Archive for June, 2013

Recent health and safety prosecution

Dangerous gas work: £20,000 fine
Health and Safety Executive v Newport City Council (2013) Cwmbran magistrates’ court, June 24
Newport City Council has been fined after a woman and her foster children were exposed to the danger of carbon monoxide poisoning.
Significant points of the case
• In November 2010 Newport City Council contracted a home improvement company to carry out loft conversion work at a property in Bettws, Newport, South Wales. The householder had agreed to modifications of her property, with a grant from the local authority, to accommodate foster children.
• The work included moving a boiler into the loft and replacing a gas fire flue. The householder complained that the boiler was leaking and was not working properly. She arranged for an inspection by an independent engineer.
• The engineer discovered that the boiler was leaking and that the pressure relief valve had not been connected. He advised the householder not to use the equipment.
• A Gas Safe officer found that the boiler had not been correctly fitted and that the gas fire flue had been capped below the level of the loft. This allowed carbon monoxide gas into the loft, and was classified as immediately dangerous.
• Newport City Council had not checked the competence of the contractor and had not monitored its work. It had not followed its own procedures for choosing contractors.
Newport City Council was fined £20,000 plus £11,000 costs under section 3 of the Health and Safety at Work, etc., Act 1974 for failing to ensure the health and safety of non-employees.
A spokesperson for the HSE is reported to have commented after the case that the shoddy and careless work by the contractors could have cost a family with young children their lives. Anyone carrying out work on or near a flue should get advice from a Gas Safe registered engineer before starting wo

Armed forces and health and safety

Armed forces and health and safety: Supreme Court decision
In the case of Smith and others v Ministry of Defence, the Supreme Court has ruled, in summary, that British soldiers killed in Iraq were under UK jurisdiction and were entitled to human rights protection to the extent that it is reasonable and does not interfere with the demands of active service.
The proceedings concerned three sets of claims, as follows:
!. The Challenger claims, brought in negligence, alleging failures by the MOD to properly equip tanks and to give soldiers adequate recognition training.
2. The Snatch Landrover claims, alleging that the MOD had breached Article 2 of the European Convention on Human Rights by failing to take preventive measures to protect life in the light of the real and immediate risk to life of soldiers who were required to patrol in Snatch Landrovers.
3. The Ellis negligence claim, based on various alleged failures on the part of the MOD.
The issues for the Supreme Court were as follows:
• In relation to the Snatch Landrover claims, whether two deceased soldiers were, at the time of their deaths, within the jurisdiction of the UK.
• If so, whether Article 2 imposes positive obligations on the UK with a view to preventing the deaths of soldiers in active operations against the enemy.
• Whether allegations of negligence should be struck out because of the principle of combat immunity or because it would not be fair, just or reasonable to impose a duty to take care to protect against death or injury in the circumstances.
The decision of the Supreme Court, in summary, was that all three claims could proceed to trial. The court made the following points:
• Extra-territorial jurisdiction can exist whenever a state through its agents exercises authority and control over an individual.
• Obligations imposed by Article 2 must be given effect where it would be reasonable to expect an individual to be protected.
• Policy decisions made at a high level and things done on the battlefield will fall outside the scope of article 2. But whether claims which are between these two categories are within the scope of Article 2 will require the exercise of judgment in the light of the facts of each case.
• In relation to claims in negligence, the doctrine of combat immunity should be construed narrowly and should not be extended beyond its established scope to the planning of and preparation for active operations against the enemy. The Challenger claims were not within the scope of the doctrine because they related to decisions which were sufficiently far removed from the pressures and risks of active operations against the enemy.
• The question whether the claims entailed subjecting the MOD to duties which were unrealistic or excessively burdensome could not properly be determined without a hearing.
The Supreme Court made the general point that the circumstances in which active operations are undertaken by the UK’s armed services today vary greatly and cannot all be grouped under a single umbrella as if they were all open to the same risk of judicialising warfare.
The Equality and Human Rights Commission, which made submissions to the Supreme Court, has commented that serving in the armed forces inevitably involved risks and dangers which servicemen and women took on willingly. The Supreme Court ruling would extend the same protections of their rights to members of the armed forces abroad which already existed when they were in the UK or an overseas base. If their equipment was proven to be faulty then they should be protected from that at home and abroad. Simply being on active service should not mean that our armed forces lose all protections of their rights.
In the view of the EHRC, the ruling meant that human rights protections have now been levelled up so that we are no longer expecting our armed forces to fully respect the rights of civilians abroad while not being properly protected themselves. This was not about interfering with the way military decisions were made in the field, but how everyone serving in the armed forces is given the protections they deserve.
In the context of health and safety, the doctrine of combat immunity was recently considered by the High Court in the case of Multiple Claimants v Ministry of Defence (2003). The facts, in summary, were that approximately 2000 former service personnel claimed compensation from the MOD on the basis that they had suffered psychiatric injury as a result of exposure to the stress and trauma of combat or analogous situations between 1969 and 1996. It was alleged that the MOD had been negligent in failing to take any or adequate steps to prevent the development of psychiatric illness and also in failing to detect, diagnose or treat such illness.
It was accepted by the claimants that no duty of care arose in common law in a service setting when related to immediate operational decisions and actions within a theatre of war or analogous situations. The issue was the scope of combat immunity.
The court made the following points:
• In relation to combat immunity, there was no basis for ruling that, as a matter of principle, all claims for personal injury sustained in combat could not be the subject of legal proceedings.
• A soldier did not owe a fellow soldier a duty of care in tort when either, or both, was engaged with the enemy in the course of combat.
• The MOD was not under a duty to maintain a safe system of work for service personnel engaged with an enemy in the course of combat.
• The term “combat” had an extended meaning, in that the immunity of the MOD was not limited to the presence of the enemy or occasions when contact with the enemy had been established. It extended to all active operations against the enemy in which service personnel were exposed to attack or the threat of attack.
• Combat immunity extended to the planning of, and preparation for, operations in which the armed forces might come under attack or meet armed resistance. It also applied to peace-keeping operations in which service personnel were exposed to attack or the threat of attack.
• The claimants had failed to establish that the MOD was in breach of its duty of care with regard to its systems for the prevention, detection and treatment of psychiatric reactions to the stress and trauma of combat.

