iosh humber branch legal update brian pettifer 2 nd december 2015

IOSHHumber BranchLegal Update

Brian Pettifer2nd December 2015

Hague (HSE Inspector) v Rotary Yorkshire Ltd (2015)

•Unannounced inspection of a high voltage room at a construction site in Leeds - conductors found left exposed

•Inspectors could not be sure that the conductors were dead •Critically contractor in charge of the electrical work was unable to provide documentation that the conductors had been left dead

•Inspectors thought there was a risk of serious personal injury

•Served prohibition notice under s.22 HSWA, 1974 to prevent access to the room

Enforcement Notices


•Rotary’s appeal against the notice to the Employment Tribunal failed

•They then successfully appealed to the Divisional Court

•Judge said inspectors should have allowed the company to prove conductors were dead and could have issued a direction to leave undisturbed under s20(20)(e) of HSWA

Enforcement Notices


•The Court of Appeal overturned this decision and reinstated the notice

•They observed that the court could consider only issues of law and not fact

•CoA stated current approach was to ask whether facts which were known or ought to have been known by the inspector at the time he served the notice justified the inspector's decision

•The fact that the conductors were subsequently found to be dead was irrelevant to the inspector's decision at the time the notice was issued.

Enforcement Notices


•It is vitally important for businesses to be aware that all the relevant information is available to inspectors to best ensure the opinion they inform is an appropriate one.

Enforcement Notices

•s85 Legal Aid, Sentencing and Punishment of Offenders Act 2012 (LASPO) - came into force 12th March 2015

•Abolished cap on fines for health and safety offences dealt with in Magistrate's Court

•They now have the same unlimited sentencing powers as the Crown Court

•Aims to empower Magistrates to dispose of more cases - frees up Crown Court to focus on most serious cases.

•also applies to Construction Products Regs 2013 and Building Regs

Greater Powers to Magistrates

•From Criminal Justice and Courts Act, 2015 implemented through Prosecution of Offences Act, 1985 (Criminal Courts Charge) Regulations 2015

•Controversially requires Defendants convicted of offences to pay this charge

•Charge is on top of their legal fees, prosecution, costs fine and routine surcharge

•Ranges from £150 to £1,200 - varies whether the guilty plea entered at earliest opportunity or whether there is a conviction after a trial

•Charge is mandatory and seriousness of the offence, previous good character, and financial means, are irrelevant

Criminal Courts Charge

•Charges are on a sliding scale

•Conviction by Magistrate's Court (Single Justice Proc.) £150

•Magistrate's Court - summary offence - Guilty plea £150•Magistrate's Court - summary - proof in absence £150•Magistrate's Court - either way offence - Guilty plea£180•Magistrate's Court - summary - Convicted after trial £520 •Magistrate's Court - either way - Convicted after trial

£1000•Magistrate's Court - breach of Community Order, Suspended Sentence Order etc £100


•Charges are on a sliding scale

•Crown Court - Guilty plea £900•Crown Court - Convicted after the trial£1200•Crown Court - Committal for sentence £180 guilty plea/convicted £520•Absolute discharge; Hospital/Guardianship Order. nil


•Very unpopular with Courts and Court-users (i.e. lawyers, staff and defendants) alike.

•Significant number of magistrates have resigned in protest

•There is an increase in the number of repeat hearings forfailures to pay.


•The Construction (Design and Management) Regulations 2015. (CDM 2015) came into force 6th April 2015

•Replaces CDM 2007.

•Regs cover all building, civil engineering and engineering construction work including alteration, demolition and maintenance activities.

•Apply to the whole construction process from concept to completion in Great Britain and UK territorial waters.

New CDM Regs 2015

•Client - major influence on the way a project is procured and managed

•Has control over the contract, appointments and resources, including time and money.

•Clients can be either "commercial" or "domestic", and these provisions apply to both

•Domestic clients are those where the work relates to a home as opposed to a business

•Duty to appoint a designer and contractor

New CDM Regs 2015 – Client’s duties

•Must appoint principal designer and a principal contractor when more than one contractor involved

•Must take reasonable steps to ensure that they carry out their duties

•When the client does not appoint one or both, it must fulfil their duties

•Duration of appointment should take into account design work that may continue into the construction phase including issues that may arise that necessitate modifications to the designs


•Should ensure that principal contractor is fully briefed on design matters if principal designer finishes before end of project.

•Should ensure principal designer passes health and safety file to the principal contractor at the end of its appointment.


