Moral Duty of care morally acceptable for an

Moral – Duty of care, morally acceptable for an organisation to seek to reduce accidents and injuries. Not acceptable to put an employee at risk. Legal – Having a good H&S system in place ensures compliance and makes notices, enforcements, or prosecutions less likely. Controlling risks helps prevent injuries which could leave to compensation claims. Financial – Helps reduce costs such as repair or replacement, additional labour, or costs associated with retraining of job advertising. Less staff turnover, improved morale, productivity, less stress, lower insurances and less costs for compensation, and increased reputation. Civil Law: Civil law is concerned with individuals. Civil law is based on decisions made by judges (Common Law – Judicial Precedent) and aims to award compensation to restore the victim to the same position they were prior to the act. Civil action can be brought by someone who feels a wrong doing has been brought against them. It is based on the law of torts. A Tort is a civil wrong doing and may involve common or statute law. Claims need to be brought within 3 years of the wrong doing. This is based on a balance of probabilities. Statute barred means no longer legally enforceable. Direct Costs: Immediate cost of accident / damage, clean up and loss of worker. Indirect Costs: Replacement labour, loss of sales, low morale, staff leaving. Insured Costs: Employer’s liability insurance, minimum cover 5 million, insures against ill health or injury. Uninsured costs: product or material damage, lost production time, legal costs, investigation time & administration, first aiders time, additional recruitment and training, fines, loss of expertise, increased insurance, bad publicity. Criminal Law: Criminal law is concerned with written law passed by parliament. It is where a crime has been committed by breaching a law. Punishment can consist of fines or imprisonment and is predominantly based on statute law. Statute law is written down in forms of acts, regulations etc and MUST be complied with. Criminal cases can be heard in magistrates court, and cases heard here are Summary offences. Fines are limited to 20, 000 per breach. Serious cases are heard in the Crown Court. These are indictable offences (formal accusation of a crime) with unlimited fines. Offences are triable, or triable either way (can elect between a judge a jury and summary trial in a magistrates court). H&S cases triable ‘either way’ are most often used in H&S prosecutions on the principle of ‘beyond all reasonable doubt’. Prison sentences are 12 months for magistrates, 2 years for Crown Court.

Direct / Indirect Insured / Uninsured Costs to a Business Criminal Law Moral, Legal and Financial reasons for Managing Health & Safety Civil Law

Enforcement of Health & Safety: Local Authorities – Enforcement for industries not directly regulated by the HSE, which includes: • Retail • Office • Catering • Launderette • Churches and places of worship • Car parking facilities • Provision of childcare Enforcement of Health & Safety Executive – Advises secretary of state in the creation and amendment of regulations, provides guidance and information. Enforcement for directly regulated industries which includes: • Construction • Mine or quarry work • Fairgrounds • Agriculture • Broadcasting and filming • Railways (in conjunction with Office of Railways Regulation) Enforcement of health & Safety: Fire Authorities – Along with the Regulatory Reform (Fire Safety) Order 2005, Fire inspectors have the same rights as HSE and LA inspectors but for fire related incidents only. Environment Agency – Enforces environmental legislation such as water contamination, noise, land air pollution and provides guidance for industry best practice. Insurance Companies – Insurance companies set out requirements that are expected such as regular inspections on lifting equipment. Crown Prosecution Service – They are responsible for prosecuting criminal cases that are investigated by the police in England Wales.

