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Archive for April, 2014

Death In Stafford Hospital: Health And Safety Prosecution

Hospital death: £200,000 fine

Health and Safety Executive v Mid Staffordshire NHS Foundation Trust (2014) Stafford Crown Court, April 28

Mid Staffordshire NHS Foundation Trust has been fined following the death of a patient.

Significant points of the case

  • Gillian Astbury, a 66 year old Type 1 diabetic, died from diabetic ketoacidosis at Stafford Hospital in April 2011 because of failures to implement basic handover procedures and to ensure essential record keeping.
  • Staff at the hospital did not follow or even sometimes look at medical notes which stated that Ms Astbury needed insulin, regular blood tests and a special diet.
  • The system for communicating patient needs at staff handovers was inconsistent. Record keeping and monitoring of patient care plans were far below acceptable standards.
  • Mistakes were made at up to eight shift changes and 11 drugs rounds. The failure to administer insulin was the direct cause of Ms Astbury’s death.

The HSE investigated the death in accordance with its policy to investigate health sector deaths where there was evidence that standards had not been met because of a systematic failure in management systems.

The Foundation Trust was fined £200,000 plus £27,000 costs for a breach of section 3, HSW Act, for failing to ensure the health and safety of non-employees.

Mid Staffordshire NHS Foundation Trust has been the subject of two major inquiries into events at Stafford Hospital between 2005 and 2009.


County Court Fees

County court fees

From April 22, 2014, fees for applications to the county court have increased significantly. The fees are assessed according to the value of the claim. For example, a claim worth between £3000 and £5000 incurs a fee of £205 (an increase from £120). Claims worth from £5000 to £15,000 now cost £455 (an increase from £245).

From the point of view of the employment lawyer, the main significance of these increases relates to the decision whether or not to use the employment tribunal or the county court in claims, for example, for unpaid wages or breach of contract, which can be categorised as money claims.

For example, an employee who is owed £6000 in unpaid wages will face a fee of £455 to start proceedings in the county court. In the employment tribunal, the fee is £160. The difference is stark.

For less valuable claims (up to £3000) the county court remains the cheaper option. It must also be borne in mind that the employment tribunal has no enforcement powers. Many awards of compensation made by employment tribunals are not paid by employers. The successful claimant then has to proceed though the county court enforcement procedure. Where the claim is started in the county court, this transfer is not necessary.

Employment lawyers now have to deal not only with the increasingly complex law and procedure related to claims. Cash calculations and projections are an increasingly significant part of their role.


Reconsideration Of Employment Tribunal Decisions

An employment tribunal may reconsider its judgment where it is in the interests of justice to do so. This power is set out in the Employment Tribunal (Constitution and Rules of Procedure) Regulations 2013, Schedule 1, rules 70 to 72. This discretion is very wide, and has replaced the power to review judgments. It is not clear how this discretion will be exercised, but it is thought that it will not apply to cases where it is argued that the tribunal has made the wrong decision or believed the wrong witnesses. Applications for reconsideration should only be made where there has been a serious problem with the way in which the decision was made, or there has been a significant change of circumstances since the decision was made. Applications to reconsider the same evidence and legal arguments which the tribunal has already considered in making its original decision are unlikely to succeed.

The main points which have resulted in a successful application for reconsideration appear to have been clear mistakes of fact or law, or where cogent new facts have emerged since the hearing.

The discretion to reconsider is subject to the public interest requirement that there should be finality of litigation.

Applications for reconsideration must be made within 14 days of the date on which written communication of the original decision was sent to the parties or within 14 days of the date that the written reasons were sent, if later. A fee is payable.


Recent Sexual Orientation Discrimination Cases

SEXUAL ORIENTATION DISCRIMINATION

Survivor’s benefits under occupational pension

Case    Innospec Ltd v Walker (2014) Eq Opp Rev 247:29, EAT

Facts    W joined I’s pension scheme in 1980. He retired in 2003 and received a pension. For some time before his retirement he lived with his male civil partner. If he had been married, his spouse would have been entitled to two-thirds of his pension. Because his service with I was before the law prohibiting sexual orientation came into force, his partner would receive a much smaller amount on his death. W complained of sexual orientation discrimination. The ET upheld his claim. The employer appealed to the EAT.