Bristol health and safety death prosecution

Those who mock the “elf’n safety culture” would be well advised to read the following:
Farm tractor death: £80,000 fine
Health and Safety Executive v J & E Montgomery Ltd (2013) Bristol Crown Court, June 18
J & E Montgomery Ltd, a farming company, has been fined in relation to the death of a young farm worker in a tractor incident.
Significant points of the case
• In June 2009 Kim Webb, aged 26,an employee of Montgomery, was working on a farm near North Cadbury in Somerset. She was driving a tractor on a sloping field. The tractor had no seat belt, cab or roll over bar.
• Ms Webb was checking cattle in a number of fields. The tractor rolled over twice and crushed Ms Webb, causing fatal injuries.
• The tractor had no rollover protection. Brake pedals on the tractor could not be linked together. This made it unsuitable for road driving.
• There was a lack of suitable and sufficient risk assessments for the type of work being carried out.
• There was no safe system of work for the tasks which employees were required to carry out using the tractor.
• No effective training had been provided.
• There had been a failure of management control, oversight and supervision in relation to use of the tractor.
• Ms Webb’s supervisor had no formal training qualifications to instruct her in the use of the tractor.
• The company had allowed the tractor to be used without a roll bar and had failed to monitor the use of the tractor in a sloping field.
The company was fined £80,000 plus £40,000 costs for a breach of section 2 of the Health and Safety at Work, etc., Act 1974, for failing to ensure the health and safety of employees.
A spokesperson for the HSE is reported to have commented after the case that the tragic incident highlighted once again the dangers involved in agriculture. Between 40 and 50 workers are killed on British farms every year. That is nearly one person per week, which is a higher death rate than construction or manufacturing.

Fees in employment tribunals

Employment tribunal fees
Those of us who advise and provide representation in employment matters have been expecting, with some trepidation, the introduction of fees for bringing claims in employment tribunals. This marks a radical change in the whole ethos of the employment tribunal. Ever since its creation as the National Industrial Relations Court, the employment tribunal has not charged fees for its services, and has not generally been concerned with costs. The government’s stated aim is to transfer the cost of running employment tribunals from taxpayers to those who use the tribunal. The new fees will drastically change the role of the employment law adviser, not least because the cost of bringing proceedings will have to be discussed with clients at a very early stage.
These radical changes are supposedly to be brought in on July 29, 2013. At the time of writing (June 16) the statutory instrument which brings in the fees has not yet been brought into force. The instrument itself is, not surprisingly, complex and obscure. In order to be able to explain the new rules to clients, the instrument must be mastered in detail. This is not for the faint-hearted.
In summary, the proposed fees are as follows:
• Unfair dismissal, discrimination and whistleblowing: £250 for issuing the ET1 claim form and £950 for a hearing.
• Unlawful deductions from wages and claims for statutory redundancy payments: £160 for issue and £230 for a hearing.

