Unit A2 Questions Ollie Flashcards
Principles of Law
Explain the concept of absolute and qualified duties in relation to health and safety legislation
Where the duty is qualified by “shall” or “must” the duty has to be complied with, no matter what the Sacrifice is in terms of time, effort, money, Prescriptive Legislation
Every employer shall ensure that measures are taken in accordance with…… which are effective
‘Practicable’ means that there must be compliance with the duty as far as technical and practical feasibility allows; within current knowledge and invention; with no reference to cost; though not an absolute duty,
“practicable” is of a higher standard than that of ‘reasonably practicable.’ Adsett v. K&L Steelfounders and Engineers Ltd (1953)
‘Reasonably practicable’ requirements are those where a balance is made between risk and cost (in terms of money, time and trouble) and which are met when the cost of further control is grossly disproportionate to any reduction in risk. Controls in proportion to risk. Edwards v National Coal Board [1949]
Outline the influence and role of the European Union on UK health and safety legislation
(a) Outline the implications of a European Directive as it applies to Member States (2)
(b) Outline key functions of the European Commission (3)
(c) Outline reasons why the government cannot easily revoke health and safety regulations based on European Directives (5)
(a) EU Directives set out an objective that is required to be met in all Member States; each MS can implement the requirements in its own way - eg in the UK Directives are generally enacted in the form of regulations. In any case the requirements of the Directive are binding as to the result to be achieved (unless a derogation is obtained).
(b) The Commission represents and upholds the interests of the EU as a whole. It oversees and implements EU policies by:
•proposing new laws to Parliament and the Council
•managing the EU’s budget and allocating funding
•enforcing EU law (together with the Court of Justice)
•representing the EU internationally, for example, by negotiating agreements between the
EU and other countries
Instituting proceedings against Member States for violations of EU obligations
(c) UK government cannot easily revoke H&S regulations based on EU Directives because the Directives are formulated and established by the EU Parliament (in which the UK is represented) via a democratically agreed procedure involving voting (QMV). Once “issued” the Directive must be passed into domestic law and is binding on each MS - the individual MS cannot “cherry pick” Directives that are acceptable and revoke Directives that do not suit them.
Jan 20/18/10/07
a) Distinguish between:
(i) common law and statute law (4
(ii) civil law and criminal law (6)
(a) (i) Common law: case law, established in the Courts via judicial precedents as recorded in Law
Reports. Judges’ decisions - may be “binding” or “persuasive”. Lower Courts are obliged to follow binding precedents set by superior Courts.
Statute law: is a written, codified form of law passed by Parliament in the form of Acts of Parliament (HSWA), or Statutory Instruments (Regulations and Orders) setting out legal requirements and imposing duties and responsibilities. Statute law takes precedence over Common law.
(ii) Civil law: is concerned with resolving “torts” (civil wrongs) i.e. disputes between individual parties (e.g. employer and injured employee); concerned with redress - award of damages / compensation; takes place in County & High Courts; burden of proof = “on balance of probabilities”.
Criminal law: involves cases taken by the State (CPS / HSE etc); concerned with establishing innocence or guilt and the setting of penalties / punishment (fines / prison); takes place in Magistrates & Crown Courts; burden of proof = “beyond reasonable doubt”.
(b) Employers have a duty under common law to take reasonable care to ensure the safety of their employees.
Referring to relevant case law where appropriate, outline the nature of this duty in terms of:
(i) safe plant and equipment; (6)
(ii) safe places of work. (4)
(i) Relevant case law is Wilson & Clyde Coal v English [1938] - sets out duties to:
•have arrangements in place to select suitable / safe plant and equipment
take account of reasonably foreseeable risks when providing plant and equipment
•provide and maintain safe plant and equipment
•introduce systems for inspection, testing, maintenance, repair and the
reporting of defects Non-delegable nature of the duties.
Duties apply to both new and second-hand equipment.
Common law modified by Employers’ Liability) Defective Equipment Act 1969 which was introduced in response to the decision in the case of Davie v New Merton Board Mills
(ii) Relevant case law is Latimer v AEC Ltd which set out the employer’s duty to:
Provide and maintain reasonably safe premises
take account of reasonably foreseeable risks when providing work premises
inspect, maintain and repair work premises
Summarise the essential elements of a legally enforceable contract. (6)
Describe, with examples, the general types of health and safety-related issue that may be relevant for inclusion in a contract between a client and a contractor undertaking work on the client’s site. (8)
(a) Essential elements: offer by one party; acceptance by another party; have the intention of creating a legal relationship; involve a consideration - money / payment; parties must have the legal capacity to engage in the contract- adult, of sound mind; involve genuine consent (not coerced); not contrary to public policy
(b) Issues in a contract could include requirements to: comply with H&S legislation;
Observe site safety rules; attend induction training; appoint competent persons; monitor H&S performance; stop work for H&S reasons; exclude persons from the site for non-compliance; provide safe plant and equipment; provide welfare facilities; provide emergency equipment and personnel; prohibit sub-contractiing of work; provide Employer’s Liability and Public Liability insurance
Explain, with reference to relevant case law, the circumstances in which an employer may be held vicariously liable for the negligent act of a contractor. (6)
Employer is vicariously liable for negligent act of contractor if:
(i) employer authorises the negligent act or
(ii) the contractor is under the employer’s control when carrying out the negligent act.
Issue of control addressed in Mersey Docks & Harbour Board v Coggins & Griffith (Liverpool) Ltd 1946 - employer of crane driver vicariously liable for his negligence because the hirer of the crane did not have direct control over the way he operated the crane]
Juy12/Jan /09/July 05
A small food company imports and blends natural ingredients, many in powder form. This creates a dusty environment but, since the company believes that the ingredients are inherently safe, the only means of controlling dust levels is by natural ventilation. An employee of the company has recently been diagnosed as severely asthmatic. He claims that he informed the company on starting employment that he suffered from chest problems but no masks were provided or further precautions taken. He also claims that his symptoms have considerably worsened during his three years with the company.
Explain, with the aid of appropriate case law, the legal actions that might be available to the employee in a claim for compensation against his employer, clearly showing what he would need to prove for the actions to succeed. (20)
Double barrelled action; negligence and breach of statutory duty.
Negligence; duty of care owed – employer/employee relationship; duty of care breached – employer did not do everything possible to provide a healthy place to work, it was reasonably foreseeable that the dust would cause/exacerbate the respiratory problems; damage due to breach – medical evidence needed (the person may have developed asthma regardless).
Relevant cases; Wilson and Clyde Coal v English, Paris v Stepney Borough Council. Breach of statutory duty; demonstration of breach and that the employer was the dutyholder; claimant within the class that the statute was designed to protect; harm was of the type that the statute was designed to prevent; damage due to breach; statute allows action (not statute barred). Relevant case; Corn v Weirs Glass.
Relevant breaches; MHSWR 1999 – no RA (reg 3); inadequate arrangements (reg 4 & 5); no health surveillance (reg 6); no provision of H & S information (reg 10); COSHH 2013 – dusts are substances hazardous to health; inadequate RA (reg 6); inadequate control e.g. no ventilation (reg 7); no monitoring (reg 10); no health surveillance (reg 11); inadequate information, instruction, supervision and training (reg 12).
