Lecture 2 - Law & Prosecutions

Question 1

What are the 6 features of criminal law

Answer 1

1. Enforced by the State to punish transgressors
2. Transgressors are prosecuted by HSE, Local Authority or Fire Authority
3. Individual found guilty or not guilty
4. Courts can fine or imprison
5. Proof needs to be “Beyond Reasonable Doubt”
6. Cannot defer or insure against fines or imprisonment

Question 2

What are the 7 features of civil law

Answer 2

1. Deal with disputes •
2. Redress a civil wrong•
3. Both Individual and organisations can be sued
4. Both can be liable or not liable
5. Courts can award costs and compensation
6. Proof is based on Balance of Probabilities”
7. Employers must insure against civil actions by having liability insurance

Question 3

What are the 4 H+S common law based concepts

Answer 3

Practicable
Reasonably practicable
Negligence
Duty of care

Question 4

The employer has an _____ duty of care to each of their _____. These duties cannot be “______” to another person or ______ by signage etc.

Answer 4

Enduring
Employees
Assigned
Negated

Question 5

What are the 6 things an employer must provide in terms of ‘Duty of care’

Answer 5

Safe place of work
Safe access and egress
Safe equipment
Safe system of work
Safe & competent fellow workers
Adequate training and supervision

Question 6

What are the two employees rights and duties?

Answer 6

Have a right to a safe work place

Have a duty to take reasonable care in and of their workplace

Question 7

What do H+S prosecutions come from in terms of negligence

Answer 7

The lack of reasonable care resulting in injury, damage or loss.
Acts or omissions that did or could result in injury that could have been reasonably foreseen.

Question 8

What is Vicarious Liability?

Answer 8

If an employees is acting in his normal course of his employments during the alleged incident the defence of the action is transferred to his employer.

Question 9

What are the three levels of statutory duty?

Answer 9

Absolute
Practicable
Reasonably Practicable

Question 10

What does ABSOLUTE statutory duty mean?

Answer 10

The employer MUST comply with the law

Safety policy is an example of this

Question 11

What does PRACTICABLE statutory duty mean?

Answer 11

The employer must comply if it is technically possible without regard to difficulty, inconvenience or cost.

Question 12

What does REASONABLY PRACTICABLE statutory duty mean?

Answer 12

If the risk of injury is very small compared to the cost, time and or effort required to reduce the risk then no action need be taken.

Question 13

What is the caveat of the REASONABLY PRACTICABLE statutory duty defence?

Answer 13

that the cost/time and effort must “grossly outweigh” the risk of injury to be successful.

Question 14

What are 7 other defences against prosecutions of negligence?

Answer 14

1. There was no duty of care
2. No breach of duty of care
3. The breach of care did not result in the claimed injury, disease or loss
4. Partial defences
5. Contributory negligence – where the employee contributed to the negligent act.
6. Where the risk was willingly accepted by the employee
7. Act of God

Question 15

HSW act 1974 -

Answer 15

Health, Safety and Welfare in connection with WORK, and CONTROL of DANGEROUS SUBSTANCES and CERTAIN EMISSIONS into the Atmosphere

Question 16

What does ACOP stand for

Answer 16

Approved Codes Of Practice

Question 17

What are 3 features of ACOP’s

Answer 17

1) Interpretations of regulations giving more information of how standards may be achieved.
2) Shows A way of complying but may be other which can be proved to be more effective.
3) But others may be quoted in an enforcement notice and then become binding.

Question 18

What are the 4 main functions of regulations?

Answer 18

1) State the law
2) Breaches are a criminal offence
3) DEscribe the minimum H+S standard required
4) Apply to all occupations

Question 19

What are the 5 functions of Guidance?

Answer 19

1) Can be either legal or of the best practice type and often published by HSE.
2) NOT legally binding
3) Give more information and advice than COP’s
4) Can be part of A British Standard
5) Could be published by trade or professional organisations

Question 20

Employers have a ____ _____ to ensure so far as is _____ ______ the ____, _____ and _____ at work of all their ______

Answer 20

General Duty
Reasonably Practicable
Health, Safety, Welfare
Employees

Question 21

6 other people excluding Employees that Employers could owe a duty of care to?

Answer 21

1) Contractors
2) General public
3) Any visitors to site
4) Students
5) Young people
6) Patients

Question 22

Enforcement Inspectors Can … (8)

Answer 22

1) Enter premises at any reasonable time
2) Examine investigate any articles or premises and to have them left undisturbed
3) Access all records & appropriate documents
4) Take samples
5) Take photographs
6) Dismantle and remove equipment
7) Remove or render harmless any substances
8) Take statements

Question 23

What two powers can Inspectors enforce?

Answer 23

1) Issue improvement and prohibition notices and possibly, a formal caution
2) Initiate prosecutions

Question 24

What is an improvement notice?

Answer 24

A specific breach of law, appeal to employment tribunal: action deferred > hearing date

Question 25

What is a Prohibition notice?

Answer 25

Immediate halt to activity that could lead to serious injury > appeal to employment tribunal: action not suspended

Question 26

Summary Offences (magistrates court)
What is the maximum fine, prison sentence and punishment?

Answer 26

£20,000
6 Months imprisonment
Up to 5 years disqualified for convicted director

Question 27

Indictable offences?

3 punishments

Answer 27

Unlimited fines
Up to 2 years imprisonment
Up to 15 years disqualification for convicted directors