Decision          1. The appeal was allowed.

2. The prohibition of discrimination on the grounds of sexual orientation was limited by para. 18 of Schedule 9 to the Equality Act 2010, which permits discrimination in relation to a benefit relating to service prior to December 2005 when the Civil Partnership Act 2004 came into force.

 

SEXUAL ORIENTATION DISCRIMINATION

Burden of proof

Case    Chalk v Regal Recruitment Ltd (2014) Eq Opp Rev 247:30, London Central ET

Facts    C, a gay man, was summarily dismissed two weeks before the end of his probationary period. He claimed that he had been subjected to a number of offensive remarks about his sexuality and that he had been dismissed after an altercation with a colleague about sexual orientation. C complained of harassment and/or direct discrimination on the grounds of sexual orientation.

Decision          In the absence of a credible explanation for the dismissal of an employee, on the balance of probabilities, a dismissal which took place four hours after an altercation with a colleague about C’s sexual orientation, was direct discrimination. The employer could not show that sexual orientation played no part in the decision to dismiss.

 

 

SEXUAL ORIENTATION DISCRIMINATION

Limp wrist gestures

Case    Callahan v Benchmark Cleaning Services Ltd  (2014) Eq Opp Rev 247:31, East London ET

Facts    C, a gay man, complained of direct discrimination and harassment related to his sexual orientation. He alleged that his managing director had on a number of occasions said “Hello darling” to C and had used a limp wrist gesture.

Decision          1. The comments and gestures did not amount to harassment because they did not have the purpose or effect of creating a hostile or degrading environment for C. The behaviour did not have a harassive effect on C, who appeared to be happy and content in his workplace.

2. The direct discrimination claim was upheld. The comments and gestures were detrimental to C. The managing director did not use such comments or gestures towards other people.

 


Recent Health And Safety Prosecutions

Severe crushing injuries: £10,000 fine

Crown Office and Procurator Fiscal Service v Angus Tyres Ltd (2014) Arbroath Sheriff Court, April 15

Angus Tyres Ltd has been fined after an employee suffered severe crushing injuries.

Significant points of the case

  • In November 2012 Michael Davidson, an employee of Angus Tyres, was working on a farm, replacing the wheels of a tractor. He removed the nuts from one of the wheels when he noticed a farm labourer who might be injured if the wheel fell on him.
  • The wheel toppled. Davidson managed to prevent it striking the labourer but it struck him. He suffered a collapsed lung and multiple fractures.
  • Neither a risk assessment nor a manual handling assessment had been prepared for the changing of tractor wheels. The company had failed to enquire with the customer at the farm to ascertain the weight of the tractor wheels.
  • There was no safe system of work for changing the wheels. No training had been given to employees for the work. Workers were left to change wheels alone without considering the weights to be handled by a single person.

The company was fined £10,000 under section 2, HSW Act, for failing to ensure the health and safety of employees.

 

Amputated finger: conditional discharge

Health and Safety Executive v Birtenshaw (2014) Trafford magistrates’ court, April 11

Birtenshaw, a charity, has been fined following an incident in which a child lost a finger.

Significant points of the case

  • In September 2012 a nine-year old pupil at the Birtenshaw special needs school in Bolton trapped his hand in the hinge of a door at the school’s quiet room.
  • The child, who is autistic and has learning difficulties, lost the whole of his index finger.
  • The charity had identified the need for finger guards during the construction of the school. It failed to ensure that the guards had been fitted.

Birtenshaw was given a conditional discharge and ordered to pay £898 costs under section 3, HSW Act, for failing to ensure the health and safety of non-employees.

A spokesperson for the HSE commented after the case that the charity knew that there was a risk of children’s fingers being trapped in doors. Pupils who attended the school had learning and physical disabilities which made them particularly vulnerable.

 

Wall collapse: £140 fine

Health and Safety Executive v  Lee Marsden (2014) Kirklees magistrates’ court, April 9

Lee Marsden, director of MWK Group LLP, a building company, has been fined after a 61-yer old woman suffered multiple injuries when a garden wall collapsed.

