An Introduction to Health and Safety Law

A Student Reference

David Branson

• Publisher: CRC Press
• Year: 2014
• Print ISBN: 9781138431089
• eBook ISBN: 9781317674597
• Edition: 1
• Topic: Technology & Engineering
• Subtopic: Law Theory & Practice
• Index: Technology & Engineering

An Introduction to Health and Safety Law provides a clear, concise overview of health and safety law in the United Kingdom. With reference to the European Union, this book discusses criminal and civil liability at length to provide a clear understanding of this area of law which has been subject to change over the 20 years.

Key case studies and statistical information on prosecutions, fines and enforcement notices help to contextualise health and safety law to provide students and professionals with a full understanding of health and safety law in the UK.

This book includes chapters on:

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• the legal framework

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• criminal liability

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• enforcement of criminal liability

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• civil liability

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• civil remedy

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• subordinate legislation.

This book is an essential reference for students studying towards NEBOSH qualifications and students studying at university level. It provides a comprehensive understanding of UK health and safety law and will be a useful reference when entering the professional field.

1 The legal framework

Introduction

In this chapter, I would like to look at the basic legal structure in the United Kingdom, as it affects the law of health and safety. I will start by looking at the difference between Criminal and Civil Law, before discussing the sources of law and the adjudication system. In Chapter 6 I will discuss the enforcement system for criminal liability as well as the role of the regulatory authorities, such as the Health and Safety Executive (HSE) and the local authorities, while in Chapter 7 I will look at the nature of the civil remedies available.

The types of law

Most legal systems, including that of the UK, are divided into Criminal Law and Civil Law systems. These two areas of law are very different in their nature, having a different purpose, different methods of adjudication and a different outcome. The problem is that these areas of law are inherently linked in health and safety, thereby leading to considerable confusion. The Lofstedt Report¹ into health and safety law proposed a number of changes, including, most controversially, the ending of the right to sue for breach of the strict liability statutory duties as implemented by the Enterprise and Regulatory Reform Act 2013. This will mean that some of the overlap between Civil and Criminal Law will now be of less importance, although it remains to be seen how the courts interpret the Common Law liability in the light of this change.

Criminal Law

The purpose of Criminal Law is to protect the public from harm, and that is why the state, through its various agencies, takes such a prominent role in the criminal process, not only providing the court structure, but also initiating the legal process by undertaking a prosecution. The underpinning aim here is deterrence, imposing punishments on those parties who breach the law in order to dissuade others from following suit. The key role of publicity is important, and the HSE will put convictions on their website to help bring this information to the notice of other parties. It is also the case that a criminal conviction may make it difficult for a party to obtain future contracts, as there is the possibility that they may re-offend and, in that case, implicate the party they work for. In this way, the effect of a criminal prosecution is quite significant and businesses will strive to avoid a prosecution where possible.

In health and safety cases, the prosecution is usually initiated by the HSE or the local authority, or in the case of prosecutions for manslaughter, by the Department of Public Prosecutions (DPP). The case is brought to ensure that the standards of health and safety are maintained, so there is no requirement for a party to have suffered injury for a case to be brought.

Criminal Law in health and safety

GENERAL LIABILITY

In health and safety law, criminal liability itself falls into two main categories. First, there is a general liability under the Health and Safety at Work etc. Act 1974 (HSWA), and in respect of death at work under the Corporate Manslaughter and Corporate Homicide Act 2007 (CMCHA). Both of these pieces of legislation impose liability as regards the failure of the organisation to manage health and safety effectively.

Under Section 2 of HSWA the employer has a duty to ensure ‘the health, safety and welfare at work of his employees’; while under Section 3 the employer has to ‘conduct his undertaking in such as way as to ensure … that persons not in his employment … are not thereby exposed to risks to their health and safety’. The focus here is on how the enterprise is managed to ensure the health and safety of employees and this general duty is to some extent further explained in Section 2(2) of the act. Here the duties are: to provide and maintain safe plant and systems of work; to provide adequate information, training and supervision; to maintain a safe place of work; and to provide and maintain a safe working environment. These duties are based on the Common Law duties laid down in Wilsons and Clyde Coal Co Ltd v English (1938) and are very general in scope.