Some claimants can obtain remission of the new fees. The remission scheme is, again, obscure and complex. Examples are as follows:
• Claimants in receipt of some (but not all) welfare benefits
• Claimants with a gross annual income below an applicable threshold, for example £13,000 for an individual with no children
• Claimants with a disposable monthly income of £50 or less.
Potential problems with the new system (apart from understanding the new rules) include:
• The introduction of new IT systems and centralised collection mechanisms for fee collections and remission applications, with potential and foreseeable glitches.
• The effect of IT problems on time limits for making claims.
• Implications for legal expenses insurance: whether such policies will cover the new fees.
This is a skeleton outline of the new rules, which must be studied in detail before clients can be properly advised. Another step has been taken to remove access to justice in employment cases from the non-lawyer.

Recent health and safety prosecutions

Skip lorry death: £300,000 fine
Health and Safety Executive v Adis Scaffolding Ltd (2013) Derby Crown Court, June 7.
Adis Scaffolding Ltd, a company which crushes rubble from construction and demolition waste, has been fined following the death of an employee.
Significant points of the case
• In July 2008 David Vickers, an employee of Adis, was tipping a skip at the company’s site in Derbyshire. He left the cab of the lorry which he was driving, to deploy the stabilising rear outriggers. The lorry overturned and crushed him, causing fatal injuries.
• The skip had been mis-hooked. This meant that it broke free and swung out, causing the vehicle to tip over.
• There was no safe system of work for the skip operation. No guidance had been given in relation to the handling of mis-hooks and other foreseeable problems. There had been inadequate training and instruction. Skip lorry controls were not marked and the risk assessment for loading and unloading skips was inadequate.

The company was fined £300,000 plus £124,000 costs for a breach of section 2, HSW Act, for failing to ensure the health and safety of employees.
The HSE has now issued a safety alert pointing out the dangers of the incorrect engagement of hooks on slips.

Climbing wall injury: £9000 fine
Health and Safety Executive v Manningtree High School (2013) Colchester magistrates’ court, June 7.
Manningtree High School has been fined following an incident in which a pupil fell from a climbing wall.
Significant points of the case
• In October 2012 a 14-yeat old boy was selected to try an advanced climbing technique on a climbing wall during a PE lesson.
• The boy fell four metres and suffered a fractured heel bone.
• Before the lesson, the boy had not been aware of the risks involved in the advanced technique and had not been properly trained or prepared for the more advanced type of climbing which was being attempted.
• The school failed to have an adequate safety management system in place for the advanced technique. Further, the instructor was not competent to teach or supervise the technique.
The school was fined £9000 plus £1600 costs for a breach of section 3, HSW Act, for failing to adequately protect pupils against the risk of falls.

Young workers

Young workers and health and safety
Factors known to contribute to the vulnerability of young workers are their inexperience, lack of knowledge, training, perception of danger and physical and mental immaturity.
A “young person” is someone who has not reached 18 years old. A “child” is someone who has not reached compulsory school leaving age.
There are, unfortunately, many recent examples of prosecutions involving young workers across a wide range of types of employment. These include the following:
In March 2013 Motorhouse 2000 Ltd, a vehicle repair company, was fined following an incident in which a school pupil was injured when toxic paint stripper splashed into his face.
In January 2012 Bret Thomas, then aged 16, was on an extended work experience placement at the company’s site in Cannock. He was told to help an employee who was refilling a wheel stripping tank. The employee poured paint stripper from plastic containers into the tank and then passed the containers to Thomas who removed their labels and cut them in half.
As he was cutting the last container with a Stanley knife, the container flicked up and the remains of the paint stripper splashed into his eyes and face. He was not wearing face or eye protection. He suffered burns to his face and eyes. His vision was seriously affected for a month and his face is scarred.
Motorhouse 2000 Ltd was fined £4000 plus £6300 costs under regulation 19(2)(b) of the Management of Health and Safety at Work Regulations 1999. This regulation states, in summary, that every employer shall ensure that young persons employed by him are protected at work from any risks to their health or safety which are a consequence of their lack of experience, or absence of awareness of existing or potential risks or the fact that young persons have not yet fully matured and involving harmful exposure to agents which are toxic or carcinogenic. cause heritable genetic damage or harm to the unborn child or which in any other way chronically affect human health.
A spokesperson for the HSE is reported to have commented that work experience is very important for young people in order for them to gain an understanding of the world of work. Employers must fulfil their responsibilities to assess risks and protect young people by putting the appropriate control measures in place.

