ABSTRACT
First published in 2001. Routledge is an imprint of Taylor & Francis, an informa company.
TABLE OF CONTENTS
chapter 1|1 pages
INTRODUCTION: THE CONCEPT OF RISK MANAGEMENT
chapter |1 pages
CHARACTERISTICS OF THE LAW
part |1 pages
Section 2(1) does not attempt to itemise what the employer must do, although s2(2) does, ‘without prejudice to the generality’ of s2(1), give an indication of some of the matters that have to be dealt with. The intention of s2(1) is to impose upon employers the task of reviewing the totality of their operations, to ensure that, in every aspect, they are as safe as is reasonably practicable. Regulations made under the 1974 Act have spelt this out, particularly the Management of Health and Safety at Work Regulations. These require employers to make an assessment of the risks to which their employees are exposed and then set up systems appropriate for dealing with these risks. Employers who fail to comply with the duties contained in the Health and Safety at Work Act 1974 and regulations made under it are liable to criminal prosecution. Safe workplaces are unlikely to be achieved unless those who work there are informed of the need to operate safely, trained to ensure that they know how to operate safely, and monitored to ensure that safe systems are actually being operated. Safe systems depend not only on investing in plant and equipment, but also on investing in people. Safety and human resource management are, therefore, closely related and it is difficult to divorce occupational health and safety law from employment law more generally. • The organisation that wishes to avoid civil and criminal liability has considerable reason to endeavour to set up and maintain safe systems. • In setting up systems, employers will need to consider not merely investment in plant and equipment, but also human resource management. The penal element in the law
chapter |1 pages
the industrial accidents which their employees suffered. Such compensation schemes normally only provide for minimum income maintenance. Today the Employers’ Liability (Compulsory Insurance) Act 1969 requires employers to take out insurance cover to meet civil liability, in order to be able to compensate employees who suffer injury while in the course of their employment. • A system of liability insurance raises questions as to whether liability should be stricter. The cost of breaking the law
chapter |1 pages
strategy, but, even for those who have not invested in developing such an image, the climate of the times is such that they cannot afford to acquire a poor reputation for health and safety and environmental protection. A poor public image may result in a fall in the value of a company’s shares on the Stock Exchange; it may cause consumers to refrain from buying its products and it may also deter people from seeking employment with it. Insurance premiums While insurance may cushion wrongdoers from the full impact of compensating for workplace injuries, a poor safety record is likely to result in high insurance premiums. Additionally, research shows that the uninsured costs of accidents far exceed the insured costs. • Breaking either the criminal or the civil law may be costly to the wrongdoer, even though, in civil law, insurance may cushion the wrongdoer from the full cost of the wrongdoing. Distinct roles of the criminal and civil law?
chapter |2 pages
Relevance of foresight
chapter |1 pages
Foreseeability is related to experience It may not be foreseeable that if glass ampoules containing anaesthetic are immersed in disinfectant the anaesthetic will be contaminated, but events may prove that this can happen. The fact that an accident has occurred once may make it foreseeable that it will happen again (Roe v Ministry of Health, below) and it may even be probable that it will happen (Bolton and Others v Stone)!
