IOSH Humber Branch Legal Update Brian Pettifer 5

IOSH Humber Branch Legal Update Brian Pettifer 5 th December 2012

Progress on Lofstedt report • One aim of the review was to combine, simplify or reduce the statutory instruments enforced by HSE and local authorities and their ACo. Ps. • Lofstedt is seeking consolidation of existing law by 30%, streamlining number of regulators (but not level of protection), place greater emphasis on risk, and promoting health and safety education. • He considers current law to be ‘broadly fit for purpose’. • Report states there is 46% less regulations than 35 years ago but still too much. He wants to reduce by a further 35% in number of statutes but not in statutory duties.

Progress on Lofstedt report • Recommended to evaluate CDM Regs 2007 and its ACo. P, and overhaul RIDDOR 1995 by end of 2013 • Noted that European Commission to review health and safety legislation in 2013. • Aco. P proposals: 1. Revive, consolidate or withdraw 15 ACo. Ps, also Management Regs ACo. P to be replaced with more specific guidance by end 2012. 2. To make minor amendments or no changes to a further 15. 3. To limit length of ACo. Ps to max 32 pages other than in exceptional circumstances.

Progress on Lofstedt report • Recommended to exclude self-employed workers (i. e. Those with no employees) whose work pose no potential risk of harm to others from health and safety law. • Recommendation that HSE be primary authority for multi-site national organisations ignored by Government. • Recommended that HSE given authority to direct all Local Authority H&S inspection and enforcement activity.

Progress on Lofstedt report • On ‘Compensation Culture’ report stated no evidence for its existence. • Recommended that legislation imposing strict liability be revised by June 2013 to either qualified with ‘reasonably practicable’ or amended to prevent civil liability to those provisions. • Lofstedt has asked for a mini-report detailing progress by end of January 2013.

Progress on Lofstedt report • Legislation under review: • Reporting of Injuries, Disease or Dangerous Occurrences Regulations 1995 – consultation finished 28 th Oct 2012 • Recommended extension of reporting period. • Construction (Design and Management) Regulations 2007 – to be revised along with ACo. P • Recommended duties are expressed clearly, bureaucracy reduced and guidance for small projects. • Control of Major Accident Hazards Regulations 1999 – to be reviewed. • Only businesses in the chemical sector were involved in the consultation.

Barr and others v Biffa Services Ltd (2012) • Environmental case • Biffa operated a waste tip and obtained a statutory permit allowing acceptance of household and non-hazardous industrial and commercial waste. • Complaints received from local residents about the smell from the tip and they sued in nuisance. • Judge found for defendant’s claim that it would be unfair to ignore the statutory permit that it had complied with and be liable to a common law nuisance action. High court also found for the defendant.

Barr and others v Biffa Services Ltd (2012) • Court of Appeal allowed the resident’s appeal ruling that the normal principles of nuisance applied. • Nuisance depends on all circumstances of the case including the character of the neighbourhood. Biffa’s permit had not changed the essential character of the neighbourhood. • Statutory authority may be a defence in some cases where the act authorised will inevitably involve a nuisance even if all reasonable precautions were taken. It was ruled this was not the case here.

Lawrence and another v Fen Tigers Ltd (FTL) and others. • Environmental case – contrasts with Biffa case • FTL had operated a racetrack since 1975 under a series of planning permissions and certificates of Lawful Use. • Claimants bought a house in 2006 near the track and brought proceedings in nuisance after repeated complaints of noise. • High Court found for the claimants.

Lawrence and another v Fen Tigers Ltd (FTL) and others. • Court of Appeal granted FTL’s appeal on grounds that planning permissions over time had changed the character of the locality and noise from the track had become one of the established characteristics of the locality. • Also planning consents were matters of public record which could have been discoverable by the claimants, or their solicitors, in carrying out usual searches before purchasing their property.

Fee for Intervention • s. 23 The Health and Safety (Fees) Regulations 2012 • Fee payable to HSE if a person is, in the opinion of an inspector, contravening a statutory provision that HSE enforces and the person has been informed in writing. • Written notification of the details of the possible contravention and to inform that FFI is payable to the HSE must be given. • Effective from 1 st October 2012. Places duty on HSE to recover costs for carrying out its regulatory functions from a dutyholder found to be in ‘material breach’ of HSW Act and Regulations made under the Act.

Fee for Intervention • Applies to employers, self-employed and includes Crown and Public bodies. • Other enforcing authorities such as police, local authorities etc are not able to recover under FFI. • Does not apply to actions taken against employees, selfemployed who only put themselves at risk, individuals committing an offence under s 36 and 37 of HSW Act. • Material breach not defined in the Regulations but guidance says it is when, in opinion of the HSE Inspector, there is or has been a contravention of health and safety law. If his opinion is outside judicial interpretation of the term in case law he can be challenged.

Fee for Intervention • Inspectors expected to comply with the Enforcement Policy: a) Proportionality of enforcement action b) Targeting towards businesses posing most serious risks c) Consistency of approach d) Transparency so businesses understand what is expected of them e) Accountability to ensure HSE has clear policies and standards against which performance can be judged. • Inspectors should work to Enforcement Management Model – helps them to decide which is most appropriate action, i. e. Verbal warning or advice, written notification, improvement/prohibition notice or prosecution.

