BASIC OCCUPATIONAL SAFETY AND HEALTH

1. © CHSS 2003
Ref: SC/086/V1
Module 04
Law

2. © CHSS 2003
Ref: SC/086/V1
Law is
“A body of rules that
aim to regulate the
behaviour of society”
“Changing to reflect
the demands of a
modern dynamic
electorate”

3. © CHSS 2003
Ref: SC/086/V1
Criminal and Civil Law
Criminal
 Crimes
 Offences against society
 Mainly Statute Law
 Action brought by State.
 Intended result is
Punishment
 Punishment cannot be
insured against
 Action can be taken
regardless of loss
 Proven guilty beyond
reasonable doubt.
Civil
 Torts
 Offences against individual
 Mainly Common Law
 Action brought by an individual
 Intended result is Compensation
("damages")
 Insurance can be obtained.
 No action is possible unless there
has been a loss
 Proven liable on balance of
probabilities.

4. © CHSS 2003
Ref: SC/086/V1
The Influence of Europe
European
Directives
Health and Safety at
Work etc Act 1974
Regulations
ACoP Guidance

5. © CHSS 2003
Ref: SC/086/V1
Green Paper - the need for the legislation
White Paper - firmer indication of
legislative intents
First and Second readings followed by the
detailed committee stage
Report stage - formal report to the House
Third reading consists of verbal
amendments not on the Bill’s principles
The Making of Law

6. © CHSS 2003
Ref: SC/086/V1
Regulations
Some Acts may be Enabling Acts
Statutory instruments or regulations
made under the act are sometimes
called ‘subordinate’, ‘delegated’ or
‘secondary’ legislation
Regulations are usually proposed by
the HSC

7. © CHSS 2003
Ref: SC/086/V1
Approved Codes of Practice
(ACOP)
An ACOP sets examples of good practice
that have been approved by the HSC. An
ACOP is NOT law.
ACOPs specify, in greater detail or in a more
liberal style, precise technical or other
requirements not practicable or desirable in
regulations.
A Simple and Flexible Extension of the Law

8. © CHSS 2003
Ref: SC/086/V1
European Community
Directives
Made under article 118A of the Treaty of Rome -
harmonisation of standards throughout the
community.
Minimum standards
Member States may introduce more stringent standards
Introduced gradually
Take into account existing conditions and technical rules
in each Member State
Must not impose financial, administrative or legal
constraints which might hold back the creation or
development of SME’s

9. © CHSS 2003
Ref: SC/086/V1
Reference Material
Ignoranta Legis non excusat
HMSO for statute but beware of
repeals, modifications and non
enactment.
Standard texts such as “Redgraves”
Guidance such as “Croners”
HSE Books for ACOPs and Guidance

10. © CHSS 2003
Ref: SC/086/V1
Health and Safety - Civil
System
Following a loss, the plaintiff can seek
compensation by proving negligence in
one of two ways:
Breach of Common Law duties
Breach of Statutory duties

11. © CHSS 2003
Ref: SC/086/V1
Common Law
Judicial Precedent (case or judge
made law)
In the civil system much of the law is
common law
Law of Contract
Tort of Negligence
Tort of Trespass
• (a Tort is a civil wrong)

12. © CHSS 2003
Ref: SC/086/V1
Breach of Common Law duties
A Tort, a civil wrong
It is necessary for the plaintiff to prove
(on the balance of probability):
The Defendant owed him a duty of care
The Defendant breached that duty
The breach caused his injury or loss to the
plaintiff

13. © CHSS 2003
Ref: SC/086/V1
Who do we owe a duty of care to?
Donoghue v Stevenson [1932] AC 562,HL
“You must take reasonable care to avoid
acts or omissions which you can
reasonably foresee would be likely to injure
your neighbour. Who, then, in law is my
neighbour?”

14. © CHSS 2003
Ref: SC/086/V1
What makes up the duty of
care?
Provision of a safe system of work.
Maintenance of the workplace.
Provision of safe and suitable plant
and equipment.
Supervision and instruction of
employees.
Selection of employees - no horseplay.

15. © CHSS 2003
Ref: SC/086/V1
The Standard of Care
 The standard of care is that of an ordinary
prudent man - the care a reasonable man
would show in the circumstances of the case.
it is variable, for example you are expected to take
more care when handling a loaded gun than in
handling a walking stick.
If serious consequences follow from carelessness
then a greater duty of care is owed.
 The standard of care changes in light of
new knowledge and expectations
Yachuk v. Oliver Blais Co. (1949)

16. © CHSS 2003
Ref: SC/086/V1
Breach of Statutory Duty
The employee must show
The statutory duty gave rise to the civil liability
The statutory duty was owed to the employee
by the employer
There was a breach of the statute
The breach of the duty caused the injury
The statute was intended to prevent the injury

17. © CHSS 2003
Ref: SC/086/V1
Vicarious Liability
The employer is liable for the acts or
omissions of employees, even when the
negligent act is committed without
authorisation or expressly forbidden.