chapter |1 pages
Prevention is better than compensation
chapter |1 pages
Risk management
chapter |3 pages
Government inquiry into means of improving workplace safety
chapter |1 pages
Academic criticism of the tort system in the 1990s
chapter |2 pages
Governmental agency investigates cost of accidents
chapter 2|1 pages
THE BACKGROUND TO THE MODERN CIVIL LAW
chapter II|1 pages
PHASES IN THE DEVELOPMENT OF THE LAW
chapter 6|1 pages
Fault or strict liability? There is no suggestion of an absolute duty to provide either a safe workplace or safe working arrangements. The propositions about the vicarious liability of the employer assume that such liability would only arise in relation to the ‘consequences of the negligence’ of those named in the examples. The judge’s concern on this matter was exactly that the employer might be responsible for the wrongdoings of these people, even though he, the employer, might not personally be at fault. That is the employer might be strictly liable for the wrongdoing of others. This indeed, is the nature of vicarious liability today. 7 The personal responsibility of the employer This is also addressed in terms of fault (negligence) rather than strict liability. It is said that the master cannot be required to take more care of the servant than he may be expected to take of himself. 8 Personal responsibility of the employee The judgment imposes a considerable responsibility on the employee personally. It is said that he may decline dangerous work. It also says that he is possibly better placed than the employer to evaluate the dangers (it suggests that this may be because the employee is on the spot, while the employer may be elsewhere). It concludes that the employee has a duty towards the employer, as well as towards himself, to ensure that the task is done safely, so that the employer’s interests do not suffer. (b)Developments after Priestley v Fowler
chapter 2|1 pages
Employee’s acceptance of risk The doctrine of common employment was justified on the basis that the employee had, when entering the contract of employment, accepted the risk of injury by other workers employed by the employer. A further development of the same argument was that, by accepting the work and continuing in the employment in the knowledge that there were risks involved, the employee accepted the risks and could not claim damages from the employer if injury were suffered. The employee could be deemed to have accepted risks that a careful employer might have removed. 3 Employer’s duty was to take care The employer’s duty was not a strict one: it was only to exercise reasonable care. However, because of the emphasis placed upon the employee’s acceptance of risk there were relatively few occasions on which a court had to decide whether the employer had shown care. Moreover, when technology was primitive and scientific knowledge was limited conditions which would be totally unacceptable today might be regarded as quite normal. (c) Signs of change
chapter 1897|1 pages
–1948
chapter 3|1 pages
THE FRAMEWORK OF CIVIL LIABILITY TODAY
chapter |2 pages
The fundamental rule of both civil and criminal law is that the party who makes an allegation of wrongdoing (that is, the claimant in civil law and the prosecution in criminal law) has to bring evidence to prove that allegation. The question is: How heavy is the burden of proof which has to be discharged in order to prove the allegation? The burden of proof will depend on the nature of the liability. Broadly, liability, criminal or civil might be: (a) absolute – That is a person has to ensure that a goal is achieved or a state of affairs maintained and is liable if the stipulated state of affairs did not exist without any room for consideration of why this might be. English law very rarely imposes absolute liability; (b) strict – That is a case is made out as soon as it is shown that the required standard has not been achieved: the burden of proof then shifts to the alleged wrongdoer to establish a defence by proving the existence of circumstances which satisfy the court that liability should not be imposed; (c) fault liability – The alleged wrongdoer will not be liable unless the person making the allegation can satisfy the court both that the party concerned has brought about the wrongful state of affairs and that the situation occurred because of the wrongful conduct of that party. In civil law the proscribed behaviour is negligent conduct. Whether the defendant has been negligent is considered objectively: the court is not concerned with the defendant’s state of mind – it is only concerned with how reasonable people would evaluate the defendant’s conduct. Common law favours fault liability
chapter |1 pages
Statutory criteria
chapter |1 pages
terminology, be regarded as self-employed master craftsmen; and following the reduction of the manufacturing base of the British economy there has, in the last 10 years, been a move towards part time and temporary employment and an encouragement of small businesses under the control of the person who provides the labour on which the business depends. While the distinctions are less significant today, some understanding of history is necessary to appreciate the case law. Judicial tests
chapter |1 pages
Declining importance of distinction
chapter |3 pages
employer will only be liable in relation to injuries caused by such people or organisations if the employer has been to some extent personally at fault. The problems usually concern whether in relation to vicarious liability the actual wrongdoer was: (a) the defendant’s employee; (b) acting in the course of the defendant’s employment. In relation to the employers’ personal liability, the matter is nowadays generally a question of fact as to whether or not the organisation ought to have made provision for what has occurred. Some of the more interesting cases have been ones in which the argument has been that the organisation was personally at fault either for failing to give sufficient support to employees or for failing to ensure that persons, who were not the employees of that organisation, made a proper contribution to the organisation’s system of operation. (a) The defendants’ employee?
