IOSH Humber Branch Legal Update Brian Pettifer 2 February 2011

IOSHHumber BranchLegal Update

Brian Pettifer2 February 2011

• Slips and trips account for majority of accidents in the workplace. In icy conditions the situation gets worse

• HSWA 1974 sections 2(2)(d) and 3 apply

• Workplace Regs 1992 Reg 12 provides duties to staff, subcontractors and other third parties

• Occupiers Liability Act, 1957 - common duty of care to visitors to premises to be given safe access to property. Take reasonable steps to clear ice and snow from access ways. Responsibility extended to trespassers by Occupier’s Liability Act, 1984.

Icy Conditions

Icy Conditions

• Public Liability insurance - covers accidents occurring which are in breach of the obligation - conditional upon reasonable steps being taken to mitigate avoidable risks.

• “Winter risk Management” undertaken in professional manner

• Assessments – ensure right equipment & materials availableoperators are alerted to monitor the weather and take appropriate action.

• Large areas (car parks, access roads) serviced by gritting vehicles. Paths and stairs - manual spreaders and shovels.

• Attention to training and record keeping.

Icy Conditions

• HSE guidance on website (20 October 2010): tips on clearing snow and ice recommends clearance early in the dayuse of salt or sand and not waterwarns people not to shovel snow so as to block other people’s paths or drains.

• Refreshingly pragmatic advice: should not put off cleaning paths because you’re afraid someone might get injured

people walking on snow and ice have responsibility to be careful themselves

Disciplinary cases

• SHP Article (April 2010) reminds IOSH members that we are required to comply with the Code of Conduct

to set high standards for our members with regard to both ethics and competence

expected to act with honesty and integrity at all times, both on and off duty

• Disciplinary committee deals with conduct below the standards expected and likely to bring IOSH into disrepute. Committee need to be satisfied an allegation of misconduct is more likely than not to be true for it to be upheld.

Disciplinary cases

• Two cases: Breach of Point 11 of the Code of Practice “Members shall not improperly use their membership or position within the organisation of the Institution for commercial or personal gain or use or attempt to use qualifications, title and/or designations to which they are not entitled”.

Allegation that he used a document purportedly certifying that he was admitted as a Graduate Member of the Institution where in fact he was an Affiliate Member.

The Committee viewed this a serious matter and expelled him.

Disciplinary cases

• Two cases: Breach of Point 18 of the Code of Conduct “Members must act within the law and are required to notify the Institution if they are convicted of any criminal offence. A relevant conviction may lead to disciplinary proceedings against that Member”

Two allegations of misconduct presented against a member - Firstly he was convicted of criminal offences and secondly he did not inform the Institution of these convictions.

Allegations were upheld and found as a very serious matter so he was expelled from membership

Accreditation of consultants• Young Review confirms the creation of such a scheme, HSE has issued more details:

Occupational Safety Consultants Register to go live in January 2010

IOSH, CIEH et al supporting HSE to run scheme. Intention is that scheme to be run by professional bodies through not-for-profit company with HSE support.

Website set up for employers to find local advisors with experience relevant to their sector

Accreditation of consultants• Young Review confirms the creation of such a scheme, HSE has issued more details:

Membership of the scheme voluntary, open to chartered members of IOSH, CIEH, REHIS or a fellow of IIRSM.

Those on the register will be bound by a code of conduct to provide only “sensible and proportionate advice”.

Common Sense Common Safety – Lord Young

• Issued by Lord Young of Graffham – 16 October 2010

• Government intends to adopt the whole report - expect departmental initiatives and guidelines and parliamentary legalisation

• 36 recommendations under 12 headings:

• Compensation Culture:Simplified claims procedure for personal injury claims (similar to road traffic accidents under £10,000 recommended)

Restrict operation of referral agencies, personal injury lawyers and volume & type of advertising


• Compensation Culture:Clarification that people not held liable for any consequence due to well intentioned voluntary acts

• Low Hazard Workplaces:Simplification of risk assessments for low hazard workplaces with HSE placing simpler interactive risk assessments on its website.

HSE to create periodic checklists to record such businesses compliance with regulators.

Exempting employers from risk assessments for employers working from home and self- employed people in low hazard businesses.


• Raising Standards:Professionalise health and safety consultants with a qualification requirement that all consultants should be accredited to professional bodies.

Web based directory accredited health and safety consultants established

• Insurance: Insurance companies use only qualified consultants who appear on web based directory

Should draw up code of practice for health and safety for businesses in the voluntary sector


• Education:Simplify process that schools and similar organisations undertake before taking pupils on trips.

Shift from risk assessment system to risk-benefit assessment - possibly review legislation to separate play and leisure from workplace contexts.