•Further duties provides pre-construction information as soon as is

practicable to every designer and contractor

ensures contractor (principal contractor) draws up a construction phase plan before construction begins

ensures principal designer prepares a health and safety file for projects with more than one contractor

informs HSE of projects that are notifiable (ie work scheduled to last longer than 30 working days; has more than 20 workers simultaneously at any point; or exceeds 500 person days)


•CDM 2015 guidance notes most clients, will not be construction experts "and for this reason they are not required to take an active role in managing the work"

•Nevertheless there is a long list of "suitable" arrangements that a client must make, maintain and review for managing a project

•Includes allocation of sufficient time and other resources

New CDM Regs 2015 – Management Arrangements

•“Suitable" management in CDM 2015 means

construction work can be carried out, so far as is reasonably practicable, without risks to the health and safety of any person affected by the project

sanitary and rest facilities provided for the construction workers


•Arrangements should cover:a) assembling the project teamb) ensuring roles, functions and responsibilities of

the project team are clearc) ensuring effective mechanisms in place for

members of project team to communicate and cooperate with each other and coordinate their activities

d) how the client will take reasonable steps to ensure the principal designer and principal contractor comply with their duties

e) setting out means to ensure health and safety performance of the designers and the contractors is maintained throughout the process


•Client must maintain and review its arrangements to ensure they remain relevant throughout the life of the project.

•When appointing designers and contractors, clients need to take reasonable steps to satisfy themselves that the appointees have necessary skills, knowledge, experience and, if an organisation, the organisational capability to fulfil their roles in a manner that secures the health and safety of any person affected by the project.


•HSE believes designers are important because they have strong influence during the concept and feasibility stage of a project

•Designer is an organisation (or person) that prepares or modifies a design for a construction project or arranges for or instructs someone else to do so.

•Can include architects, consulting engineers, quantity surveyors, and technicians.

New CDM Regs 2015 – Designers

•Designers, when preparing or modifying a design must use general principles of prevention and any pre-construction information to eliminate, so far as is reasonably practicable, foreseeable risks to the health and safety of any person who is:

carrying out or liable to be affected by construction work

maintaining or cleaning a structure using a structure designed as a workplace

•Where elimination is not reasonably practicable

reduce or control the risks through design; provide information about the risks to the principal

designer ensure health and safety info is in health and

safety file.

New CDM Regs 2015 – Designer’s Duties

•New duty holder - replaces the CDM Coordinator

•Responsibilities stretch from contract design through to the planning, and delivery of the construction work

•Principal designer coordinates work of others in the project team

•Ensures significant and foreseeable risks are managed throughout the design process

New CDM Regs 2015 – Principal Designer

•Principal Designer’s duties similar to the Designer’s

•In addition the principal designer must:

ensure all persons working at the pre-construction phase cooperate with the client, the principal designer and each other

establish that effective communication is occurring provide pre-construction information to every

designer and contractor appointed, or being considered for appointment to the project.


•Principal designer must liaise with the principal contractor for the duration of its appointment

•Where appointment of the principal designer finishes before the end of the project must ensure that the principal contractor has information that allows it to be:

aware of the risks that have not been eliminated in the design

understand means employed to reduce or control those risks

understand the implications for implementing the design and work during the remainder of the project.

•Principal designer should arrange for handover of the health and safety file to the principal contractor


•All persons with duties or functions under the Regs must cooperate with any person working on any project at the same time or on an adjoining construction site so that duties are complied with

•Anything they believe likely to endanger health or safety must be reported to the person in control

•Person in control should encourage workers to stop work and report dangerous conditions

•Regular project meetings can facilitate such cooperative behaviour.

New CDM Regs 2015 – Cooperating & Communicating

•CDM 2015 requires all information and instruction should be comprehensible

•Should be provided as soon as practicable and always before the work begins

•Should be in simple clear English and/or other languages where appropriate

•Amount of detail should be proportionate to: the scale and complexity of the project the health and safety risks the nature and purpose of the messages that need

to be communicated

New CDM Regs 2015 – Cooperating & Communicating

•A Principal Contractor (PC) must be appointed by the client when construction project involves more than one contractor

•The PC coordinates the construction phase.

•The PC must possess the skills, knowledge and experience to carry out the role

•The PC plans, manages and monitors construction phase to ensure that so far as is reasonably practicable the work is carried out without risks to health and safety

•The PC must take into account the general principles of prevention

New CDM Regs 2015 – Principal Contractor

•The PC must draw up a construction phase plan (or arrange for it to be drawn up) before setting up a construction site

•The plan sets out arrangements for securing health and safety, the site rules and any other measures concerning specified work - should cover topics such as:

PPE, parking, use of radios and mobile phones, smoking, restricted areas, hot works and emergency arrangements.