Significant points of the case

  • In September 2011 a woman, who wishes to remain anonymous, was seriously injured when a wall collapsed in her garden.
  • Marsden had failed to ensure that the wall was properly built to withstand the pressures of an earth-retaining structure.
  • During the construction of the wall, in which Marsden was directly involved, cracks began to appear. Adequate precautions were not taken to ensure the safety of residents in the house.
  • The woman was struck by the collapse of the two-metre wall. She suffered fractures and lacerations.

Marsden was fined £140 plus £100 costs under section 37, HSW Act, which states, in summary, that where an offence by a company has been attributable to a director of the company, he as well as the company shall be guilty of that offence.

 

Gas explosion: £30,000 fine

Health and Safety Executive v Gaspack Services Ltd (2014) Cardiff Crown Court, March 31.

Gaspack Services Ltd has been fined following the explosion of a gas cylinder.

Significant points of the case

  • In March 2010 Andrew Wright was filling a cylinder with nitrogen and carbon dioxide at the premises of Guardian Gas Ltd in Swansea.
  • The cylinder exploded and severed his leg below the knee.
  • The failed cylinder was one of a batch which Guardian Gas had sent to Gaspack,  certified cylinder inspection body, for inspection, testing and certification for safe use for 10 years. The cylinders were certified by Gaspack as safe for use.
  • The inspection should have included internal shot blasting to remove corrosion and a thorough internal check for cracks or flaws. Only 2/3/ of the cylinder had been shot blasted and there was a large crack near the top of the cylinder.
  • An HSE examination of the arrangements at Gaspack discovered shortcomings in procedures, information, records, competency, supervision and monitoring.

Gaspack Services Ltd was fined £30,000 plus £60,000 costs for a breach of section 3, HSW Act, for failing to ensure the health and safety of non-employees.


Ogden Tables: Ethnic Minorities At A Disadvantage?

The Ogden Tables

These Tables took their name from Michael Ogden QC who was the chair of the working party which first drew them up. They involve the calculation of multipliers for future financial loss in personal injury cases based on actuarial principles. They are of crucial significance in personal injury cases.

The multiplier takes a claimant’s life expectancy and multiplies it by a rate of annual loss. The age of the claimant is a key factor. The Tables do not refer at all to a claimant who does not know his or her age.

The assessment of compensation is a highly-paid branch of law on its own. It is practically impossible for a successful claimant to accurately calculate his amount of compensation himself. Money can thus be made by lawyers from deciding on an amount of money.

The assessment of amounts of compensation for civil wrongs depends, as a starting point, on the age of the claimant. Legal textbooks dealing with civil procedure state, without further explanation, that formulas for future loss of earnings and other aspects of compensation depend upon the claimant’s age. The assumption of knowledge of age is the basis of the entire system of assessing amounts of compensation. Did the compilers of the Ogden Tables realise that some citizens have no birth certificates? Those of us who have worked with deprived persons from the Afro-Caribbean community know that, for a number of the middle aged and elderly, their date of birth is unknown. They know that they were born in the Caribbean fifty or sixty years ago but they have no record of their date of birth. The absence of proper certification systems in the colonial or post-colonial territories, with the implication of a legacy of slavery, means that such persons are at a huge disadvantage in their dealings with the legal system. On top of their weakness on financial and educational grounds, they face the added disadvantage of a third-world registration system up against a first-world legal system. How can you assess compensation if the client does not know his or her age? The unthinking assumption that all potential claimants know their dates of birth can be characterised as a form of unintentional racism in that it places certain ethnic groups at a disadvantage.

The issue of those who do not know, or cannot prove their age, is significant in the context of asylum and immigration cases, where “age dispute” is a recognised area of law. The Ogden Tables are untouched by this reality.


Health And Safety In The Construction Industry

  • Since 2001 more than 760 construction workers have been killed on sites.
  •  Funding for the Health and Safety Executive was cut by 35 per cent in 2011.
  • 40 per cent of construction workers are self-employed.
  • 90 per cent of construction workers are not members of a trade union.
  • More than 3000 workers have been blacklisted, many for raising concerns about health and safety.

In 2010 the Donaghy report recommended the following:

  • Companies should name individual directors responsible for safety
  • Construction workers should be consulted about decisions on site
  • Local authorities should be empowered to inspect small domestic projects
  • The Gangmasters Licensing Authority should have power to deal with the construction industry
  • A minster for construction should be appointed.