chapter |1 pages
Relationship between personal and vicarious liability
chapter 4|1 pages
LIABILITY FOR PERSONAL INJURY 1: DUTY OF CARE IN THE TORT OF NEGLIGENCE
chapter I|1 pages
THE DUTY OF CARE
chapter |1 pages
Liability for psychiatric injury
chapter |1 pages
In Young v Charles Church (Southern) Ltd and Another (1997) the claimant had suffered psychiatric illness after seeing his workmate electrocuted close to him when the pole they were moving touched an overhead electric wire. The employers of the two men were both negligent and in breach of the Construction (General Provisions) Regulations, regulation 44. In this case it was held that the claimant was personally at risk; it was chance that it was his colleague, rather than he, who was killed. Therefore, the claimant was entitled to compensation. Liability for stress caused by work overload The reluctance of the courts to grant compensation for psychiatric injury caused otherwise than by nervous shock has now been overcome in cases where an employee has suffered a foreseeable mental breakdown as a result of work overload endured over a period of time. The leading cases of Johnstone v Bloomsbury Health Authority (1991) and Walker v Northumberland County Council (1995) are considered later in this and the next chapter. CAN LIABILITY BE AVOIDED?
chapter 5|1 pages
LIABILITY FOR PERSONAL INJURY 2: BREACH OF DUTY
chapter |2 pages
The following cases indicate the criteria that the courts will take into account when deciding whether conduct has been negligent. Arguably, nearly all of these cases are concerned with the prevention of injury that is foreseeable. (a) Defendants are expected to learn from experience
chapter |2 pages
(iii) Standards may differ in an emergency WATT HERTFORDSHIRE COUNTY COUNCIL [1954] 1 WLR 835 The claimant was employed by the defendants, the local fire authority, as a fireman. An emergency call was received, while the claimant was on duty, that a woman was trapped under a heavy vehicle about 200 or 300 yards away. The officer in charge instructed the claimant’s team to go to the accident in a lorry, taking a jack weighing several hundred pounds. The jack was not often required and the vehicle normally used to transport it was not available. The lorry actually used had nothing by which the jack could be lashed in place. It would have taken at least ten minutes to get a suitable lorry from another fire station. During the journey the lorry had to brake and the jack was thrown on to the claimant, seriously injuring his ankle. The Court of Appeal upheld the judgment of the trial judge in favour of the defendants. The short judgment of Denning LJ at p 838 is quoted in full:
chapter |1 pages
boots. In the House of Lords their Lordships had to decide whether the jury had been entitled to find the defendant employers had been negligent. The issue was whether, in the light of words of Lord Dunedin in Morton v Wm Dixon Ltd (1909) the defendants could be said, once they showed they had complied with industry practice, to have established conclusively that they had not been negligent:
chapter |3 pages
hospital had been negligent. The presumption may arise when the claimant has satisfied the court as to what has occurred but has not been able to show exactly how it occurred. For the presumption to arise, the situation must have been under the control of the defendant; thus, it is particularly likely to arise where an accident has occurred on premises under the control of the defendant. The leading case is: SCOTT v LONDON AND ST KATHERINE DOCKS CO (1865) 3 H & C 596 The defendants dropped a bag of sugar from a crane onto the plaintiff, causing him injury. The plaintiff having satisfied the court on this, the Court of Exchequer was prepared to find that the plaintiff had raised a presumption that the defendant had been negligent. In the judgment of Erle CJ, the rule was, at p 601:
chapter 6|3 pages
LIABILITY FOR COMMON LAW NEGLIGENCE: DAMAGE
chapter |1 pages
The problem of RSI in a keyboard operator has now been taken before the House of Lords in the following case. PICKFORD v IMPERIAL CHEMICAL INDUSTRIES PLC [1998] 1 WLR 1181 In this case also, the majority of their Lordships found against the appellant typist. In the view of Lord Hope, speaking for the majority of the House, the case turned on the evidence presented to the trial judge as to whether it was a foreseeable risk that a person spending most of her working day at a keyboard would contract a recognised illness. His Lordship opined, beginning at p 1196:
chapter |2 pages
(c) Defendant must compensate for all personal injuries caused
chapter |2 pages
(d)The chain of causation
chapter 7|3 pages
CIVIL LIABILITY FOR BREACH OF STATUTORY DUTY
chapter |3 pages
(b)Will the particular statute support a civil claim?