Enforcement of Health & Safety Executive Enforcement of Health & Safety Other Authorities Court Hierarchy Enforcement of Health & Safety Local Authorities

Powers of Inspectors: • Enter a premises at any reasonable time, accompanied by a police officer, if necessary. • Examine, investigate and require the premises to be left undisturbed. • Take samples, photographs and, if necessary, dismantle ad remove equipment or substances. • Require the production of booked or other relevant documents and information. • Seize, destroy or render harmless any substance or article. • Issue enforcement notices and initiate prosecutions. Enforcement Notices There are two types of enforcement notice. They are: • Improvement Notice – Issued if there is a breach of relevant statutory duty provisions (or there is likely to be a repeat), but no imminent harm will be caused. The notice will require the issue to be resolved over a given period of time. • Prohibition Notice – Issued when there is likely to be a risk of serious or imminent danger. There doesn’t have to be a breach of legislation (although it is usually the case). The notice will prevent the use of equipment or premises. Failure to comply with this type of notice is a criminal offence. An organisation can appeal within 21 days of receiving a notice. An improvement notice will be suspended during a case, whereas a prohibition notice will remain in force. Appeal are made on the grounds of: Incorrect interpretation of the regulations, inspector has exceeded powers, breach of law admitted but claim insignificant, breach was admitted but guidance to rectify not possible or practicable. Criminal Law Defences: In order to form a defence under criminal law, the following points have to be considered: • Individuals must prove they took all reasonable care. • Employers must prove they took all reasonable foreseeable precautions. • Due diligence must have been exercised. • The accused must prove that it was not reasonable or reasonably practicable to do more. Civil Law Liabilities: Civil courts consist of a county court and high court. Persons seeking retribution are the ‘Claimant’ and the accused is the ‘Defendant’. The claimant has to site a tort (civil wrong doing). Examples are deformation, nuisance, breach of statutory duty or negligence. In regards to health & safety, this can be a tort of negligence or a tort of breach of statutory duty. Neighbour Principle: The principle was established in the case of Donoghue vs Stevenson (1932), also known as the ‘Paisley Snail’ or the ‘Snail in the bottle case. This occurred when Mrs Donoghue was drinking a ginger beer in a café when she became ill from it. It was noticed by the café owner that there was a snail in the bottle. Mrs Donoghue sued the owner and the neighbour principle was established. ‘Where a duty of care does not exist, we shall owe a reasonable duty of care to our neighbours’.

Enforcement Notices Civil Law Liabilities Powers of Inspectors Criminal Law Defences

Employers Common Law Duty This is based on the precedent set by a judges decisions. This was established in 1938 by Wilson Clyde & Coal Co vs English. Basic Facts: Mr English (a minor) was injured by being crushed under haulage plant. The collier owner claimed the responsibility was with his agent working on behalf of the company. It was decided that a duty rests on the employer as they are responsible for the agents. It was therefore ruled under common law that an employer has a duty to provide for his employees: • A safe place of work (including access and egress) • Provide safe plant and equipment • Provide safe systems of work • Provide adequate levels of supervision, training and instruction • Competent fellow employees These responsibilities cannot be delegated to anyone else. Tort of Negligence A tort of negligence gives the affected party change to seek compensation for a wrong doing. To bring a case of negligence, specific criteria have to be met: • A Duty of care was owed. • The duty of care was breached • As a direct result of the breach, the claimant suffered harm or injury. The defendant has an opportunity to respond and will need to reply on one or more of the following: • Duty of care was NOT owed (e. g. defendant was a third party / employee not acting in course of employment) • Breach of care did NOT directly result in harm. • Denial of facts. • Contributory Negligence (partial defence – involves defendant taking a portion of the blame. Defendant needs to identify their own failures and apportion blame to a third party of claimant, which can reduce compensation or dismiss it altogether. • Claimant voluntarily accepted the risk ‘Volenti non fit injuria’. • Act of God. Tort of Breach of Statutory Duty This relates to CIVIL and not criminal law. It uses statute breached as a basis for compensation. Tests to be established are: • The defendant was in breach of statue. • The breach caused an injury • The claimant was the class of person the statute was designed to protect. • The type of injury was one the statute was designed to prevent. Defences include: • Statute does not allow a civil claim – statute barred • There was no breach in duty • Injured person not covered by the duty • Harm not the type the duty was designed to prevent. • No causal connection between the breach and the loss. Double Barrelled Actions This is where a claimant can claim under both tort of negligence and tort of breach of statutory duty, but only one claim can succeed and only one award of compensation can be made. Vicarious Liability An employer can be held vicariously liable for an unauthorised negligent act by one of his employees. If an employee commits an offence at work under the direction of the employer, the employer is wholly responsible, even if the employee was forbidden to do something. The employee however, still has a duty to take reasonable care of themselves. Compensation There are two categories of compensation: General – For non monetary losses e. g. pain and suffering, and Special – for financial losses. E. g. medical costs, loss of earnings. Employment Tribunals consist of a legally qualified chairperson, and 2 lay members. They deal mainly with victimisation and discrimination cases, but also deal with: Appeals again enforcement notices, complaints form H&S reps, dismissals following a breach, claims for detrimental treatment.

