This
review of the current changes in approach to the legal aspects of health and
safety at work emphasises the importance of putting prevention first. By Linda Goldman and Joan Lewis
In
December 2000, a new Bill on workplace and public transport safety was
announced in the Queen’s Speech. It was formulated in response to the public
inquiry into the Paddington rail disaster chaired by Lord Cullen. Its
importance to those involved in occupational health is that it will also
address the broader issues common to all working systems. Those with long
memories may recall that this was the proposed ambit of the Health and Safety
at Work Act 1974. The Government hopes that the Bill will complete its passage
through Parliament by November 2001.
Present
legal framework
The
health and safety of workers is protected by criminal and civil law. The
criminal law is currently expressed in HSWA which is supplemented by statutory
instruments such as the Management of Health and Safety at Work Regulations
1992. Regulations are amended frequently. Indeed, MHSWR were amended in 1994
and 1997 to take account of changing social attitudes as expressed by European
legislation. Thus, the 1994 MHSWR provide for risk assessments for pregnant and
nursing mothers.
HSWA,
MHSWR and other regulations only express the criminal law, allowing for the HSE
or, in some cases, local authorities to prosecute alleged offenders. Other
regulations, such as the Manual Handling Operations Regulations 1992, allow for
the injured victim of a breach to bring civil proceedings. Criminal law
provides for sentences of imprisonment and non-custodial punishment such as
community service for individuals. Companies are, of necessity, fined. It
remains difficult to secure a conviction for corporate manslaughter unless
management decisions are expressly shared.
"Criminal
and civil liability are two separate things. The [Factories Act 1937] might
well be unwilling to convict an owner [of a factory] who failed to carry out a
statutory duty of a crime with which he was not himself directly concerned, but
still be ready to leave the civil liability untouched" – Potts v Reid
[1942]2 All ER 161.
The
advent of the Framework Directive on Health and Safety (89/391/EEC) in 1989 was
the source of MHSWR and its five satellite regulations, still known as the
"six-pack". It signalled the end of the road for specific workplace
legislation such as the Factories Act. The demise of the Factories Act meant
the end of long legal battles defining whether or not a place was a
"factory" within the meaning of the Act – a hospital – no, for example ; but its pharmaceutical department
– yes.
Effect
of civil litigation
An
employer who is in breach of the common-law duty of care to his employee will
be liable to the employee for damages in negligence if the breach causes
significant (not trivial) injury. The successful claimant will then be entitled
to general damages, which compensate for his pain, suffering and loss of
amenity.
The
UK courts are not known for being particularly generous with general damages,
especially when compared with their American counterparts which commonly order
the wrongdoer to pay punitive damages. Nevertheless, the case of Heil v Rankin
was one of a group heard by the English Court of Appeal in 2000 that
established that increased levels of general damages should be awarded in some
cases.
Awards
up to £10,000 continue to move in line with inflation, when compared with
precedents. More serious injuries have higher awards by up to 25% when compared
with established precedent. The current level of standard awards is set out in
the Judicial Studies Board Guidelines which itemise a full range of injuries
with access to specific cases being set out in legal practitioners’ specialist
textbooks. Awards that make headlines take account of special damages, the real
expenditure that is needed to enable a person to carry out a normal life for
the duration of their convalescence and to cope with residual disability.
Criminal
law
Although
they rarely do so, the criminal courts are able to award compensation to
persons injured in workplace accidents where a company or an individual is
convicted of an offence.
It
would be useful if the new Bill could provide for a system of compensation
since, at present, the injured party is generally able to achieve proper
redress only by bringing a claim in the civil courts. Unless or until that
happens, the criminal courts go about their traditional function of punishment
with the aim of deterrence (to other offenders) and rehabilitation (of the
actual offender).
The
HSE now publishes the convictions achieved. The first report, Health and Safety
Offences and Penalties, lists offences and offenders convicted between 1 April
1999 and 31 March 2000.
This
provides easy access to corporate misdeeds and maintains the publicity. All too
often large fines after serious cases are yesterday’s news. Convicted companies
are rarely as stigmatised as the individual wrongdoer, particularly because of
the legal difficulty of imposing liability on management in most cases
involving individual negligence.