Another example is the prosecution of JSF Stainless Ltd, a steel products manufacturer, and its director following an incident in which a 17 year old worker suffered severed fingers on a moving saw blade.
In June 2011 the young worker, who wishes to remain anonymous, was asked by Lancaster to clean a steel cutting saw while the blade was still moving. He had never before used the machine and did not know how to stop the blade. The saw caught his left hand and severed three fingers and his thumb.
The young worker should never have been instructed to clean dangerous equipment which was still in operation. He should have been provided with appropriate training on how to make the machine safe to clean and should have been suitably supervised. This was his first job and he was asked to clean the saw while the blade was moving by an experienced individual who knew better and who should have ensured that the machine was safe. Appropriate supervision should have been provided throughout, but was not.
JSF Stainless Steel Ltd was fined £6000 plus £13,000 costs under section 2 of the Health and Safety at Work, etc., Act 1974 for failing to ensure the health and safety of young persons.
Richard Lancaster was fined £2000 for the same offence, plus £2600 costs.

In April 2013 THS Industrial Textiles Ltd was fined following an incident in which a young worker suffered serious crushing injuries.

An 18 year old warehouse worker employed by THS was working at the company’s site in Elland, West Yorkshire. He was inside a container, unloading pallets, when a double-stacked pallet fell over and crushed him, causing a fractured leg. The company had operated a dangerous system of work for unloading the pallets for a significant amount of time and had failed to provide workers with the right equipment to do the job safely.
The pallets were being dragged by workers, using straps, across the container floor to get them closer to its doors so that they could be lifted off by a forklift truck. The pallets were also dragged onto the end of the forks. The forklift truck was carrying pallets which exceeded its capacity.
The company had been warned before the incident that the forklift was being used to lift loads which were too heavy. The warning was ignored.
The company was fined £6000 plus £4900 costs under section 2 of the Health and Safety at Work, etc., Act 1974, for failing to ensure the health and safety of employees.

Hammonds Furniture Ltd was fined £7000 plus £2700 costs in March 2013 in relation to an incident in which a young worker suffered multiple fractures when his arm was crushed in a gluing machine.
The young worker wishes to remain anonymous. He was working at the company’s site in Nuneaton in February 2012, on a line where glue is sprayed onto furniture panels. As he was attempting to change a roll of paper which was used to catch overspray glue his arm was pulled into the workings of the machine. He was freed by firefighters 40 minutes later. His arm was fractured in three places. He has been unable to return to work.
The company had increased the size of the roll of paper without assessing the risks associated with the change, or providing workers with training in a new method for changing the larger rolls. The result of this was that workers had developed their own unsafe method of changing the rolls. The young worker who was seriously injured had copied the method used by his older colleagues.
The company was fined for a breach of section 2 of the 1974 Act for failing to ensure the health and safety of employees.
A spokesperson for the HSE is reported to have commented after the case that the company had failed to properly assess any new risks to the workforce as a result of the changes which were implemented, or to develop a safe system of work and train workers in the new system. The unsafe method had been used for some months. As a result, a young worker suffered a great deal of physical and mental pain.

The envy of the world

In relation to the current storm of dissent over cuts to legal aid, we are repeatedly told that our legal system is the envy of the world and that it is under threat. My own view is that this argument does nothing to resist government policies which will make it even harder for poor people to obtain justice.
Why should the world envy our legal system? Is it because the legal profession operates such restrictive practices that only a tiny minority of privileged candidates can ever hope to gain entry?
Perhaps because many claimants with strong cases have never been able to obtain justice because they cannot afford lawyers’ fees?
Or maybe because law centres are struggling to survive?
Perhaps because our adversarial system often fails to disclose truth and depends upon the skill of advocates trained in the art of destructive cross-examination?
Or the way in which child witnesses are treated in court?
The list goes on and on…