Tort of Negligence Double Barrelled Actions / Vicarious Liability / Compensation / Employment Tribunals Employers Common Law Duty Tort of Breach Statutory Duty

Hierarchy of Statute Law Acts are known as primary legislation. Passed by houses of parliament. Acts lay down general duties and make provisions for regulations and approved codes of practice. Regulations Delegated legislation made under the health & safety at work act 1974, by the secretary of state often for EU directives. Consultation is taken with the HSE and other interested parties. Breaches under the regulations can lead to enforcement notices. Approved Codes of Practice (ACOP’s) Produced by the HSE with consent from secretary of state. Help to interpret how to comply with legislation. One ACOP per specific regulation. Not legally binding but can be used as evidence in court. ACOP’s have ‘quasi legal’ status – meaning an obligation invoked by law in the absence of an agreement. ACOP’s are easier to amend than legislation, so guidance can be given to industry more expeditiously. Guidance HSE guidance notes are there to give a greater understanding of a certain regulation or a requirement (best practice). No legal standing and cannot be used in court. Types of Statutory Duty Absolute Highest level of duty. Has MUST or SHALL. Duties MUST be complied with. There are not many in regards to H&S but are in the requirements to have a H&S policy and risk assessments. Cost cannot be taken into account. It is absolute, so must be complied with irrespective of cost. Qualified Practicable – Duties qualified by the word ‘practicable’. Cost not a determining factor. If technically feasible, it should be done. Reasonable Practicable – This is the lowest level of duty. Allows for a balance of risk versus cost. If costs outweigh the risks, duty is discharged. If risk is too high, cost is irrelevant. Construction (Design and Management) Regulations 2007 Part 1 – Introduction Part 2 – General Management Duties applying to all construction projects Part 3 – Additional duties where projects are notifiable Part 4 – Worksite health & safety requirements Part 5 – General Most duties are on the clients, designers and contractors who have duties regardless of whether the project is notifiable. If notifiable, other involved are: Principal contractors, CDM coordinator, notification via the F 10 form to the HSE, Construction Phase Plan and the Health & Safety file. Client Duties Check the competence and resources of those they appoint, allow sufficient time and resource, provide key information to designers and contractors, ensure everyone cooperates and coordinates with each other, ensure adequate welfare facilities are in place, ensure workplaces are designed correctly, ensure suitable management arrangements are in place. For a notifiable project, additional duties include: Appoint a CDM coordinator, provide CDM coordinator with relevant information, appoint a competent principal contractor, ensure the construction phase does not start until there adequate welfare facilities in place and there is a construction phase health and safety plan, retain and provide access to the health and safety file. If a client does not appoint a CDM coordinator or principal contractor, they would be expected to carry out these duties as well as their duties as a client.