Fee for Intervention • Inspector should compare actual risk with the legal standard to identify the risk gap, which could be nominal, moderate, substantial or extreme. • Relevant law can be divided into: i. Defined – clear, needs little or no interpretation ii. Established – standard not set in law but there are commonly known and published standards iii. Interpretative – no standards set in law or commonly known standards, so must be interpreted from first principles

Fee for Intervention • Basic fee is £ 124 per hour – may change in the future. No VAT is charged. • Fee covers costs wholly and exclusively attributable to regulatory work in relation to the material breach. • Includes all work needed to identify a material breach and ensure it is remedied. Also includes investigation and enforcement action up to when intervention has been concluded or prosecution started. • Inspector will apportion time spent with multiple dutyholders.

Fee for Intervention • Invoicing carried out centrally, inspectors do not issue invoices. • Procedure for queries and disputing invoices – initial enquiries treated as a query for which no fee is payable. If not satisfied invoice can be formally disputed in writing. • Fee is payable for handling disputes if dispute is not upheld.

Public Enquiries • Is an official review of events or actions ordered by government body in the UK. • Current statute is Enquiries Act 2005 – Ministers have power to call or suspend enquiries. • Enquiries have full powers to seek out information. Report must be in full, unless clear reasons for withholding info. • Events resulting in public enquiries include: widespread loss of life, threats to public health or safety, failure by the state in its duty to protect, failure in regulation, shocking events. • They must be independent and proceed by inquisition.

Public Enquiries • Learning lessons to prevent reoccurrence is central to most enquiries, e. g. Aberfan, Piper Alpha, Hillsborough, Kings Cross fire etc. • Hundreds of recommendations have been made as a result of enquiries, e. g. All-seater stadiums, new fire safety regulations, offshore regulations, new International Maritime codes etc. • Recommendations not always heeded, so there’s a case for an audit system so findings are not allowed ‘to pass unheeded into the limbo of forgotten things’.

Hillsborough Stadium Disaster, 15 th April 1989 • The 2 reports (Interim Report and Final Report) were detailed, accurate and swift. • Recent Independent Panel chaired by the Bishop of Liverpool showed the findings and recommendations were right. Problems identified were the follow-through by Parliament and the attitude of the South Yorkshire Police. • Interim report stated ‘The South Yorkshire Police policing on 15 th April broke down and although there were other causes, the main reason for the disaster was the failure of police control’.

Hillsborough Stadium Disaster, 15 th April 1989 • Taylor, L J spoke of regret that South Yorkshire Police were not prepared to concede they were in any way at fault in what had occurred. Such an unrealistic approach gives cause for anxiety as to whether lessons had been learned. • Report was close to being a model, but was totally let down because it was not followed through effectively. 23 years of frustration could have been saved if police leadership had not been allowed to thwart its purpose.

Risk • Loftstedt supports concept of risk assessment – ‘legal requirement to do a risk assessment is a fundamental step in the appropriate management of risk assessment in any business’. • Underlying basis of liability in negligence is reasonable foreseeability, i. e. likelihood of injury occurring, potential severity of outcome, proportionality and role of public policy. • Courts tend to shift responsibility on defendants to show that they had done all that was reasonably practicable.

Risk • Recent joined cases concerning fatalities at work, R v Tangerine Confectionary and R v Veolia (2011) • Tangerine convicted under s 2(1) of HSW Act and reg 3(1)(a) of Management Regs. Veolia convicted under s 3(1) of HSW Act. • Hughes L J in Court of Appeal pointed out that s 2 and 3 offences lie in failure to ensure safety so far as is reasonably practicable. i. e. It is about exposure to risk of injury. Causation of injury, therefore, is not an ingredient of either offence.

Risk • Supposedly there is judicial uncertainty about concepts of ‘reasonably practicable’ in criminal law and ‘ reasonably foreseeable’ in civil law. The term reasonable is central to both. • Need to bear in mind: • Risk assessment is an exercise in foresight. • Real issue is to distinguish between hazard (something with potential to harm) and risk (likelihood of harm being realised). • Risks of exposure to injury that are reasonably foreseeable can be things that are not obvious as well as those that are obvious or have occurred before. • Risk assessment that merely seeks to justify existing controls is inadequate.

Senior Management Prosecutions • s 37 of HSW Act applies to all persons in positions of real authority. Now punishable by up to 2 years imprisonment or unlimited fine. s 7 applies to all employees. • s 37 prosecutions have increased in recent years: in 20002010 average of 23. In 2010/11 there were 43. For s 7 average of 20 and just 13 in 2010/11. Conviction rate for s 37 is at 81%. • There is exhortation for business leaders to lead in health and safety as they do in other areas of business. Some strong voices say voluntary approach not working and statutory duties need imposing.

Corporate Manslaughter Cases • R v JMW Farms did not shed much light on the application of the offences (as in R v Cotswold Geotechnical Holdings (2011)). • Only 2 directors – company pleaded guilty so straightforward case. Fine of £ 187, 500 was a record in Northern Ireland for a workplace health and safety offence.

Corporate Manslaughter Cases • R v Lion Steel Equipment Ltd (2012). Third CMCH case to have been concluded. Company was a relatively small organisation. Fined £ 480, 000 after pleading guilty. • Maintenance worker fell 13 metres to his death. He had no protective equipment and no barriers or protective measures were provided for working on a fragile roof. • Crown Prosecution Service criticised for four year timelapse between the fatality and the trial. Also for refusing to accept an offer from the defence at an earlier stage, and for excessive preparation time.

Any Questions?