•The rules should be clear, easily understood and brought to the attention of everyone on site

•Rules should be translated into other languages when necessary


•PC must take account of risks to all who may be affected by the projects

•Must consider provision of plant and equipment, supervision and information, instruction and training, and resources (including time)

•Visible leadership should be demonstrated e.g. by regular planning meetings between the PC and contractors

•PC should ensure: suitable site inductions provided boundaries of the site defined and barriers erected

to prevent access from unauthorised persons at least minimum welfare facilities provided


•When 2 or more projects are taking place on the same site simultaneously but independently of each other:

essential there is clarity over who is in control during the construction phase in any part of the site at any given time

all PCs must cooperate with one another if one of them cannot be in overall control

PCs must coordinate their work and take account of any shared interfaces, for example traffic routes.

•The PC must ensure there is engagement so that employers are involved in decisions regarding health and safety

•HSE believes effective worker involvement develops from effective consultation and cooperation between the PC and other contractors on site


•Follow up of changes in coronial law brought about by Coroners and Justice Act 2009 and secondary legislation implemented on 25th July 2013

•Under the new rule 8 inquest must be completed within 6 months from the date on which the Coroner is made aware of the death or as soon as is reasonably practicable after that date

•Shown that inquests involving multiple parties, complex, or extensive evidence take much longer to conclude particularly when juries are required

•Remains to be seen what steps Chief Coroner will take to ensure target timescale achieved in most cases.

Coroner’s Court Issues

•Coroners obliged to provide disclosures to interested parties under Part 3 of new Inquest Rules

•Coroner must normally disclose copies of relevant documents to an interested party, on request

•Includes photographs, CCTV footage and paper documents

•Disclosures should be by electronic means wherever possible

•Categories of documents that should be enclosed to interested parties includes post mortem and expert's reports etc

•Exceptions where coroner may refuse to provide disclosure under Rule 15


•Coroner has duty under 2009 Act to report actions to prevent future deaths – report should:

be to a person who the coroner believes may have the power to take such actions

be done where the investigation reveals something which gives rise to a concern that there is a risk of deaths in the future

not specify what action should be taken to eliminate or reduce that risk

•Coroners can request response to PFD reports during investigations


•A PFD is best avoided- careful steps can be taken to convince a coroner against making one

•If one is made and response required, careful consideration should be given to legal and reputational implications and needs to demonstrate any improvement simply enhances a safety measure that already met required standards

•244 PFD reports issued between April and September 2013 - highest number in any six-month period

•Becoming more commonplace, particularly in cases involving deaths in hospitals or in care.


•Since 2013 Coroners increasingly driving forward investigations themselves

•They identify relevant witnesses and documents or highlight issues which may be relevant to the inquest

•They rely less on the police or HSE to gather evidence and present them with a report.

•Organisations need to be cautious, and if necessary seek legal advice, about providing statements and producing other evidence that could lead to prejudice or self-incrimination in other proceedings.


•Impact of separate guidelines for environmental offences since taking effect in July 2014 has been more or less as expected so far

•Apply specifically to waste and environmental permitting offences

•Court also pays regard to them when dealing with other environmental offences

•Separate guidelines for organisations and individuals

Sentencing Guidelines - Environmental

•Court considers the offence category i.e. deliberate, reckless, negligent or low/no culpability

•Size is calculated based on turnover: Large - £50m or more Medium - £50m down to £10m Small - £10m down to £2m Micro - less than £2m

•There is a sliding scale from £3m to £100

•For very large companies may be necessary to move outside the suggested range to achieve a proportionate sentence


•Example of application of new guidelines - fine of £250,000 imposed on Thames Water (TW) at Reading Crown Court

•Case involved sewerage from a pumping station leaked into a brook within an area of natural beauty over a 6 day period

•TW has a turnover of £1.9b and court regarded its offending as falling within the negligent category 3 bracket (starting point £60,000)

•TW's turnover greatly exceeded the £50m threshold for large companies so court applied a multiplier of five to fix a starting point of £300,000

•Mitigating factors that TW had already installed more robust pumps and had pleaded guilty at the first opportunity considered


•On appeal Court of Appeal on 8th December 2014 did not approve of this "mechanistic" extrapolation to arrive at the level of fine

•Emphasised that starting points to be adopted for very large companies, run for profit, are under Criminal Justice Act 2003: section 142 - the punishment of the offencesection 143 - the seriousness of the offencesection 164 - the financial circumstances of the offender


•The Court upheld the fine, concluding "We would have had no hesitation in upholding a very substantially higher fine“

•The court pointed out that the objectives of punishment, deterrence and the removal of gain must be achieved by the level of penalty imposed

•May well result in a fine up to 100% of the company's pre-tax net profit for the year even if this results in fines in excess of £100m

•Watch out for large fines!


•Sentencing Council's 3 month consultation on new sentencing guidelines for health and safety offences, corporate manslaughter and food safety and hygiene offences closed on 18th February 2015

•Section 125(1)of the Coroners and Justice Act, 2009 provides that when sentencing offences committed after 6th April 2010 every court:

a) must in sentencing an offender, follow any sentencing guidelines which are relevant to the offender's case, and

b) must in exercising any other function relating to the sentencing of offenders, follow any sentencing guidelines which are relevant to the exercise of the function, unless the court is satisfied that it would be contrary to the interests of justice do so.

