Update: health and safety

Reportable injuries

New RIDDOR reporting arrangements for reporting workplace injuries are under consideration and are due to go before Parliament early next year. The proposal is for fatal and major injuries only (resulting in more than seven days off work) to be reported by phone to the Health and Safety Executive (HSE), with all other work-related injuries reportable via one of seven online forms available on HSE's website.

The earliest any arrangements to change the current duty to report a three- to seven-day injury would come in to force is April next year.

The extension from a reportable injury being three days to seven days was recommended by Lord Young is his report 'Common Sense, Common Safety'. Lord Young considered that an extension to seven days would reduce the cost burden to businesses when dealing with reportable injuries.

But why have these changes been proposed? They would decrease rather than strengthen the protection to employees from preventable injury. Employers would still be legally obliged to record over three-day injuries but do not have to report them. This could lead to poor safety practices by certain companies going unnoticed where there is no public scrutiny or accountability of a companies safety record.

Foreseeability of risk

In the recent case of Tangerine Confectionery Ltd and Veolia ES (UK) Ltd v R [2011] EWCA Crim 2015, the Court of Appeal heard appeals brought by T and V and gave guidance in respect of employers' duties under section 2 of the Health and Safety at Work Act 1974 (HSWA) to ensure, so far as is reasonably practicable, the health, safety and welfare at work of all employees, and, under section 3, to ensure so far as is reasonably practicable that persons not employed are not exposed to risks to their health or safety.

T was prosecuted when an employee became trapped in moving parts of a machine in T's factory and died. At trial, it was questioned whether the employee had put himself in danger, and whether T should have foreseen that he would do so.

In the case against V, S, an employee of V, had worked alongside G, an agency worker. G was on foot, and S drove V's van behind G. When negotiating a post in the verge, S pulled the van out into the nearside lane of a dual carriageway. The van was struck from behind causing the van to propel forward killing G, and injuring S. At trial, V argued that the accident was caused by S's poor driving.

The issues determined by the CoA were:

(a) The relationship between 'safety' under section 2 of the HSWA and 'risk to safety' under secton 3.

(b) Was the Crown required to prove that the offence had caused an injury?

(c) To what extent did the Crown have to prove that the risk of injury 'derived' from the appellant's activities?

(d) The relevance of foreseeability to the accident or injury.

The CoA held that an employer must show that all reasonably practicable steps were taken to avert risk. The court found that ensuring safety under section 2 and ensuring an absence of risk to safety under section 3 were the same thing.

The court explained that the offences under the HSWA were primarily concerned with avoiding injury and not attributing the responsibility for the injury. The court considered that there was scope for misunderstanding the interpretation of the statement in R v Chargot Ltd [2008] UKHL 73, that where a person sustained an injury at work prima facie the employer would have failed to ensure his health and safety. The court found that an offence is not necessarily committed because there has been an accident at work and that there does not need to be an accident for an offence to have been committed. The relevance of an accident having occurred was evidence of the existence of a risk.

Section 3 of the HSWA requires risk to arise from the conduct of employers undertaking; however, there can be a risk posed by something independent. Although it is sometimes necessary to identify the source of a risk, the court found that a test of identifying the root of a risk could be potentially confusing and found that it would be better to ask the jury to concentrate on the exposure to risk and whether it had been reasonably practicable to avoid it.

The CoA applied the test in Baker v Quantum Clothing [2011] UKSC 17, that foreseeability of injury was the relevant test of what was safe and reasonably practicable to guard against. Lord Justice Hughes commented that: 'If a danger is not foreseeable it is difficult to see how it can be practicable, let alone reasonably practicable, for the defendant to take steps to avoid it'¦ What is reasonably practicable no doubt depends upon all the circumstances of the case, including principally the degree of foreseeable risk of injury, the gravity of injury if it occurs, and then implications of suggested methods of avoiding it.'

The appeals were dismissed. The case demonstrates the importance of undertaking proper risk assessments, and in doing so considering both the foreseeability of risk and the potential for injury. This is the only way in which employers can be informed of the measures they need to take to ensure the safety of their employees and others.

