Unit A 2nd 100 Flashcards
Legal actions that might be available to the injured person in a claim for compensation, and the tests that would have to be made for the actions to succeed
Legal Actions = “double-barrelled action” civil claim involving a tort of negligence AND breach of statutory duty.
Negligence:
•Duty of care owed by company to employee
•Accident was foreseeable (managers aware of bad practice)
•DoC was breached
•Breach of DoC led to injury; (must refer to scenario)
•[Case law: Wilsons & Clyde Coal v English (1938);
•General Cleaning Contractors v Christmas (1953)]
Meaning of ‘general’ and ‘special’ damages
General damages: Represent the types of damages that can’t easily be assigned a monetary value, such as pain and suffering, loss of consortium and emotional trauma. There is no evidence, such as bills or receipts, of a specific dollar amount, but they are losses for which the plaintiff deserves compensation nonetheless.
Special damages: Can be assigned a specific monetary value because these are compensation for the expenses you incurred as a result of the accident. Special damages include things like medical bills and lost wages. These are your “out of pocket” Receipt’s
What may be awarded in the event of a successful claim AND give examples of the factors that are considered in calculating their value
General Factors such as:
• Pain and suffering and loss of amenity - calculated by the severity of the injury itself and a system of tariffs has evolved to enable the court to apply some consistency to the loss of a limb or sight.
• Other factors such as pain and suffering arising from treatment or operations
• Mental suffering based on the realisation of a shortened life expectancy or a reduction in the ability to enjoy life
• Loss of amenity: the injured person , as a result of the injury, is no longer able to enjoy their previous lifestyle e.g. impairment of any of the physical senses or abilities, impairment of sexual activity, inability to pursue sports pastimes or hobbies to the same degree as that enjoyed prior to the accident and any future earnings
Special Factors such as:
• Damage to belongings, legal expenses, medical expenses including the cost of a carer and modifications to home; pre-trial loss of earnings.
Unsafe practice at work, safe system in place, workers NOT able to understand safe system, but do not inform employer, it’s the Norm for the unsafe practice to take place
Which breaches might apply
HSWA 1974:
•Section 2 (1) Ensure SFAIRP, the health, safety and welfare at work of all his employees.
•Section 2 (2) – Safe plant and systems of work, safe use, handling, storage and transport of articles and substances, IIT&S, Safe place of work incl. access and egress, safe environment and adequate facilities and arrangements for their welfare at work.
•Section 7 Employee take reasonable care of himself and others and to co-operate with employer
•Section 36 - Offences due to fault of other person.
•Section 37 - offence committed with consent / connivance or attributable to neglect of Director, Manager, Secretary etc.
MHSWR 1999:
•Reg 3 – S&S Risk Assessment not carried out
•Reg 4 – Apply Principals of Prevention
•Reg 5- AE-POCMR
•Reg 7 – Provide H&S Assistance
•Reg 13 – Provide health and safety training
The principles of regulatory enforcement activities.
T.P.C.- T.A
Principles of good regulation:
- Targeted
- Proportionate
- Consistent
- Transparent and Accountable
A fatal accident has happened at a workplace. An enforcing agency inspector decides to make a visit to the site to take statements from witnesses, including the managing director. The managing director has refused the visit.
Outline possible courses of a Faction that the inspector may pursue.
- Section 20 HSWA, powers of inspectors could come into force and the manager could be prosecuted for failing to provide evidence
- Section 33 HSWA, Obstructing and inspector
Describe the statutory procedures for making regulations under the Health and Safety at Work etc Act 1974
Section 15 HSWA (Schedule 3) gives power to the Secretary of State (SoS) to make regulations under the Act
Regulations must involve regulating or prohibiting H&S matters identified in Schedule 3 HSWA
•Procedure for making regulations requires the SoS to consult HSE and other government departments - Health, Industry - and other interested parties (S50 HSWA) - LAs, TUC, Confederation of British Industry etc (consultative documents may be issued)
Alternatively, regulations may be proposed to SoS by HSE
•Proposed regulations must lie in House of Commons and House of Lords for 40 days
•If no objections / vote against they pass into law
•If opposed / vote against - do not pass into law (S82 negative resolution).
Outline the general types of health and safety related information that the employer should obtain from a contractor (prior to their appointment) to ensure that they are competent to safely design and install a lift.
- Information obtained from pre-selection audit/inspection of contractors
- Safety method statements/procedures/risk assessments
- Design-stage risk assessment processes/risk management processes
- Design quality control processes
- H & S policy and management arrangements
- other H & S performance measures (e.g. accident rates, inspection reports, EN, audit reports etc)
- Experience in the type of work
- Reputation/recent client experience/references
- Individual design personnel/qualifications/experience
- Qualifications/skills of workers for other installation work
- Procedure for selecting sub-contractors
- Membership of relevant professional bodies/quality standards
- Communication/consultation arrangements
- Advice from expert third party if needed
- Standards to be followed in design
- Insurance cover provided it relates to public or product liability
- Resources affecting safety
Section 6 HSWA
GENERAL DUTIES OF MANUFACTURERS ETC.