Types of Statutory Duty CDM Regulations Client Duties Hierarchy of Statute Law (Acts, Regulations, ACOPS) Construction (Design and Management) Regulations 2007 (Parts, Main Duties)

CDM Coordinator Duties • CDM coordinators are expected to have a positive and enabling role. • Brevity and clarity is the key. • Discourage unproductive paper based systems and unnecessary things like designer risk assessments. • Support the client to help them comply with their duties. • Advise client about selecting competent contractors and designers. • Coordinate arrangements for the health and safety planning and design work. • Notify the HSE of the project via the F 10 form. • Advise on the suitability of the initial construction phase plan • Prepare a health and safety file for the client. Designer Duties • Ensure the client is aware of their duties. • Make sure they are competent for the project they are doing. • Coordinate their work with others. • Cooperate with the CDM coordinator and others. • Provide information for the health and safety file. • Must avoid foreseeable risks AFARP (eliminate risks, reduce risks from any remaining hazards, give collective risk reduction measures). • Take account of the workplace regulations when designing a workplace. • Provide information to assist the clients, other designers and contractors. • Can provide information via notes on drawings, written information on the design, suggested sequence of construction if not obvious. Principal Contractor Duties • Make sure client is aware of their duties. • Ensure a CDM coordinator has been appointed and the project has been notified. • Ensure appointees are competent. • Provide information to contractors. • Ensuring construction phase plan is prepared and implemented. • Providing welfare facilities. • Giving direction to contractors. • Providing information for the health and safety file. • Preventing unauthorised access. • Liaise with others on the project. • Provide suitable induction, information and training to workers. Contractor Duties • Check client is aware of their duties. • Do not start the work until pre-construction phase information has been received. • Plan, manage and monitor their own work. • Inform any contractor they engage about minimum time allowed for planning and preparation. • Report any hazardous information. • Cooperate with others on the project. • Work in accordance with the construction phase plan. • Provide information for the health and safety file.

CDM Regulations Designer Duties CDM Regulations Contractor Duties CDM Regulations CDM Coordinator Duties CDM Regulations Principal Contractor Duties

Part 4 CDM Regulations Part four specifies duties to control health and safety risks. It applies to all construction sites, and places duties on every contractor and every other person who controls construction work. It covers: Safe place of work, good order and site security, stability of structures, demolition and dismantling, explosives, excavations, reports of inspections, traffic routes, prevention of drowning, cofferdams and caissons, fire, emergency procedures, temperature and lighting. Competence for CDM • Must have sufficient knowledge of the tasks and risks • Have experience and ability to carry out the job. • Take reasonable care that people appointed are competent. • Not accept an appointment unless they are competent. Corporate competency is assessed by a two stage process. • An assessment of company’s organisation and arrangements of H&S. • An assessment of company’s experience and track record. This needs to meet criteria set out in the ACOP appendix four (Industry and HSE agreed). Accreditation schemes like CHAS and National Britannia Safe Contractor have core criteria which meets industry standards and is assessed as an individual by a two stage process. • Assessment of knowledge, training records and qualifications, including basic understanding of site risks. • Previous experience in the type of work being asked for. Pre-Construction Information • Description of project • Client considerations and management requirements • Environmental restrictions and existing onsite risks. • Significant design and construction hazards • H&S file – description of format and conditions relating to the content. Construction Phase H&S Plan. • Description of the project / Management of the work. • Arrangements for controlling significant site risks. • H&S file / Site security / Site induction • On site training / Welfare facilities and fist aid. • Accident and incident reporting and investigation • Production and approval of risk assessment and safe systems of work documents. • Site Rules / Fire and emergency procedures. The plan should also define arrangements for controlling risks that include: Access / Egress, delivery and removal of materials and waste, services, adjacent land use, preventing falls, work with or near fragile materials, control of listing operations, maintenance of plant and equipment, excavations, work on wells, underground caverns or tunnels, diving, caisson or compressed air, work on or near water. Health & Safety File • Description of work • Residual hazards and how they have been dealt with. • Key structural principle ad safe working loads for floors and roofs • Hazardous materials used. • Information regarding removal or dismantling of plant / equipment • H&S info about equipment provided for cleaning and maintaining structure. • Nature, location and marking of services • Information and drawings of the structure and plant / equipment

CDM Regulations Competence for CDM Regulations Contractor Duties CDM Regulations Part 4 CDM Regulations Pre-Construction / Construction Phase H&S Plan