Prevention
is better than cure
The
purpose of risk assessment has always been to identify significant hazards and
take reasonable steps to ensure reduction of risk.
One
particular general example is useful, that of the MHO Regulations, in force
since the end of 1992. Even so, 15,000 manual handling accidents were reported
to the HSE between 1994 and 1997. More than 60 per cent involved patient
handling.
When
advising management on risk evaluation, it would be worth mentioning the HSE’s
Good Health is Good Business campaign: identify the problem; consult with
employees on appropriate steps; take action, including allocating
responsibilities; and evaluate effectiveness of measures.
The
expense of the exercise will be offset, if the example of one NHS Trust is
followed. Its risk assessment showed that equipment and training was needed.
Expenditure of £100,000 reaped the dividend of an 84 per cent reduction in
working hours lost because of lifting mishaps. The actual saving was estimated
at £400,000. The unspoken benefit is the reduction in litigation and the saving
of the corporate "character". Failure to assess for risk has resulted
in many organisations being convicted, a matter which will now be easy to
research.
Difficulties
with management who are reluctant to invest in a proactive programme have been
known to make life difficult for some occupational health personnel. Where a
question of professional integrity arises, the Employment Rights Act 1996,
section 44, provides that an employee has the right not to be subject to any
detriment by any act short of dismissal in certain situations involving health
and safety.
Section
47D (inserted by the Public Interest Disclosure Act 1998) now protects
employees who blow the whistle on unsafe practices, provided that certain
conditions are met. A dismissal on health and safety grounds is likely to be
automatically unfair. Even so, it is to be hoped that constructive or actual
dismissal can be avoided. Improvement in health and safety matters can and
should be achieved by good practice and reasonable communication on both sides
of the managerial divide.
Links
A
transcript of the inquiry is available at www.lgri.org.uk
Judicial
Studies Board Guidelines 5th Ed., 2000, published by Blackstone Press
www.hse.gov.uk/policy/enforce/pdf
is the HSE website for the Report.
Linda
Goldman is a barrister at the civil chambers of Bernard Pearl, Lincoln’s Inn.
She is head of training and education for Advisory, Consulting & Training
Associates & Virtual Personnel.
Joan
Lewis is the senior consultant and director of Advisory, Consulting &
Training Associates and Virtual Personnel, employment law and advisory service
consultancies.
Proposed
improvements
–
Delineation of responsibilities of health and safety officers
–
Removal of Crown immunity so armed forces may be prosecuted
–
Direct liability on individual company directors
–
Inclusion of offshore workplaces
–
Heavier penalties for offenders
Case
round-up
ICI
v Shatwell [1964] 2 All ER 999
– An employee was severely injured when he carried out his job using
explosives, which he was authorised to do, but he broke a specific regulation
that required him to have proper supervision. The Court of Appeal held that, as
he had known of the rule and of the risk of what he was planning, he had gone
willingly to his injury. He was therefore not entitled to damages.
Lane
v Shire Roofing (Oxford) [1995] IRLR 493
– It is necessary for employment status to be determined so that the courts
may offer the protection of the employer’s obligation to take such steps as are
reasonably necessary to ensure the safety of the employee.
Lane
was self-employed for tax purposes and was injured when he fell from his own
ladder while doing a job for which the defendant had provided the estimate and
the materials. Lane was held to have contributed 50 per cent to his injuries
because he knew or ought to have known that his equipment was not appropriate
for the job. The defendant was held to be sufficiently in control of the work
to be the employer and was therefore liable.
Watkins
v Birmingham City Council [2000] – settlement after admission of liability.
(Reported in HASWA Newsletter, November 2000, p7)
– Mrs Watkins, the claimant, was a school cook who developed occupational
asthma because of inhalation of flour dust while preparing meals. From 1989 she
was provided with an electric mixer which sprayed flour dust because it was not
fitted with a containing cover. The flour particles remained in the air, as
there were no extraction units in the kitchen where she carried out her work.
She claimed that no risk assessment was carried out, despite her complaint of
difficulty with breathing and exposure to the flour dust.
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No
personal protective equipment such as a mask was provided and the council
ignored a similar case of occupationally induced asthma in another catering unit
She
retired on the grounds of ill health in 1995. The case was settled in the
amount of £200,000. The breakdown of this amount is not disclosed.
