Health and Safety legal update HHSEG February John Mitchell Partner, Regulatory Risk & Compliance

Transcription

1 13/03/2017 1

2 Health and Safety legal update HHSEG February 2016 John Mitchell Partner, Regulatory Risk & Compliance

3 Contents In the pipeline Sentencing cases Principles of compensation Vicarious liability Prohibition notices Workplace regs Time off for safety representatives Occupiers liability 13/03/2017 3

4 In the pipeline Consultation on making the FFI dispute process independent of HSE 13/03/2017 4

5 Large fines Concocophillips fined 3m for repeated gas leaks on offshore platforms CRO Ports London fined 0.5m for a serious injury arising from a capstan Watling Tyre Services fined 1m for a fatality caused by an exploding tyre 13/03/2017 5

6 Sentencing Council guidelines 9 step test: 1. Offence category 2. Starting point and fine range 3. Proportionality to means 4. Other factors 5. Statutory reductions 6. Discount for guilty pleas 7. Compensation and ancillary orders 8. Totality 9. Reasons 13/03/2017 6

7 Sentencing Guidelines: Offence category Culpability (very high, high, medium or low) Harm category (1, 2, 3 or 4) derived from: A matrix combining: Seriousness of harm risked (A: death or lifelong dependency, B: significant permanent impairment, or C: less than A or B) Likelihood of harm (high, medium or low) Then adjusted for these aggravating factors: Exposure of number of people to the risk Offence a significant cause of actual harm 13/03/2017 7

8 Sentencing Guidelines: Starting point and category range Determine the size of the undertaking by reference to turnover: Large: > 50m Medium: 10m - 50m Small: 2m - 10m Micro: < 2m 13/03/2017 8

9 The matrix Starting point Category range Very high culpability Harm category 1 Harm category 2 Harm category 3 Harm category 4 1,600, , , ,000 1,000,000 4,000, ,000 2,000, ,000 1,000,000 90, ,000 High culpability Harm category 1 Harm category 2 Harm category 3 Harm category 4 950, , , , ,000 2,500, ,000 1,200, , ,000 50, ,000 Medium culpability Harm category 1 Harm category 2 Harm category 3 Harm category 4 540, , ,000 50, ,000 1,300, , ,000 50, ,000 20, ,000 Low culpability Harm category 1 Harm category 2 Harm category 3 Harm category 4 130,000 40,000 14,000 3,000 75, ,000 14, ,000 3,000 60,000 1,000 10,000 9

10 Sentencing Guidelines: In practice case 1 Large manufacturing business Employee trapped hand in machine due to poor guarding HSE said: Medium culpability, Harm Cat. 3 (level B harm, medium likelihood) Starting point 300k, range 130k - 750k Defendant said: Low culpability, Harm Cat. 4 (level B harm, low likelihood) Starting point 10k, range 3k - 60k Judge agreed with defendant, giving benefit of doubt Fined 60k, at the top end as borderline 13/03/

11 Sentencing Guidelines: In practice case 2 Small building business - Employee fell down a hole due to poor planning HSE said: Medium culpability, Harm Cat. 2 (level A harm, medium likelihood) Starting point 54k, range 25k - 230k Defendant said: Low culpability, Harm Cat 3 (level A harm, low likelihood) Starting point 3k, range 0.7k - 14k Judge found: Medium culpability, Harm Cat 3 (level A harm, low likelihood) Starting point 24k, range 12k - 100k Fined 16k 13/03/

12 Sentencing Guidelines: In practice case 3 Micro asbestos contractor failed to use enclosures when appropriate HSE said: High culpability, Harm Cat. 1 (level A harm, high likelihood) Starting point 160k, range 100k - 250k Defendant said: Medium culpability, Harm Cat 3 (level A harm, low likelihood) Starting point 14k, range 6k - 25k Judge found: High culpability (just), Harm Cat 2 (level A harm, medium likelihood Starting point 54k, range 30k - 110k Fined 16k 13/03/