Sentencing Guidelines – Health and Safety

•Guideline specifies ‘offence ranges’ i.e. the range of offences appropriate for each type of offence

•Within each offence, the Council has specified a number of categories which reflect varying degrees of seriousness

•Culpability is graded from: Very high (flagrant disregard for the law) High (falling short of appropriate standard) Medium (systems in place but not sufficiently

adhered to) Low (failings were minor or occurred as incidents)


•Harm is broken down into 3 categories: Level A - Death or significantly reduced life

expectancy or lifelong dependency. Level B - Physical or mental impairment with

significant long term effect. Level C - Less serious.

•Offender categories are divided into: Large (turnover of £50m and over). Medium (between £10m and £50m). Small (between £2m and £10m) Micro (not more than £2m).


•Penalties range from fines of £10m for large organisations to £50 for low culpability for micro organisations

•For very large companies (i.e. above £50m turnover) - there may be a proportionate sentence outside the suggested range

•At individual level including breaches of ss7, 36 and 37(1) of HSWA, 1974 there is a similar breakdown of culpability and harm

•Recent fines in health and safety cases have been as high as £700,000 against Sellafield, £500,000 against Network Rail and £200,000 against Southern Water


•Detailed survey by Pinsent Masons solicitors concluded no discernible increase in fines

•Until recently there was no tariff in health and safety cases and the court has a duty to consider not only the seriousness of the offences but also the means of the offender

•Advice from lawyers is that defendant companies should exercise more frequently their right to call evidence as part of its mitigation

•In some cases members of the board should be asked to explain its record of offending and the steps it has taken to reform itself.


•Mitigating factors include: no previous convictions high level of cooperation with the investigations evidence of steps taken voluntarily to remedy the

problem.

•Sentences range from 2 years custody to conditional discharge

•There are statutory aggravating factors including previous convictions, cost cutting at the expense of safety, and poor health and safety record

•For Corporate Manslaughter where the maximum fine in unlimited the offence range is from £180,000 to £20m.

•Guidelines also apply to Food Safety and Hygiene (England) Regulations 2013


•The first case of a s7 HSWA, 1974 immediate prison sentence occurred in 2015

•Involved HSE v Siday Construction Ltd and Sidebottom and Golding

•A ground worker was killed during a basement conversion project at a London town house in 2010

•A health and safety advisor, (Richard Golding) who provided health and safety services to the site by helping to write the method statement and carrying out the inspections, was convicted of a breach of s7 HSWA 1974

Custodial (Prison) Sentencing

•Underpinning was being carried out, and had been safely done before

•On this occasion HSE considered that site manager's actions fell well short of those expected of a competent person in that position and was convicted of gross negligence manslaughter


•Health and safety advisor was criticised for:

helping to prepare a method statement that was inadequate

Undertaking inadequate site inspections (the prescribed method of working was not being followed)

failing to ask any questions in relation to temporary works, principally in relation to the propping and shoring of open excavations

failing to stop works despite having the authority to do so

•In sentencing the safety advisor the judge said that his failure showed a staggering level of disregard for the workforce.


•The health and safety advisor went to prison for 9 months.

•In this case the site manager and the health and safety advisor were singled out for prosecution

•Other parties (principal contractor, the site supervisor, the architects and designers and the clients) were according to many, fortunate in not also having to face prosecution


•In the 41 year period since HSWA, 1974 came into force up to December 2014 there have been:

124 individual immediate or suspended sentences for work related health and safety cases

47 have been imprisoned for the Common law offence of manslaughter following work related death

37 of the 124 sentences imposed have been during the year to November 2014 alone and a further 26 in the previous year

•Law enforcement is showing its teeth!


•It is noticeable that legislation and common law development have been far less in last couple of years with Deregulation, Young, and Lofstedt and their fall-out providing plenty of grist to the Legal Update.

•We now seem to be experiencing a tightening of enforcement with s22, s7 HSWA 1974, and sentencing Guidelines in health and safety and environmental matters coming into play.

Legislation and Common Law Development

•What next?

•A Corporate Manslaughter case informing us exactly what `senior management' and the boundaries of who can be included.

•I do not forecast a quiet lull for you, I'm afraid, because the unexpected and the overlooked (e.g. road risk) are just around the corner and not to speak of any consequences of a possible Brexit.

Legislation and Common Law Development

Any Questions?

iosh humber branch legal update brian pettifer 2 nd december 2015

Documents

magistrates court breach

court of appeal

magistrates courtthey

rotary yorkshire

courts act

leeds conductors

prosecution of offences

safety offences