• Local Authorities:Officials who ban events on health and safety grounds should put their reasons in writing.

Citizens should be able to go for unfair decisions to the Ombudsman – decision given within 2 weeks.


• Health and Safety Legislation:Current health and safety regulations consolidated into a single set of accessible regulations.

HSE should produce a Code of Practice focused on small and medium businesses engaged in lower risk activities.

• RIDDOR:The period within which a return is required to be sent to a centralised body should be extended to seven days.

• Working with Larger Companies:A consultation undertaken with a view to improving the system, including the Primary Authority Scheme, with an enhanced role for the HSE, for larger multi-site retail businesses.


• Combining Food Safety with H&S Inspections:Proposed to combine food safety with health and safety inspectors in local authorities.

Young would make mandatory local authority participation in the Food Standards Agency’s Food Hygiene Rating Scheme (0 to 5 ratings for businesses serving or selling food to the public)

• Police and Fire Services:Police officers and firefighters should not be at risk of investigation and prosecution under health and safety legislation when engaged in the course of their duties if they have put themselves at risk as a result of committing a heroic act.


• Adventure training:The Adventure Activities Licensing Authority set up in 1995 should be abolished - licensing replaced by a code of practice to be monitored by the HSE.

• Annex M:Timetable for implementation

• Annex D:Health and Safety Hysteria in the Press – false and exaggerated stories

• Expected by-product is that the atmosphere within which health and safety advisors carry out their duties and their reputation as a whole will improve.

Occupier’s Liability – forseeability of trespassPaul Mann v Northern Electric Distribution Ltd - Court of Appeal (2010)

•Child aged 15 trespassing at electricity substation whilst retrieving a ball came into contact with a bus bar carrying 66,000 volts causing him severe burns and subsequent amputation of a leg. Defendant alleged to be in breach of Electricity Supply Regulations 1988 requiring substations to be surrounded by fence or wall at least 2.4 metres high. In fact wall was over 4 metres high with rotating anti- climbing device. Claimant managed to overcome these formidable obstacles with remarkable athleticism and ingenuity.

Occupier’s Liability – forseeability of trespassPaul Mann v Northern Electric Distribution Ltd - Court of Appeal (2010)

•Judge at first instance dismissed the claim on basis that it was not foreseeable that a trespasser would have been so determined or inventive in gaining access. In consequence it was not reasonably practicable for the defendant to take steps to prevent it.

•On appeal the Court of Appeal upheld the decision

Suitability of PPE

Steven Threlfall v Hull City Council – Court of Appeal(Civil Division) 20th October 2010

•Applicant (T) was a local authority employee - he appealed against the dismissal of his appeal against a decision that he had failed to establish a breach of regulation 4 of the Personal Protective Equipment at Work Regulations 1992 (PPE 1992) by the respondent local authority.

•T was a street scene operative. On 8th May 2006 he sustained a serious cut to his left hand while clearing debris from the garden of a council property. He brought an action alleging that his injury was due to negligence or breach of statutory duty of the Council in failing to provide him with suitable protective gloves.

Suitability of PPE


•T’s claim and first appeal failed on a point which arose in respect of the construction of PPE 1992.

•T’s case was that the general purpose gloves provided by the Council which he was wearing when picking up one of the black bags were not ‘cut resistant’ allowing something sharp within the bag to penetrate the glove cutting a tendon to one of his fingers.

Suitability of PPE


•Reg 4 (1) PPE 1992 states “every employer shall ensure that suitable PPE is provided to his employees who may be exposed to a risk to their health and safety while at work except where and to the extent that such risk has been adequately controlled by other means which are equally or more effective.”•Reg 6 (1) states: “ Before choosing any PPE which by virtue of regulation 4 he is required to ensure is provided, an employer …… shall ensure that an assessment is made to determine whether the PPE he intends will be provided is suitable”

Suitability of PPE


•Regs 4 and 6 are linked - both should be used to guide an employer in the provision of suitable PPE

•Lady Justice Smith in her judgement described the risk assessment as ‘manifestly defective’. If the risk assessment had been carried out properly the employer would have recognised the specific risk for cut injuries and could then have considered the suitability of the gloves to be provided. “Effectiveness is at the heart of suitability” said the judge

Suitability of PPE


•The question to be asked is “Does this proposed item of PPE prevent or adequately control the identified risk of injury?”

•The standard issue gloves which T was given did not effectively prevent or adequately control the risk. They were not designed to prevent laceration.

•Practicability was not a defence as the same manufacturer could have provided suitable gloves.

•T won the appeal.

Any Questions?

Documents

IOSH Humber Branch Legal Update Brian Pettifer 2 February 2011