chapter |2 pages
Neither the Health and Safety and Work Act 1974 nor the Consumer Protection Act 1987 allow for civil actions based on the duties contained in the Act itself. Both create a presumption that Regulations made under the Act will support civil actions. (c) Liability under Regulations
chapter |2 pages
The Health and Safety Commission had published a Discussion Document in 1994, entitled Rationalisation of Risk Assessment and other common provisions in health and safety legislation. The following extract is from this Discussion Document (DD 194 C350 7/94):
chapter 8|1 pages
CIVIL LIABILITY: DEFENCES, QUANTUM AND EXTINCTION OF LIABILITY
chapter |8 pages
work. Each settled his personal injury claim on the basis that no claim could be made for loss of earnings during the time of incapacity, because he would not have been able to find work even if fit. Thus, the claims were solely for general damages for pain, suffering and loss of amenity. Nevertheless, the Court of Appeal held that the Department of Social Security were entitled to recoup benefits paid. Such recoupment resulted in the applicants being under-compensated for their injuries and suggests that, as a matter of principle, a claim for loss of non-recoupable benefit should have been claimed as damages by the applicants against tortfeasors. EXTINCTION OF LIABILITY
chapter |3 pages
make litigation worthwhile. By way of summary of this section of this book, a few brief comments on each of these points may be helpful. (a) Rules of law (b)Evidence
chapter 9|1 pages
THE FRAMEWORK FOR PREVENTION OF WORKPLACE INJURIES
chapter |1 pages
might be involved in a fatal accident while driving well within the speed limit and with due care and attention. In the first case the driver was undoubtedly, and unlawfully, creating a risk of causing injury; in the second case the driver would appear to have been faultless yet the consequences of his having engaged in the activity of driving are more serious and the relations of the victim, and, indeed the public more widely, may need persuading that he does not deserve to be punished since, however unwillingly and unwittingly, he has caused a fatality. In recent years there has been an increased popular demand for severe criminal penalties to be imposed upon organisations and their management when commercial activity has led to catastrophic loss of life. PREVENTION NOT PUNISHMENT USE OF GENERAL CRIMINAL LAW
chapter III|1 pages
COMPLEXITY OF LAW OF MANSLAUGHTER
chapter |3 pages
sections is only five years’ imprisonment, whereas the maximum penalty for manslaughter is a life sentence. If manslaughter is to remain one of the most serious criminal offences, the solution may not necessarily be to apply the criteria of the statutory offence of motor manslaughter to the law of manslaughter generally. Whatever the ultimate solution, for the time being, the problems of determining the sort of conduct which is criminal and the state of mind of the wrongdoer when so acting remain at the core of the law of reckless or gross negligence manslaughter. THE CONCEPT OF CORPORATE LIABILITY
chapter |2 pages
which he was subjecting the children who visited the centre. The case would appear to be a clear example of the principle of identification. The procedures followed after the Ladbroke Grove rail crash in 1999 have given rise to another controversy. In that instance, a public inquiry was rapidly set up, under the chairmanship of Lord Cullen, to take evidence to identify the causes of the crash. Shortly after this, it was suggested that the collection of evidence for this purpose, particularly the taking of evidence from witnesses, would be likely to preclude the possibility of bringing any criminal proceedings. PERSONAL LIABILITY FOR COMMITTING MANSLAUGHTER
chapter |1 pages
aspect of special regulatory codes and are dependant on the enforcement system in the particular code. LEGISLATION AGAINST CAUSING DANGER
chapter |2 pages
