What happens when you don t have effective management systems to prevent workplace injuries?

Transcription

1 What happens when you don t have effective management systems to prevent workplace injuries? Presented by Louise Roberts 18 October Offices in 18 Countries

2 2 Breach of the Law

3 Criminal Law - The Health and Safety at Work etc Act 1974 An Enabling Act European Directives Enabling Act Regulations A.C.O.P.s Guidance Notes 3

4 Criminal Law - Manslaughter Gross negligence manslaughter Corporate manslaughter - Death - Gross breach of relevant duty of care - Failings attributable to senior management 4 4

5 Common law and civil law Statutory duties Duty of care Negligence Vicarious liability Contributory negligence 5 5

6 6 Accidents

7 Health and Safety getting it wrong What is an accident? An accident is an unplanned event which results in injury, damage or loss 7

8 2010 / 2011 UK Statistics 171 workers killed in the workplace 4000 people died as a result of past exposure to asbestos 1 million workers injured 1.2 million workers suffering from work-related ill health 26.4 million working days lost 25,000 people forced to give up work Workplace injuries and ill health (excluding cancer) cost British society an estimated 14 billion (in 2009/10) 8 8

9 Cost of accident Direct and indirect costs Insured and uninsured costs

10 10 Managing the investigation

11 What to expect Shock Paralysis Guilt Suspicion Self protection Surprises Management time 11

12 Managing the Investigation Not a good way to approach the morning from hell 12

13 Managing the investigation Be ready Key Actions:- Appoint incident controller Educate employees Notify regulator who to liaise with Identify employees to be interviewed Copy all documents requested/seized Appoint a solicitor Appoint and brief internal investigation team 13

14 Internal Accident Investigation Aims: (a) Prevent a prosecution (b) Mount a defence against any prosecution (c) Mitigate any sentence following conviction Need to identify: Immediate cause Root causes Need to consider: When should it be carried out? Who should carry it out? What should be identified? What evidence should be gathered? Legal Advice/Legal professional privilege 14

15 Accident Investigation Often lacking detail and one dimensional: Duration of the breach Profit motive Knowledge of breach Warnings gone unheeded Previous accidents/near misses Enforcement action Letters of advice Advice from external H&S consultant Advice from H&S department Audits (internal/external) Can also be over critical 15

16 Managing the investigation Other Steps to be carried out:- Does the incident need reporting under RIDDOR? Notify the company s insurers. Contact the Coroner and deal with the Inquest. Monitor the press. 16

17 Managing the Investigation Be Ready- Be Early- Retain Control 17 Know the law Know how the regulator is likely to approach the case Get legal advice Assess strengths and weaknesses of the case Create a strategy Be realistic

18 18 Enforcement action

19 The Regulatory Body s Investigation The Work Related Deaths Protocol Police take the lead in terms of investigating potential manslaughter charge Police will work together with other regulator who will be investigating potential health and safety offences CPS decide whether to prosecute Possible targets for enforcement action under the HSW Act:- The corporate employer Directors, managers, the company secretary or other similar officer Other persons 19

20 Powers of Police Power of Arrest Power to Search only: With consent Under a search warrant Without a search warrant in specific situations Power to seize and retain for so long as is necessary in all the circumstances 20 20

21 Powers of enforcement officers Enter premises at any reasonable time Take samples, measurements, photographs etc, and carry out tests Direct that areas be left undisturbed Inspect and take copies of documents Interview any person - As a potential witness Section 9 CJA - Under Section 20(j) HSWA - Under caution PACE interview - To give an interview or not to give an interview - The voluntary written submission - The follow up Seize and destroy or make harmless anything which they believe to be an immediate serious risk Require any person to provide any other facility that the person can give to assist the inspector 21 Obstruction it is an offence to intentionally obstruct an Inspector in the exercise or performance of his powers or duties

22 Options for enforcement officers Informal - Advice Formal - Written letter - Improvement notice - Prohibition notice - Prosecution - Sufficient evidence to secure a conviction - Limited Defences for health and safety offence - Reasonable practicability -Reverse burden of proof - In the public interest Charging scheme

23 Penalties for non-compliance Health and Safety Offences Magistrates' Court - up to 20,000 and 6 months in prison for most offences Crown Court - Unlimited fine and up to 2 years in prison for most offences Corporate Manslaughter - Unlimited fine - Remedial and publicity orders Gross Negligence Manslaughter - Imprisonment - Fines 23

24 Costs Under Criminal Practice Rule 76.5, the court is entitled to order a convicted defendant to pay the costs of the prosecutor in bringing the case against it. The purpose of an order for costs in criminal proceedings is to compensate the prosecutor and not punish the defendant - R v Northallerton Magistrates Court, ex parte Dove [2001] Cr App R (S) 136 R v Martyn Crute [2011] EWCA Crim 3233 gas safety prosecution fine 2,000 costs 41,000 appeal on costs only C of A substituted proportionate costs of 15,000 (plus 10,000 attributable to unreasonable conduct of Defendant) 24 24