Training and risk assessment

In Evans v (1) Windsor & Maidenhead Royal Borough Council (2) Charles Wilson Engineers Ltd [2011] EWHC 2096 (QB), a delivery driver, E, who had worked for C for 13 years as a heavy goods vehicle driver delivering industrial plant for hire, died after striking an overhead pipe while reversing a partially-elevated mobile platform at a site belonging to W.

C's sales manager had visited the site to assess the size of plant required, and E had previously delivered the platform without any incident. On the entrance to the site there was warning tape and a 'danger' sign which indicated that there was limited overhead room. There were no signs before or after the pipe.

E had almost five years previously attended an accredited training course for driving this type of equipment. His certificates were about to expire and he had not received further training. C's evidence was that drivers were expected to carry out their own risk assessment for each delivery they carried out.

W denied that the warning signs on their site were inadequate and alleged that E had been insufficiently trained by C in the use of the platform. W and C both submitted that the accident had been caused wholly or partly by E's own negligence.

The court held that E had been provided with inadequate training since the machine on which E had been trained was approximately half the size of the one on which he had his accident. The focus of C's safety documents related primarily to safety at its own premises and not to work carried out at delivery sites. Too much reliance was placed on E's experience and C had not appreciated the need to keep E up to date with current safety practices. There were no procedures in place to ensure E was aware of his surroundings. Additionally, C's sales manager visited the site and should have noted the restricted headroom and put this information on E's delivery note. The court held that this would have warned E of the issues at W's site and found that on the balance of probabilities if E had had adequate training he would not have elevated the platform.

W was criticised by the court for the failure to display clear signage in advance of the overhead pipework. If the pipework had been clearly marked and a warning given in advance of the restricted headroom E would have known that he should not elevate the platform while exiting the premises and on the balance of probabilities he would not have had an accident.

The court held that both W and C bore equal responsibility for the accident. No finding was made against E.

This clearly illustrates the importance of ongoing training and risk assessments. It also provides an example of how an employee's high level of experience does not exempt or reduce an employer from their duty of care towards that employee.

The dangerous tick-box approach

In Tafa v Matsim Properties Ltd (1) Gilling-Smith (2) Agora Gynaecology & Fertility Centre Ltd (3) [2011] EWHC 1302 (QB), the claimant, T, claimed damages against G and A for personal injuries resulting from an accident at work.

M had leased the third floor of its building to A. G was a director and 50 per cent shareholder of M. A, through G, engaged a carpenter and handyman, H, to carry out work on the building. H, with the agreement of G, arranged for T to assist him. H instructed T to fix boarding onto the roof joists to provide a walkway to an air conditioning unit installed in the roof space; in doing so T fell 2.7m, rendering him paraplegic.

A produced a health and safety policy and health and safety plan, which identified G as having overall responsibility for health and safety. G maintained that she had discharged the duty she owed by appointing her husband as project manager, but the plan described her as joint project manager. H was uninsured and therefore not pursued. A was uninsured.

T contended that G was personally liable for his accident because she had assumed overall responsibility for health and safety on the site and that she had procured or authorised A's actions, which amounted to a causative breach of A's duty of care towards him.

It was held that on the balance of probabilities G was aware that work in the roof void would be necessary and therefore T had not been on a frolic of his own in starting the work in the roof. G and A had authorised T's presence on site and, although T was not employed by them, they had 'control' over the way works were being carried out by H for the purposes of regulation 4(2) of the Construction (Health, Safety and Welfare) Regulations 1996 (C(HS&W)R). They also had control over T for the purposes of regulation 3(3)(b) of the Work at Height Regulations 2005 (WAHR).

It was not disputed that T had not been provided with a safe method or place of work, but G and A argued the fault was H's. However, G and A were found to be in breach of the C(HS&W)R by failing to ensure that T was under the supervision of someone with suitable training, knowledge and experience to protect his safety and in failing to take steps to ensure that T did not gain access to the place where he was working without precautions being taken. G and A were also found to have failed to ensure that only competent persons were involved in the organisation, planning, supervision and performance of work at height on site. G and A were found liable and T was liable for a modest degree of contributory negligence, assessed at ten per cent.

This case highlights the importance of proper planning and the danger of putting a name to documentation for the sake of compliance only. It also demonstrates how the current proposed reforms to health and safety laws and regulations may lead to a tick-box approach to health and safety for the sake of compliance rather than the intended reasoned approached to risk management.