offence under s 34 and appealed. On appeal it was held that proof of causation of danger was not needed for a conviction: the question was whether the facts proved could properly be described as endangering the safety of any person conveyed on the railway. The conviction was therefore upheld. Giving the judgment of the court, Widgery J said at p 622:
chapter |1 pages
Their first criticism of the system then existing was that there was too much law! However, they also considered that the existing law was ‘intrinsically unsatisfactory’. They found that:
chapter |2 pages
Executive (HSE) (s 11). The HSE is the principal enforcing authority empowered to appoint inspectors (s 19). In the tradition of the earlier regulatory legislation, there are criminal sanctions for breaches of the duties in the Act and regulations. However, there is a new approach in the new legislation, in that the broad general duties impose upon duty holders the responsibility for determining the way in which they will operate to achieve the objectives of the legislation. On the other hand, it gives to inspectors what were, at that time, novel powers to issue notices requiring things to be done to make particular workplaces safer. The inspectors’ powers to issue improvement and prohibition notices may often be used as an effective alternative to initiating criminal proceedings. The remaining chapters of Part II will be concerned with the system put in place under this Act, which continues in force as the framework under which the considerable number of European Directives on occupational health and safety has been, or is being, implemented. ADMINISTRATIVE CONTROL WITHIN THE BRITISH REGULATORY SYSTEM
chapter |1 pages
(b)Licensing as a normal enforcement tool?
chapter |2 pages
(c) Licensing under the 1974 Act
chapter |1 pages
(e) Administrative control falling short of licensing
part |2 pages
PART 5 PROVISION OF INFORMATION BY OPERATOR
chapter |2 pages
it is to be found in most of the regulations made since 1992 subsidiary to the Management of Health and Safety at Work Regulations first introduced in that year. (b)Responsibilities and involvement of workers
chapter |2 pages
Schedule to the Trade Union and Labour Relations (Consolidation) Act 1992 for the purpose of facilitating collective bargaining recognition. It is too early to say whether the complex arrangements set out in the Schedule will substantially increase collective representation in general or in safety matters in particular. The EU remains committed to worker participation and there is some justification for the assumption that the EU intends that such participation will normally be through trade unions. However, in the UK, the decline in trade unionism has resulted in many workplaces where the employer does not recognise a trade union as representing all or any of its workforce. This means that there are many more workers now than there were when Robens reported who have no trade union channel of communication with their employers on safety matters, though this is the situation that ‘New Labour’ took up government committed to changing. It might possibly be argued that, 20 or so years after the publication of the Robens Report, employees have a greater entitlement to information, but less power to bring about change, than that Committee envisaged; while through ‘empowerment’, as granted in legislation and operated in practice, they have greater responsibilities. SUMMARY
chapter 1|2 pages
Application of the Act Scope of the Act
chapter 4|3 pages
Relevant substantive law
chapter |1 pages
areas that have previously been barely regulated. An example of a situation where EC activity has required a radical new set of regulations in the UK is in the area of working time. The UK eventually responded to EC Directive 93/104 on Working Time with the Working Time Regulations 1988 (SI 1988/1833). At the same time, further Directives from the EC, in areas already addressed, necessitate the re-issuing of Regulations. For example, the Control of Substances Hazardous to Health Regulations 1994 (SI 1994/3246) has now been replaced by the Control of Substances Hazardous to Health Regulations 1999 (SI 1999/437). Subordinate legislation Updating or deregulation?