The other generalised area of criminal liability is the law on manslaughter, which may impose both an individual or corporate liability. Previously this involved liability at common law, but this has been supplemented by statutory liability under CMCHA. This legislation imposes a liability on any organisation that fails to effectively manage health and safety, resulting in the death of any person to whom they owe a duty of care. Like HSWA, the legislation focuses on the management of health and safety and is very general in nature. However, unlike HSWA, it is result-driven, in so far as liability is determined by the consequences of the breach. Therefore there is no liability under the act if there is no fatality, even if the end result is serious injury or no injury at all. This is quite different from HSWA or the subordinate legislation, where liability is based on the failure of the organisation to manage health and safety itself, independent of the consequences.

SPECIFIC LIABILITY

This generalised liability is supplemented by a wide range of subordinate legislation, usually passed under Section 15(1) of HSWA. These cover a wide variety of situations broadly based on specific hazards. So, for example, machinery safety is covered by the Provision and Use of Work Equipment Regulations 1998 (PUWER); safety of the workplace is covered by the Workplace (Health, Safety and Welfare) Regulations 1992 (WHSWR) and the problem of noise by the Control of Noise at Work Regulations 2005 (CNWR). These regulations impose liabilities that may be strict, as under Regulation 5 of PUWER, or may be qualified by the term ‘reasonably practicable’, as in Regulation 12(3) of WHSWR.

Civil Law in health and safety

The purpose of Civil Law is quite different from Criminal Law. Here, the main aim is to provide a remedy for persons who have suffered a loss, such as being injured at work. The legal action is designed to enable the claimant or his dependants to obtain financial compensation from the defendant. In cases of accidents at work, this is normally paid out of an insurance policy, which employers are required to have by law in respect of their employees, by virtue of the Employers Liability (Compulsory Insurance) Act 1969.

In Civil Law, the courts are mainly concerned to ensure that an injured party obtains some redress. This has meant that the courts have been ready to modify the law in order to facilitate this. Over the last few years many of the defences to liability have been restricted, such as volenti (or consent) and contributory negligence. In addition, the rules on legal causation have been relaxed to allow claimants to pursue actions for compensation in respect of work-related diseases, where it is not really possible to prove a direct causal relationship, due to the limitations of scientific knowledge. This can be seen in the mesothelioma cases such as Fairchild v Glenhaven Funeral Services Ltd (2002). The position nowadays in law is that it is very difficult for an employer to avoid liability in respect of a claim for an injury caused at work. In effect, we have created a kind of strict liability regime.

GENERAL LIABILITY (NEGLIGENCE)

In Civil Law, there is a general liability under the common law Tort of Negligence (Delict in Scotland), although it is always possible to bring an action for breach of the contract of employment as an employee. The liability in tort was developed in the nineteenth century in cases such as Smith v Baker & Sons (1891), which severely limited the defence of volenti. In addition, the doctrine of common employment, which held that an employer was not liable for the actions of his employees, was effectively abolished by Section 18 of the Law Reform Act 1936. Finally, the defence of contributory negligence, which had been a complete defence, was restricted to a partial defence in the Law Reform (Contributory Negligence) Act 1945.

The cumulative effect of all these developments was that the Tort of Negligence became the key means for an employee to claim compensation for injury at work. In order to claim in Negligence, it is necessary to prove three key elements of the Tort; the existence of a duty of care, the breach of that duty and an injury arising from the breach. The nature of the duty of care is as set out in Wilson and Clyde Coal v English (1938), and this involves the provision of safe plant and equipment, safe systems of work, a safe place of work and competent fellow employees, these being of course the basic elements of the later criminal liability as set out in Section 2(2) of HSWA. Later Civil Law cases have widened the duty of care, to include adequate supervision and a duty to provide a safe working environment. The defendant will be in breach if he fails to act as a ‘reasonable’ employer. This in theory creates a fault-based liability, and this is underpinned by the fact that the liability is only applied in respect of any loss that is ‘reasonably foreseeable’.

However, as regards personal injury, the above position is modified by the so-called ‘egg shell skull’ rule. This requires the defendant to take the victim as he finds them, making them liable for the full consequences of any reasonably foreseeable injury, even if the medical consequences are unforeseen. For example, in the case of Smith v Leech Brain & Co. (1962), the defendant was liable for a fatal cancer caused to the claimant as a result of a splash of molten metal on his lip. As the injury to the lip was seen as reasonably foreseeable, the defendant was liable for the full consequences of the injury, however unforeseeable it might have been.

