Lecture 2 - Law & Prosecutions Flashcards
What are the 6 features of criminal law
- Enforced by the State to punish transgressors
- Transgressors are prosecuted by HSE, Local Authority or Fire Authority
- Individual found guilty or not guilty
- Courts can fine or imprison
- Proof needs to be “Beyond Reasonable Doubt”
- Cannot defer or insure against fines or imprisonment
What are the 7 features of civil law
- Deal with disputes •
- Redress a civil wrong•
- Both Individual and organisations can be sued
- Both can be liable or not liable
- Courts can award costs and compensation
- Proof is based on Balance of Probabilities”
- Employers must insure against civil actions by having liability insurance
What are the 4 H+S common law based concepts
Practicable
Reasonably practicable
Negligence
Duty of care
The employer has an _____ duty of care to each of their _____. These duties cannot be “______” to another person or ______ by signage etc.
Enduring
Employees
Assigned
Negated
What are the 6 things an employer must provide in terms of ‘Duty of care’
Safe place of work Safe access and egress Safe equipment Safe system of work Safe & competent fellow workers Adequate training and supervision
What are the two employees rights and duties?
Have a right to a safe work place
Have a duty to take reasonable care in and of their workplace
What do H+S prosecutions come from in terms of negligence
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.
What is Vicarious Liability?
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.
What are the three levels of statutory duty?
Absolute
Practicable
Reasonably Practicable
What does ABSOLUTE statutory duty mean?
The employer MUST comply with the law
Safety policy is an example of this
What does PRACTICABLE statutory duty mean?
The employer must comply if it is technically possible without regard to difficulty, inconvenience or cost.
What does REASONABLY PRACTICABLE statutory duty mean?
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.
What is the caveat of the REASONABLY PRACTICABLE statutory duty defence?
that the cost/time and effort must “grossly outweigh” the risk of injury to be successful.
What are 7 other defences against prosecutions of negligence?
- There was no duty of care
- No breach of duty of care
- The breach of care did not result in the claimed injury, disease or loss
- Partial defences
- Contributory negligence – where the employee contributed to the negligent act.
- Where the risk was willingly accepted by the employee
- Act of God
HSW act 1974 -
Health, Safety and Welfare in connection with WORK, and CONTROL of DANGEROUS SUBSTANCES and CERTAIN EMISSIONS into the Atmosphere
What does ACOP stand for
Approved Codes Of Practice
What are 3 features of ACOP’s
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.
What are the 4 main functions of regulations?
1) State the law
2) Breaches are a criminal offence
3) DEscribe the minimum H+S standard required
4) Apply to all occupations
What are the 5 functions of Guidance?
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
Employers have a ____ _____ to ensure so far as is _____ ______ the ____, _____ and _____ at work of all their ______
General Duty
Reasonably Practicable
Health, Safety, Welfare
Employees
6 other people excluding Employees that Employers could owe a duty of care to?
1) Contractors
2) General public
3) Any visitors to site
4) Students
5) Young people
6) Patients
Enforcement Inspectors Can … (8)
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
What two powers can Inspectors enforce?
1) Issue improvement and prohibition notices and possibly, a formal caution
2) Initiate prosecutions
What is an improvement notice?
A specific breach of law, appeal to employment tribunal: action deferred > hearing date
What is a Prohibition notice?
Immediate halt to activity that could lead to serious injury > appeal to employment tribunal: action not suspended
Summary Offences (magistrates court) What is the maximum fine, prison sentence and punishment?
£20,000
6 Months imprisonment
Up to 5 years disqualified for convicted director
Indictable offences?
3 punishments
Unlimited fines
Up to 2 years imprisonment
Up to 15 years disqualification for convicted directors