13 Principles of compensation Greenway -v- Johnson Matthey The claimant was a chemical process operator He became sensitised to platinum salts His employer removed him from working with platinum salts The removal reduced his earning potential He sued his employer for loss of earnings He lost in the High Court on the grounds that he had suffered no physical injury The Court of Appeal affirmed the decision 13/03/2017 Jul

14 Vicarious liability prisons Cox v MoJ Claimant was a prison catering manager Some of her staff were prisoners A prisoner accidentally dropped a sack on her She sued the prison service The prison service defended the case on the basis that the prisoner was not an employee and they were not liable for his acts 13/03/2017 March

15 Vicarious liability attack by employee Mohamud v Wm Morrisons Claimant was a customer of the supermarket petrol station He was subjected to a racist attack by the station attendant He sued Morrisons as the attendant s employee Morrisons defended the case on the basis that there was no connection between the employee s acts and his employment 13/03/2017 May

16 Prohibition notice work at height Wilcox v Survey Roofing Group Employer contracted to work on a roof with fragile roof lights He engaged sub-contractors The precautions for working at height consisted of training An HSE inspector imposed a prohibition order in relation to the risk posed by the roof lights, not knowing about the training The employer appealed using the training as evidence The issue was what information should form the basis of the tribunal s decision 13/03/2017 Apr

17 Workplace Regs Cruz v Chief Constable of Lancashire Claimant was a civilian detention officer Helping others to put a detained person into a cell The cell door was only partially open When the claimant went to open it fully with one hand, the DP renewed her efforts to get free They all fell on the floor and the claimant s wrist was injured She claimed damages on the grounds that there was a breach of r. 5 of the Workplace regs. 13/03/2017 Apr

18 Workplace Regs Cruz v Chief Constable of Lancashire Regulation 5 says: The workplace and the equipment, devices and systems to which this regulation applies shall be maintained (including cleaned as appropriate) in an efficient state, in efficient working order and in good repair.. Claimant alleged that because the door was not flush against the wall of the corridor, the corridor was not maintained in an efficient state 13/03/2017 Apr

19 Workplace regs traffic routes Shackleton v M-I Drilling Fluids Claimant was an office worker He arrived at work to find some boxes in his office that did not belong there In moving them he tripped on the edge of a small indentation which had been under a mat He claimed under r. 12 of the Workplace Regs The court dismissed the claim on the ground that the indentation was too small to breach r /03/2017 Jun

20 Time off for safety representatives Rowe v London Underground Claimant sued LU for not allowing him time off work as required by the Safety Representatives and Safety Committees Regulations 1977 LU was found to be in breach of its obligations The Tribunal made a declaration to that effect, but did not award compensation The claimant appealed claiming damages for injury to feelings The EAT rejected the appeal 13/03/2017 Oct

21 Occupiers liability Rule v Hazelhaw Properties and anor Claimant was the defendant s employee At her place of work there was a service yard Across the service yard there was a trench containing electricity cables The trench was leased to Scottish Power The trench was surfaced with metal plates The claimant fell when walking across the yard due to a plate tipping up She sued her employer and Scottish Power 13/03/2017 Nov

22 Occupiers liability English Heritage v Taylor Claimant was a visitor to Carisbrooke Castle He climbed down an unofficial path off one of the firing platforms He lost his footing, rolled down the slope, across the grass pathway at the bottom and down a sheer drop into the moat The sheer drop was not visible at the point that he began his climb down EH appealed against the award of damages 13/03/2017 May

23 Occupiers liability G4S Care v Manley Claimant was a prisoner in a cell He suffered from a disability of reduced mobility He was injured when he fell over during an internal power outage which caused the lights to go out The court found that: The premises were not reasonably safe during the outage The defendants should have had a better system of restoring lighting to those who needed it during a long outage The defendants appealed 13/03/2017 Sep

24 Occupiers liability Edwards v Sutton LBC Claimant was pushing a bike across an ornamental bridge in a park The bike moved away from him He lost his balance, fell over the edge and was injured He claimed that the Council should have: Provided higher parapets; or Warned of the low parapet The court at first instance awarded damages The Council appealed 13/03/

25 Health and Safety legal update HHSEG February 2016 John Mitchell Partner, Regulatory Risk & Compliance