GENERAL LIABILITY (CONTRACT)

Although the wide scope of the Tort of Negligence has meant that it has been used preferentially as the means of redress in the case of injury at work, there is always the alternative of an action for breach of contract. Under the Contract of Employment a duty of care equivalent to that in Negligence is implied into the contract. Moreover, the limitation period, or period in which an action can take place under contract is six years, compared to three years in the Tort of Negligence. However, where the injury is latent, such as an industrial disease, an action in Negligence is a better option because the three-year period runs from the time the injury is discovered and the defendant has been identified, a situation that may occur after many years with a disease such as asbestosis. Such an extension is not possible in Contract Law, so it cannot be used for this purpose.

The main benefit of an action for breach of contract is that it can take place in the jurisdiction where the contract is deemed to apply, whereas an action in the Tort of Negligence can only be brought in respect of an action in the UK. Therefore it is possible to use an action in Contract Law where the claimant is working outside of the UK, but under a contract made under UK law, as in the case of Matthews v Kuwait Bechtel Corporation (1959). However, an action can still only be brought if there is a contract, and this may not always exist.

GENERAL LIABILITY (NUISANCE)

There is also a general liability under the Tort of Nuisance, which mainly deals with damage to property rather than injury to persons. This involves the Torts of Private Nuisance and Public Nuisance, the first of which is essentially a land based Tort, but the latter of which gives rise to actions by a group of persons who suffer special damage, and this can include personal injury. Of particular importance is the specialised action in the tort of Rylands v Fletcher, which imposes strict liability for the release of dangerous substances onto a person’s land, a matter which is of some importance for health and safety.

The recent case of Cambridge Water Co. Ltd v Eastern Counties Leather PLC (1994) has modified the nature of the liability under the tort of Rylands v Fletcher, by limiting compensation to damage that is reasonably foreseeable, thereby creating a liability not too different from the Tort of Negligence. Although this area of law is only indirectly related to health and safety, it is important to be aware of the key principles, as there are sometimes benefits in taking an action in Nuisance rather than Negligence. In particular, it is not possible to claim for pure economic loss or loss of profits in Negligence, but this may be possible in Public Nuisance. This may be of importance in the case of those who are self-employed, who may lose the opportunity to obtain future business when they are injured, especially if they cannot sue for breach of contract.

SPECIFIC LIABILITY (BREACH OF STATUTORY DUTY)

In addition to the general liability under the Tort of Negligence, it was possible until recently to take an action for breach of statutory duty, using the subordinate legislation used to impose criminal liability, such as PUWER or WHSWR. The regulations often allowed for civil as well as criminal liability, and they could be very useful to the claimant because they sometimes imposed strict liability, whereas Negligence is based on fault-based liability. In some cases, claimants were able to successfully pursue a claim for breach of a statutory duty when an action in Negligence was not possible. In the case of Stark v Post Office (2000) the claimant was injured by a defective bicycle where the fault was impossible to detect by normal inspection. As such, the employer could not be liable in Negligence as no ‘reasonable’ employer could have foreseen the accident. However, he was able to obtain a remedy under Section 6 of the then PUWER 1992, which required equipment to be maintained ‘in an efficient state, in efficient working order and in good repair’.

The statutory remedy is sometimes strict in nature, whereas the Negligence liability is fault-based. However, strict liability in Civil Law came in for criticism in the Lofstedt Report,¹ as imposing an unreasonable burden on employers, which was not intended by government. As a result, civil actions for breach of the health and safety subordinate legislation has now been abolished under the Enterprise and Regulatory Reform Act 2013 as referred to above. What will be interesting to see, is whether the courts still allow a level of strict liability by means of a wide interpretation of fault-based liability under common law Negligence. In addition, there are some statutes that impose purely civil liability, such as the Occupiers’ Liability Acts 1957 and 1984, but these only apply to the liability of an employer as an occupier of premises.

We can see that civil liability partly reflects the nature of liability in Criminal Law. In both cases, we have a general liability that is essentially fault-based in nature, based on what is ‘reasonably practicable’ for Criminal La...

Table of contents

• Cover
• Half Title
• Title Page
• Copyright Page
• Table of Contents
• Acknowledgements
• Table of cases
• Table of statutes
• Table of regulations and orders
• Introduction: the problem with health and safety law
• 1 The legal framework
• 2 Criminal liability for health and safety
• 3 Civil liability for Negligence and breach of statute
• 4 Contractual liability and the Tort of Nuisance
• 5 Subordinate legislation
• 6 Enforcement of criminal liability
• 7 Civil remedies
• 8 Conclusion
• Appendix: key cases
• Glossary of legal and medical terms
• Bibliography
• Index