25 Civil Claims In the event of the employer being negligent, the injured party may sue for damages and be awarded compensation 25

26 Recent cases Criminal R v Lion Steel Equipment Limited (2012) Defendant s employee was killed when he fell through the roof of the Defendant s premises. Defendant was charged with and pleaded guilty to corporate manslaughter. H&S charges against company and charges against directors dropped. Judge imposed fine of 480k after taking into account: The guilty plea; and The effect of the fine upon the viability of the Defendant s business and the knock-on implications for the jobs of its 142-strong workforce 26

27 Recent cases Criminal R v Tuffnells Parcels Express Ltd [2012] Tuffnells had pleaded guilty to a breach of s. 2(1) of HSWA The company appealed against the fine of 150,000 imposed by the Crown Court, on the grounds that the judge: Placed excessive weight on risks that did not result in injury; Gave inadequate credit to Tuffnells mitigation. The Court of Appeal said that the judge was entitled to place weight on those failures that were not causative of the incident The offence is comprised not merely of failures causative of an accident, although that is an aggravating feature, but by the careless running of risk.. Each of the factors identified by the inspectors was relevant to the assessment of seriousness. The Court of Appeal therefore dismissed the appeal. 27

28 Recent cases Criminal Shell R v Shell International 2 unrelated fires caused by contractors in January 2007 no injuries 13 breaches of the RRO 2005 Guilty Pleas to Article 9 (Risk Assessment) and Article 17 (Maintenance) 4 counts not guilty verdict defence costs awarded (lesson to prosecutors not to over indict) Fine 300,000 record breaking and out of line with earlier cases 28 28

29 Recent cases - Criminal R v New Look Retailers Limited [2010] EWCA Crim April 2007 fire at central London Store 400 people evacuated, no injuries 35 charges reduced to a plea to Art 9 (inadequate risk assessment) and Art 21 (inadequate training) Fines 400,000 record breaking - excessive fine given approach to H&S Appeal CA dismissed as serious and lamentable Howe applied High turnover (pre-tax profit 200 million, turnover 1 billion) SGC guideline does not set tariff 136,000 costs - go back to fire authority - incentive to prolong proceedings - rate of costs charged higher than cost to authority

30 Recent cases Criminal Curver UK Limited Fined 160,000, 32,162 costs after a process technician was crushed between two platens on a horizontal injection-moulding machine Admitted breaching reg 11(1) of PUWER Truro Crown Court rejected arguments from Curver that it s breach had not caused the death because the victim had not followed safety procedures 30 30

31 Recent cases Criminal Network Rail fined 5 million in 20 days Death of a passenger in a train derailment near Graygigg, Cumbria in 2007 Derailment caused by Network Rail s failure to maintain and carry out adequate inspection of fixed stretcher bar points, required in order to permit a train s wheel flange to pass through. Pleaded guilty to a breach of s. 3(1) of the HSW Act Fined 4 million for failures. 31 Deaths of 2 teenagers in 2005 at the Elsenham station footpath crossing A 2001 risk assessment highlighted that the crossing was undesirably risky and a 2002 report recommended the installation of new gates that automatically locked as trains approached Fined 1 million for failures Network Rail were guilty of narrow thinking, culpable of corporate blindness and a complacency going beyond merely inefficient incompetency to entering the realm of criminal failure

32 Recent cases - Civil Mark Brynmor Whitehead v Trustees of the Chatsworth Settlement (2012) Gamekeeper sustained injuries after two cartridges discharged into his calf after fall from wall. Against best practice, he was carrying the shotgun broken over his arm with a live cartridge in each barrel Defendant had, identified risk and issued instructions had no cause to think that employee was adopting an unsafe practice Not reasonably practicable to prevent exposure to risk - instructions and training provided were such that the risk to which the employee was exposed was adequately controlled Employer not in breach of duty under the Provision and Use of Work Equipment Regulations 1998 reg 12(1) 32 32

33 Recent cases - Civil Lee Nutting v Andrews Haulage (Midlands) Ltd (2011) Employee injured after falling from lorry after losing balance Nutting alleged that employers breached duties under Workplace (Health, Safety and Welfare) Regulations 1992 reg 11(3), the Provision and Use of Work Equipment Regulations 1998 reg4(1) and common law Court found that accident could not be attributed to a breach of statutory or common law duty but rather Nutting s loss of balance. Geary v JD Weatherspoon Claimant fell from banister in pub after sliding down it like Mark Poppins Law Defendant not liable if Claimant voluntarily exposes themselves to an obvious danger 33

34 Conclusion Failing to have effective management systems to prevent workplace injuries will probably put you in breach of the law, will increase the risk of accidents and will expose you to enforcement action. If accidents happen, be prepared. 34

35 Contact Louise Roberts Associate T: M: F: E: 35