Legal 1.2 Flashcards
Statute Law - What is an Act?
- Primary Legislation
- Passed by House of Parliament
- H&SAW 1974
Statute Law - What is a regulation?
- Made under act (H&SAW 1974)
- Passed by Secretary of State
- Breaches = enforcement notices/fines/imprisonment
- More detail than Act
- MHASAW 1999
Statute Law - What is an approved code of conduct? ACOPs
- Produced by HSE with consent from Secretary of State
- Gives guidance on how to comply
- one for each reg
- Not legally binding
Statute Law - Guidance, what is this?
- Official notes by HSE
- Give greater breadth of topic covered
- No legal standing
Statute Law - Define - Absolute Duties
- Highest level
- MUST and SHALL
- Complied with irrespective of cost
Statute Law - Define - Practicable
- If technically feasible then should be done
* Machine guarding
Statute Law - Define - Reasonably Practicable
- Balances risk and cost
* If cost outweighs risk then duty is discharged unless deemed high risk (injury/death)
Define Statute Law
- Written down
- Passed by Parliament
- Acts and regs
Define common law
- Established through previous civil cases (Precedents)
- Can be passed down over time
- Applies to civil and criminal law
Define Civil Law
- Against individual
- 3 years max to be brought to court
- Balance of probability
- Judge
- Compensation
- Based on precedent
- County Court
- Based on Common Law
- Tort - to right a civil wrong
Define Criminal Law
- Crime against state
- Proven beyond all reasonable doubt
- Jury
- Summary offences - Magistrates - 6 months imprisonment & unlimited fine
- Indictable offences - Crown Court - 2 years imprisonment & unlimited fine
- Based on Statute Law
Explain the role of HSE
- Advises secretary of state in creation/amendment of regulations
- Provides info and guidance
- Enforcement - directly regulated industries IE hospitals, construction
Explain the role of the Local Authority in H&S
- Provide enforcement for none HSE regulated industries IE childcare, hotels, restaurants
What are fees for intervention and why are they charged?
- Fees for intervention are fines imposed by HSE on regulated parties who have committed a material breach of H&S law.
- They are charged to recoup costs to move this away from public funding and placed back onto the company who committed the offence
What powers do inspectors have?
EMP SIAA
- Entry
- Measurement
- Photos
- Samples
- Investigate
- Access
- Assistance
Why would an improvement notice be given, what would happen if this was not done?
- It would be noticed if there was a breach of statutory provisions IE No Documents, but there is no imminent risk/harm
- If not complied with this may result in a prohibition notice or prosecution
What is a Prohibition notice?
- A prohibition notice is a serious failing where there is serious risk/harm. This prevents work continuing
- Failure to comply is a criminal offence
Where would an improvement/prohibition notice be appealed and what would occur?
- Appeals are heard at an employment tribunal
- Improvement notice is suspended until appeal is heard
- Prohibition notice remains in place until hearing
What are criminal law defences for individuals, employers and the accused?
- Individuals - prove all reasonable care was taken
- Employers - Prove all reasonably foreseeable precautions were done
- Accused - Prove it was not reasonably/practicable to do more
What is a Tort of Negligence?
- Civil Wrong
* Gives affected party chance to seek compensation for wrong doing
What is the duty of care - Neighbour?
- Donoghue V Stevenson 1932
- Ginger beer - snail - unable to sue manufacturer for breach of contract as contract was with shop keeper who sold beer.
- If DUTY OF CARE doesn’t already exist one is owed to anyone that could be affected by act/omissions
What is the criteria to bring a case of Tort of Negligence to court?
- Is there a duty of care owed?
- Were any duties breached?
- Any injury/damage sustained?
What would be the defences for a Tort of Negligence?
- Duty of care was not owed - IE 3rd party not employed
- Duty of care not breached - Accident was not reasonably foreseeable - there was no other way to work
- No direct injury/damage -IE injury was caused by sport
- Denial of facts - it never happened
What is Contributory Negligence?
- Defence
- Defendant takes partial responsibility
- identifies failings meaning claimants award is reduced or denied
