Health and safety update

On 31 October 2013 the Health and Safety Executive (HSE) published its health and safety statistics for 2012/2013. The statistics reflect the fact that construction continues to be a very high risk industry in terms of injuries and fatalities.

There were overall 148 fatal accidents in 2012/13. Analysing the figures, and taking into consideration that construction only accounts for approximately 5 per cent of the employees in Britain, it is striking to note that the figures demonstrate that the construction industry still accounts for 27 per cent of all fatalities and 10 per cent of all reported major injuries.

The figure of 148 worker deaths in 2012/13 is 18 per cent lower than the previous five year average of 181 deaths per annum and equates to a death rate of 0.5 deaths per 100,000 workers. However, some sectors reported an increase in the average fatality rate. For example there were 10 reported fatalities in the waste and recycling industry, which is 40 per cent higher than the previous five year average of six fatalities per year.

Significant issues

The greatest number of deaths, an overwhelming 59 per cent, were due to falls from height. This demonstrates that despite stringent regulations being in place until now to prevent falls, there are clearly very significant issues regarding adherence to health and safety regulations relating to fall prevention and arrest.

There were 175,000 over-7-day absence injuries reported under the Reporting of Injuries, Diseases and Dangerous Occurrences Regulations (RIDDOR) and 78,000 other injuries reported. According to the figures there were 1.1m working people suffering from a work-related illness or injury and 27m working days lost due to work related illness and workplace injury. The HSE estimates that (excluding cancer) these types of injuries and illness cost an estimated £13.8 bn in 2010/11.

Section 69 of ERRA

It is clear from the data that there is still a very long way to go in terms of protecting workers’ health and safety at work. This writer has concerns that with Section 69 of the Enterprise and Regulatory Reform Act 2013 (ERRA) now in force, the number of workplace accidents, including those leading to fatalities, may rise in the coming years. This is due to the likely erosion of adherence to health and safety regulations by employers now that an injured person cannot rely upon breach of regulations alone to bring a claim.

The publication of the HSE figures occurred just 30 days after the ERRA 2013 coming into force. Part 5 of ERRA is entitled ‘Reduction of Legislative Burdens’. This is a title which will give rise to much concern amongst workers, particularly those who are injured at work, and will cause upset to the families of those people who are killed as a result of an accident at work.

Given the current level of significant injuries and deaths at work, it concerns the author that removal of the ability of a worker to rely upon breaches of health and safety regulations to bring a claim will lead to complacency on behalf of the employers in respect of safety standards. The rationale behind this concern being that, if a breach is less likely to lead to a claim, then adherence to the regulations and ‘taking short-cuts’ will become more acceptable as a result of there being a potential lack of significant consequences to an employer for a breach. The figures in coming years will have to be carefully analysed to ascertain whether the changes brought in by section 69 of the ERRA does lead to lower safety standards in the work place.

Construction sites

It is interesting to note that in September 2013, prior to the ERRA coming into force, the Health and Safety Executive undertook a month long safety drive, visiting and checking 2,607 construction sites nationwide. HSE Inspectors were tasked with looking closely at how high risk activities, such as working at height and the control of exposure to harmful materials, were being managed.

On 1,105 sites the HSE Inspectors found that basic safety standards were not being met, i.e. more than 42 per cent of sites visited. Disturbingly, there were 539 prohibition notices served on employers which ordered dangerous activities to cease immediately and 414 improvement notices were issued requiring standards to improve.

The majority of sites visited were run by small and medium-sized enterprises, which have fewer than 15 people on site. During 2012/13 the number of deaths on such sites accounted for approximately 75 per cent of fatalities.

The HSE’s Chief Inspector of Construction, Heather Bryant said: “It is disappointing to find a significant number of sites falling below acceptable health and safety standards, where our inspectors encountered poor practice this often went hand in hand with a lack of understanding.”

‘Over-compliance’

The HSE findings are alarming to say the least, particularly since the HSE’s chief inspector of construction confirms that ‘lack of understanding’ went hand in hand with poor practice. The government has rationalized the introduction of section 69 of the ERRA and erosion of health and safety legislation by stating that there is often ‘over-compliance’ with the health and safety regulations. The phrase ‘over compliance’ is of course unhelpful, there is either compliance or there is not. However, it is difficult to believe that there is ‘over-compliance’ with the regulations if more than four in 10 construction sites are failing to adhere to basic safety standards.

Now that ERRA has come into force, despite the fact that regulatory breaches can still be raised, they are not reliable in themselves and alternative allegations will have to be pleaded in order to pursue a claim. It seems rather nonsensical that an employer has a duty to adhere to health and safety regulations, but an injured worker then has no ability to point to breach of that regulation to bring a claim.

Alternative approaches

Alternative ways to demonstrate negligence will now be required, for example, where employers are emanations of the state (e.g. a hospital), there will be a renewed reliance by injured persons on EC directives to demonstrate failure on the part of state bodies to adhere to duties placed on them by European Legislation. Where there is faulty work equipment, reliance will be placed on old legislation which has not been superseded or repealed, such as the Employers’ Liability (Defective Equipment) Act 1969.

These methods to demonstrate negligence on the part of an employer will lead to increased costs in pursuing a claim. Unlike previously, when an injured person would simply rely upon evidence of breach of the regulations to bring a claim, they will now require important additional information and records, for example details of previous accidents, risk assessments or maintenance records.

These are usually held with the employer. Without access to these records the injured worker will find it difficult to bring a successful claim. Although these records can become available as litigation proceeds, significant costs are likely to be incurred before these are made available.

Cost burdens

The government’s intention for the ERRA to reduce costs burdens on business may not be that straightforward. Although the ERRA may prevent some injured persons bringing claims, of those claims that do proceed, the complexity of investigating and proving cases will increase costs. Of those claims that can no longer proceed, then the cost of assisting an injured person will be picked up by the state and ultimately by the tax-payer, rather than the insurance sector who are paid premiums to insure against risk.

It remains to be seen how the changes brought in by the ERRA will affect injured people, their families, businesses, insurers and the taxpayer, since new accidents occurring after 1 October 2013 will take some time to come to trial. However, it is obvious that, as a result of the ERRA, vulnerable individuals are being put at risk, both financially and physically. SJ

 

Zahra Nanji is a solicitor at Leigh Day

www.leighday.co.uk