained and competent;
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equipment for work at height is appropriately inspected;
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the risks from fragile surfaces and falling objects are properly controlled.
There are some exemptions from the Regulations, including shipping, off-shore installation and docks.
The HSE has issued a brief guide to the regulations which can be downloaded from its website by clicking here.
Case Study
In November 2007, an English animal feed manufacturing company was fined £2500 and ordered to pay costs of over £1500 after pleading guilty to breaching Section 2 (1) of the Health & Safety At Work Etc Act 1974.
An employee fell 8 metres through a skylight on the company’s fragile roof and broke his arm after attempting to repair a gutter with a colleague.
An HSE Inspector was quoted as saying: “If your company does not have the specialist knowledge for this type of work, it should not be attempted. Repairing a fragile roof is potentially high risk. Before the work starts, ensure that a competent person assesses the roof using a safe system of work. All those carrying out the repair work must be suitably trained and supervised and follow a method of work based on a risk assessment.”
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Corporate Manslaughter & Corporate Homicide Act 2007 – Are You Ready?
This Act creates a new offence of corporate homicide in Scotland (corporate manslaughter in the rest of the UK). An organisation is guilty of an offence if the way that its activities are managed or organised causes a person's death and amounts to a gross breach of a relevant duty of care owed by the organisation to the deceased. The Act states that senior management involvement must be both present and must be a substantial element of the breach of duty of care.
With the Act coming into force this April, more attention is likely to be focused on the obligations of directors in relation to health and safety matters, particularly in light of the terms of the Companies Act 2006 which is gradually being brought into force. It is expected that all of its provisions will be applicable by October 2009. This is the first statute to set out a list of duties which directors owe to companies. This includes the duty to exercise reasonable care, skill and judgment.
For further information and guidance is available from The Ministry of justice and IOD Corporate Manslaughter & Corporate Homicide Act.
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Stress at Work – an Increase in Claims?
Stress is now the second greatest cause of occupational illness in the UK. In recent years, there has been a marked increase in claims against employers.
A number of cases have failed before reaching Proof (trial) because the Court has deemed the claimant’s case irrelevant. Claimants struggle when trying to establish that it was reasonably foreseeable that the conditions in which they worked would cause a recognisable psychiatric condition.
In a recent case, the claimant was able to overcome this hurdle. In Fletcher v Argyll & Bute Council (26 October 2007), a school teacher raised an action for damages against her employers. She maintained that she had suffered psychiatric injury as a result of discipline problems with pupils. The Judge decided that Mrs Fletcher had presented a sufficiently relevant case on the issue of foreseeability. She had also set out what preventative steps her employers should have taken. It could not be said that she was bound to fail to establish that her employers were in breach of their
duty of care to her.
Mrs Fletcher claimed that the behaviour of the class had affected her emotional stability. For nine months, senior members of staff at the school were aware that the problem was not improving. Both she and her husband had told the Head Teacher that the difficulties she was facing were making her ill and that she could not cope.
A Proof (trial) date is awaited.
In contrast, in the case of Robertson v The Scottish Ministers (22nd November 2007), the claimant’s case based on the argument that her employers were in breach of their common law duty of care towards her was thrown out after legal argument. Her claim followed alleged bullying and harassment while she was working as a prison guard. The judge decided that Mrs Robertson had not offered to prove that her employers knew or ought to have known that she was at risk of developing a recognised psychiatric condition. There was no suggestion that her employers had any reason to suspect that she might be susceptible to serious problems with her mental health.
Mrs Robertson was allowed to continue with her case on other grounds, however.
To find out how to identify and tackle stress related issues in your workplace please click here to go to the HSE website.
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Slight Fall in Work Related Deaths in Scotland
The Health & Safety Commission’s Publication – Statistics for Fatal Injuries 2006/2007 indicates that the number of fatally injured workers, which covers both employees and those who are self employed, in Scotland fell slightly from 32 in the previous year to 31. Of the various sectors, the most deaths were in the construction industry (10).
For more information click here.
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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 Newsletter - Winter 2008