chapter 8|4 pages
The burden of legislation
chapter |1 pages
The Robens Committee envisaged a system in which industry contributed substantially to the creation of codes of practice. As the system now operates it is HSC custom to consult widely when it has created a draft code. More controversially the HSE adopted the practice of issuing guidance suggesting how to comply with regulations. Guidance can have no evidential value in a court. In its Review of Health and Safety Regulation, the HSC acknowledged (at p 1) the possibilities of confusion:
chapter |1 pages
The case of Walker v Wabco Automotive UK Ltd indicates judicial awareness that guidance from the HSE does not have the status of legislation. In that case, the Court of Appeal held that the trial judge was wrong to place reliance on HSE guidance about power tools leading to injuries such as carpal tunnel syndrome. In the Court of Appeal’s opinion, the guidance could not be set against the fact that the employer had 20 years’ experience of operating without any complaints from employees. ENFORCEMENT
chapter XIII|3 pages
SENTENCING POLICY
chapter 11|2 pages
THE GENERAL DUTIES
chapter |1 pages
requiring the employer to inform, instruct, train and supervise both his own employees and other workers who might, by their behaviour endanger his employees; • Paragraph (d), dealing with safe means of access to and egress from the place of work, reflects s 29(1) of the Factories Act 1961, but extends to all workplaces and, unlike s 29(1) (now repealed), cannot found a civil action; • Paragraph (e), the provision and maintenance of a safe working environment: the limits of this ‘mopping up’ provision are not entirely clear, but it is possible that it might, as it includes welfare arrangements, include coverage of protection against mental stress, such as might be caused by overwork, or harassment by fellow workers. Section 2(3): the safety policy
chapter |2 pages
Conduct his undertaking
chapter |1 pages
Duties of controllers of premises
chapter 2|8 pages
cases are of special interest: one extended the duty to the lift of a block of flats; the other, a House of Lords’ decision, concerned the relationship between employer and subcontractor and is not easily reconciled with the cases which, on similar facts have, more recently, been heard on s 3. Non-domestic premises
chapter |1 pages
REGULATIONS RELEVANT TO OCCUPATIONAL HEALTH AND SAFETY
chapter |14 pages
THE MANAGEMENT OF HEALTH AND SAFETY AT WORK REGULATIONS
chapter |3 pages
THE ROLE OF THE WORKER
part |1 pages
Section 2(3) requires the employer to bring the organisation’s safety policy to the notice of all their employees. In the 1970s employers were urged to draw up their safety policies, and any revisions of them in consultation with their employees. In those days however the focus was on the statement of policy and the management organisation for achieving safety. Increasingly the emphasis has shifted to the safety arrangements which form part of the policy. In a sophisticated organisation nowadays individual employees will be informed, instructed, trained and supervised in the arrangements made further to the general policy statement for carrying out the particular roles they individually are expected to perform at the workplace. The employers’ arrangements may be governed by Regulations made under the Act; for example, the arrangements which have to be made for manual handling of loads are indicated by the Manual Handling Operations Regulations 1992 and guidance published with those Regulations. Interestingly, recent Regulations like the Six Pack, which require employers to have systems for dealing with assessment and response to risk do not expressly refer to s2(3) of the 1974 Act. (ii) Duty to consult Section 2(4) to (7) sets out a framework for the appointment of safety representatives and imposed on the employer a duty to consult with such appointees: HEALTH AND SAFETY AT WORK ETC ACT 1974
chapter IV|1 pages
WORKER INVOLVEMENT IN THE 1990 AND BEYOND
chapter |1 pages
Comment TERMS AND CONDITIONS OF EMPLOYMENT
chapter |7 pages
(b)Constructive dismissal under s 95(1)(c)
chapter |2 pages
employee from dismissal in safety cases. However, it seems likely that even now, as when these cases were heard, there would be dispute as to whether on the facts there was a problem of unsafe working conditions. An actual example is Kerr v Nathan’s Wastesavers Ltd, where the EAT upheld a tribunal finding that the employee’s dismissal was not within this section. He had honestly believed his working conditions were potentially unsafe, but he had no reasonable grounds for that belief. In none of these cases was there any question of the employee having insufficient length of service, by the rules then currently in force, to qualify to lodge a claim in an Industrial Tribunal. SUSPENSION ON MEDICAL GROUNDS
chapter |3 pages
Comment
chapter |1 pages
THE ROLE OF THE EUROPEAN UNION
chapter III|1 pages
LEGISLATIVE PROCEDURES
chapter |11 pages
Example of a directive
part |1 pages
SECTION IV: MISCELLANEOUS PROVISIONS