Any person who designs, manufactures, imports or supplies any article or substance for use at work has duties to ensure, SFAIRP:
- That the article or substance is safe and without risks to health when properly used;
- Any necessary research and testing or examination of the article or substance is properly undertaken; and that
- Adequate information is provided to ensure its safe use.
The section covers:
•New and second-hand articles designed for use at work (including fairground equipment), whether for sale of hire and their component parts;
•Items, which though capable of domestic use are designed to be used also at work (the safety of goods intended for domestic use is covered instead by Consumer Protection legislation); and
•All substances, including micro-organisms, which are supplied to workplaces.
Section 6 HSWA
S6(1) places duties on persons who design, manufacture, (import) or supply articles for use at work
S6(3) places duties on persons who install any article for use at work in premises where it is to be used by persons at work. In this case the contractor is a designer, supplier and installer of a passenger lift (which is an article for use at work).
Requirements -
•Ensure SFAIRP that the article is designed to be safe and without risks to health at all times when it is being set up, used, cleaned or maintained by a person at work
•Carry out / arrange for any testing and examination required to meet the above duty
•Ensure that persons supplied with the article of work equipment are provided with adequate information re its use etc (as above), dismantling or disposal
• Provide, SFAIRP, revised / updated information as necessary (e.g. Serious risk arising)
•Carry out / arrange for any research necessary to eliminate / minimise risk to health or safety SFAIRP
• ensure SFAIRP that nothing in the way the work equipment is installed makes it unsafe or a risk to health during use (etc)
R v Swan Hunter Shipbuilders and Another [1982]
Contractors working for SH on board HMS Glasgow were using oxy-acetylene cutting equipment. The oxygen hose / connection was leaking in a badly ventilated part of the ship so the atmosphere became oxygen enriched. An employee of Telemeter Installations, working alongside SH employees was preparing to do some arc welding. He struck the electric arc between welding rod and work piece and immediately, due to the atmosphere, a very intense fire broke out and eight men were killed. SH employees were provided with information on the fire risk connected with oxygen but the information was not provided to the employees of Telemeter or of the other contractors involved. Swan Hunter was prosecuted and fined £3000, they appealed. Conviction was upheld in the Court of Appeal (CoA).
The case of R v Swan Hunter Shipbuilders and Another [1982] arose from a serious fire during a ship repair at Swan
Hunter’s shipyard. Swan Hunter was convicted in the Court of Appeal.
Identify the specific provisions of HSWA under which Swan Hunter were prosecuted and in each case outline the reasons why the company was convicted
Clearly SH had a duty to ensure SFAIRP the H&S of its own employees by the provision of information. The CoA held that if, to ensure a SSW for SH’s own employees, it was necessary to provide the contractors / contractors’ employees with information about any particular dangers within its knowledge, then SH was under a duty to provide
such information, SFAIRP. SH also had a duty to those not in its employment.
Consequently SH were prosecuted under:
- HSWA S2(2)(a) for failing to provide a system of work that was, SFAIRP, safe and without risks to health
- HSWA S2(2)(c) for failing to provide such information as was necessary to ensure, SFAIRP, the H&S at work of their employees
- HSWA S3(1)for failing to conduct their undertaking in such a way as to ensure, SFAIRP, that persons not in their employment were not exposed to risks to their H&S
What is required for a successful claim for negligence?
Civil Law
- Duty of care owed
- Duty of care breached
- Breach caused harm
- Harm sustained was foreseeable
Meaning of Neighbour
Anyone effected by our acts or emissions
Meaning of Tort (Delict) Sco
A Civil Wrong
The Neighbour Principal
The General Duty of Care at Common Law
Donoghue v. Stevenson (1932)
Reasonable care must be taken to avoid acts or omissions which, with reasonable foresight, you would know would be likely to injure your neighbour.
The test whether someone is a neighbour in the legal sense, can be established if it can be reasonably foreseen that the act or omission may cause harm to them.
3 stage test to decide if a duty of care is owed?
Proximity – there should be sufficient proximity between the claimant and the defendant
Reasonableness – is it fair, just and reasonable to impose a duty?
Reasonable foreseeability – the harm suffered by the claimant must be reasonably foreseeable
Purpose of Civil Law and Civil Courts
To compensate for loss
What must be proven to establish a successful claim for a breach of statutory duty (civil action
- The statute must specifically confer a civil right of action for breach of a duty imposed by the statute
- The statutory duty was owed to that claimant
- The injury was a type contemplated by the statute
- The defendant must be in breach of that duty
- The breach of statutory duty must have caused the injury
Main defences to claims of breach of statutory duty (civil action)
- Statute-barred – section 47 HSWA requires there should be no civil right of action for breach of statutory duty, other than where such a right is specifically provided for
- No breach of duty – risk not foreseeable
- Duty was not owed
- Harm not covered by statute
- Breach did not cause loss
- Contributory negligence
Contributory Negligence
Davies v. Swan Motor Co (1949)
- Davies had been standing on steps at the side of a dust lorry, stood in a dangerous place. The lorry was travelling along a narrow road when a bus tried to pass the lorry. Davies was killed.