18. © CHSS 2003
Ref: SC/086/V1
Defences in cases of Negligence
Denial of Liability
Contributory Negligence
Third Party Liability
Volenti non fit injuria
Limitations Act 1980

19. © CHSS 2003
Ref: SC/086/V1
Woolf Reforms
From 26.4.99 the new Civil Procedures
Rules transformed the civil claims
process and encourage early settlement
of disputes.
Pre action protocols set out timetables and
standards for the conduct of the case - the
overall aim is to encourage settlement.
Used were the claim is for less than £15,000

20. © CHSS 2003
Ref: SC/086/V1
Standards in Statute
Absolute requirements
Practicable
Reasonably practicable (SFARP)
this is a narrower term than physically
possible… the quantum of risk is placed on
one scale and the sacrifice, whether in
money, time or trouble is placed on the
other. (Edwards v National Coal Board
1949)

21. © CHSS 2003
Ref: SC/086/V1
Section 2(1) Employer to Employee
“It shall be the duty of every employer to
ensure, so far as is reasonably
practicable, the health, safety and welfare
at work of all of his / her employees”

22. © CHSS 2003
Ref: SC/086/V1
Section 2(2) Employer to Employee
includes the need to provide :-
 safe plant and systems of work
 safe systems for the use, handling, storage
and transport of articles and substances
 Information, instruction, training and
supervision
 Safe place of work with a safe means of
access and egress
 Healthy working environment & welfare
provisions

23. © CHSS 2003
Ref: SC/086/V1
Section 3 - Employers duty to
other persons
 “To conduct his / her undertaking so
that others are not exposed to risk”
e.g. Contractors, visitors, neighbours, etc.
 Self employed also have a duty to
ensure the safety of themselves and
others affected

24. © CHSS 2003
Ref: SC/086/V1
Section 4 - Persons in control
of premises
To ensure premises, access &
egress, plant & substances
are without risks to persons at
work or using equipment,
other than their employees

25. © CHSS 2003
Ref: SC/086/V1
Section 6
Designers, manufacturers, suppliers, and
importers of substances or articles for use at
work has duties to ensure, so far as is
reasonably practicable, that :-
 it is safe and without health risks when
used
 it is adequately tested and examined
 information about safe use is made
available

26. © CHSS 2003
Ref: SC/086/V1
Section 7 - Duty of Employees
 To take reasonable care for the
health and safety of themselves
and other persons who may be
affected by their acts or omissions
 To co-operate with their Employer
(and other persons) to enable any
statutory duty to be performed or
complied with

27. © CHSS 2003
Ref: SC/086/V1
Section 8
 No person shall intentionally or
recklessly interfere with or misuse
anything provided in the interest of
health, safety & welfare

28. © CHSS 2003
Ref: SC/086/V1
Section 9 -
No employer shall levy or charge in respect
of statutory provision

29. © CHSS 2003
Ref: SC/086/V1
Section 36 - Default of others
Any other person who,through his / her
ACT or DEFAULT, causes an offence to
be committed may be charged with the
same offence

30. © CHSS 2003
Ref: SC/086/V1
Section 37 - Offences by Body
Corporate
“Where an offence, committed by a body
corporate, is proven to have been committed
with the consent, connivance or neglect of
any director, manager or similar person
then s/he, as well as the body corporate,
shall be guilty of that offence and liable to be
proceeded against.”

31. © CHSS 2003
Ref: SC/086/V1
Section 40 - Onus of Proof
 It falls upon the accused to prove
that it was not reasonably
practicable to do more than was in
fact done.
 The court must be satisfied on
the balance of probabilities.
 Innocent until proven guilty ??

32. © CHSS 2003
Ref: SC/086/V1
Powers of Inspectors (s20)
(a) Power of entry
(b)Take a constable
(c) Take any other
person or
equipment etc
(d)Examination and
investigation
(e)Direct premises
remain undisturbed
(f) Take measurements,
photographs or
recordings
(g)Take samples
(h) Dismantle or test
dangerous articles or
substances
(i) Take possession and detain
items mentioned in (h)
(j) Require a person to give
information
(k) Inspect and copy books and
documents
(l) Require facilities and
assistance
(m) Any other power

33. © CHSS 2003
Ref: SC/086/V1
Enforcement Options
Informal Enforcement Action
Verbal
In writing
Formal Enforcement Action
Improvement Notice
Prohibition Notice
Deferred Prohibition Notice
Prosecution

34. © CHSS 2003
Ref: SC/086/V1
The Criminal Courts
Magistrates.
For breaches of sections 2 - 6 of HASAWA,
£20,000.
Other sections and legislation, £5000.
Crown.
Unlimited fines and imprisonment for serious
offences.
Appeals.
To the Crown Court, the Court of Appeal, QBD of
the High Court and the House of Lords.

35. © CHSS 2003
Ref: SC/086/V1
Court Structure (England and Wales)
Magistrates Court
Crown Court
Court of Appeal
Criminal Division
Small Claims Court County Court
<£50,000
High Court
>£50,000
Court of Appeal
Civil Division
House of Lords
EUROPE
Criminal Civil

36. © CHSS 2003
Ref: SC/086/V1
Employment Tribunals
Comprises of
Legally qualified chairman
Union representative
Management representative
Powers
Affirm, Cancel, Modify …….any Notice
Compensate / reinstate Safety Reps
Appeals
Must be made within 21 days
Improvement notice lifted during appeal
Prohibition notice stays in force during appeal
Other H&S matters
Safety Reps complaints