- Court decision was that Davies himself was one-fifth responsible for the damage because of his negligence being stood in a dangerous place.
- His damaged were reduced under the law reform (contributory negligence) act 1945
- Lack of reasonable care for your own safety HSWA section 7
Main types of damages injured parties may claim
- General damages – Pain and suffering, injury, loss of enjoyment of life. Not easily quantifiable, and depends on individual who suffers the loss. Compensation awarded is based on similar past events.
- Special damages – travel expenses to hospital, medical costs, loss of earnings etc. They are easily quantifiable.
Meaning of Damages
- The amount of money (compensation) awarded by a court to a successful claimant, in health and safety cases, for personal injury sustained by the claimant.
- Via Civil courts
Regulation 7 of the Management of Health and Safety at Work Regulations 1999 requires that employers appoint one or more competent persons to assist in complying with health and safety law.
Outline the legal requirements that the employer must satisfy when making such an appointment.
Covers the practitioner’s role
Key legal requirements of MHSW reg 7:
• H&S Assistant to be competent
• Appointment of one or more persons as necessary; arrangements for co-operation if 2 or more
• Numbers of H&S Assistants and time available to be sufficient for organisation’s size, risk and risk distribution.
• Information on health and safety issues to be provided to external appointees.
• Preference for internal appointment(s)
• Information on temporary workers; exemptions for partnerships where one partner is sufficiently competent
PDCA in Practice
• Plan – Conduct a status review of where we are at now and where we need to be
o What do we want to achieve
o Who’s responsible
o How to achieve the aims
o How to measure success
o Ways to measure performance
• Do – Identify current risk profile
o Assess the risks
o What can cause the most harm and how?
o Decide what to do to manage the risk
o Decide on the priorities and get to work on the biggest risks
o Organise activities to deliver the plan
o Involve workers & communicate (rota)
o Provide adequate resources, including more competent advice if required
• Check – Measure performance
o Assess how well risks are being controlled
o Investigate accident causes / near miss etc.
• Act – Review performance
o Learn from incidents – take action
o Review and revisit RAMS / SSOW
o Take action on inspections /
Potential sources of financial loss arising from accidents and incidents
- Direct costs – sick pay, repairs to damages plant and equipment, fines, and legal fees.
- Indirect Costs – lost orders, business interruption, loss of productivity
Explain why multi causality theories are used in accident investigation
• Would be used when there may be more than once cause to an accident, such as a major disaster and would help to consider organisational, cultural, managerial etc. causes that have contributed to the accident occurrence.
Proposed change in legislation / regulation and the use of socio-technical cost benefit analysis
• When proposal is put forward, it’s important to consider impact of the changes and give thought to the below:
o Description of industries effected
o Evaluation of the risks addressed
o Assessment of the benefits of the standard
o Determination of the technological feasibility
o Cost of compliance
o Economic feasibility
o Economic and other impacts associated with the changes
Limitations of causality theories in accident investigation
- More complex than single causality investigations
* They take longer to carry out _Recources
Explain why accident data should be recorded by an organisation
- Implied requirement by MHSWR, RIDDOR 2013 and social security regs. Legal Requirement
- To provide statistics for measuring achievement of objectives, performance and an input for review.
- To allow benchmarking against previous stats or external statistics.
- To identify accident trends by area or a particular employee
- Used to classify accidents by industry and information for identifying hazards for risk assessments
- Identification of any trends
- Evidence required by insurance companies regarding claims
- Social security regulations (claims and payments) reg 24/25
Incidence
Reflects the number of cases of a particular event in a population over a given time (e.g. year) and is often used to describe accidents as each accident is a ‘new’ event.
Prevalence
The total number of cases in particular population as a proportion of the total population. It is often used to represent ill-health statistics and reflects only new cases but also those who continue to suffer.
Accident Frequency Rate (AFR)
Number of work related injuries / total number of worker hours x 100,000
Accident Incidence Rate ( AIR)
Number of work related injuries / average number of persons employed x 1,000
It is a measure of the number of injuries per 1,000 employees measured over a defined period (e.g. year
Accident Severity Rate (ASR)
Total number of days lost / total number of hours worked x 1,000
It is a measure of the average number of days lost per 1,000 hours worked and gives a average number of days lost per accident.
Ill Health Prevalence Rate
Total number of ill health in the population / number of persons at risk x 100
The calculation gives the percentage of the population with the disease
Meaning of Accident incidence Rate
An accident incidence rate is the number of accidents multiplied by an agreed multiplier divided by the average number of persons employed
Meaning of Accident Frequency Rate
The accident frequency rate, the number of accidents multiplied by an agreed multiplier divided by the total number of person hours worked.
Meaning of Accident Severity Rate
The accident severity rate, is the number of days lost multiplied by an agreed multiplier divided by the number of person hours worked.
Possible reasons for line graph being highly variable with many sharp peaks and troughs from month to month.
And how could it be presented in a more useful way?
- In some months no accidents would have occurred thus giving a zero rating, while other months would have produced one or two accidents showing a much higher rate.
- The graph would have been more useful either by using a moving average or by showing a trend line.