Nigel Evans MP Seeks Repayment Of £130,000 From CPS Following Acquittal

Earlier this week, Nigel Evans MP, the former Commons’ Deputy Speaker, was cleared of all charges brought against him in relation to sexual assault allegations. As a consequence, he is seeking repayment of his life savings, totalling £130,000, which he spent defending himself. In doing so, he equally wishes the CPS to have a higher threshold of evidence before bringing cases, and is seeking anonymity for defendants in sexual offence cases.

Prior to 2012, Mr Evans MP would have been able to recover this sum. However, by virtue of changes brought in by the much criticised Legal Aid, Sentencing and Punishment of Offenders Act 2012, acquitted defendants can only recover the sum which they would have received under legal aid for employing private representation. This change was brought in by the Conservative led-Coalition Government. Thus, many of Mr Evans’s colleagues and friends who are now appalled at him being required to shoulder the cost of his innocence, voted for the very provisions which stop him recovering the sum.

This case therefore serves as a high-profile reminder of the consequences of legal aid cuts and changes. Not only are less people able to afford representation at all, defendants are equally unable to recover costs when they have been wrongly accused of crimes.

The solution is not, however, to ensure the CPS is required to consider the financial consequences of bringing a case. The CPS’s role is to bring a case to Court to allow a jury or judge to make the decision based on the presented evidence. This is the hallmark of a just society.  The solution is for the Government to re-evaluate its budget priorities and not see the legal system and access to justice as a financial drain on its resources. Civil society is founded on democratic adherence to the rule of law. Justice is not something which can be, or ought to be, given a price.


Human Rights And Health And Safety

The first health and safety related case involving an express application of human rights law was reported in August 2009.

In R v Nottinghamshire Healthcare NHS Trust (2009), the Court of Appeal gave judgment in a case involving smoking and human rights.

The facts, in summary, were that E, a patient at Rampton high security psychiatric hospital, complained that a smoking ban introduced at the hospital, as a consequence of the NHS Trust’s policy and the Smoke Free (Exemption and Vehicles) Regulations 2007, was a breach of his rights under Article 8 of the European Convention on Human Rights.

The 2007 Regulations prohibited smoking within enclosed spaces and permitted smoking to continue in outside spaces. The NHS Trust’s policy banned smoking both inside and out, subject to very limited exceptions. The basis for this ban was that security reasons prevented the Trust from allowing patients to smoke outside.

On behalf of the claimant, it was argued that Article 8 protected a person from interference by the state with that which he chose to do within the privacy of his own home. If that was right, then the claimant’s life, detained in Rampton, could be equated to life at home.

The claim was rejected  by the High Court. The claimant appealed to the Court of Appeal.

That court dismissed the appeal and made the following points:

  • The freedom protected by Article 8 was not the same as the freedom to do whatever a person chose to do.
  • Rampton was the claimant’s home, but it was not the same as a private home and the distinction was significant. It was a public institution, operated as a hospital. For safety and security reasons, supervision was intense. It was a public and not a private place.
  • Freedom from interference by the state was already significantly constricted within the confines of a secure hospital. There was no basis for distinguishing the loss of freedom in such an institution to choose what to eat or drink, and the ban on smoking.
  • Although Article 8 did apply to closed institutions, it applied to a far more limited extent than it would to activities in a person’s home.
  • Difficult as it was to judge the importance of smoking to the integrity of a person’s identity, it was not sufficiently close to qualify as an activity deserving the protection of Article 8.
  • Article 8 did not protect a right to smoke at Rampton. The prohibition did not, in such an institution, have a sufficiently adverse effect on a patient’s physical or mental integrity.
  • A policy of prohibiting smoking in the premises of an NHS Trust, which had the consequence of a ban on smoking for those detained in a high security psychiatric hospital, did not violate the patients’ human rights and was lawful.

The Health Act 2006 required, in summary, that all premises used by the public must be smoke-free by July 1, 2007. Rampton was a place of work and had to be smoke-free unless exempted by regulations. The 2007 Regulations permanently exempted prisons but only gave temporary exemption to mental health units.

Article 8 of the European Convention on Human Rights states that everyone has the right to respect for his private and family life, his home and his correspondence. It also provides that there shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others.

The Rampton case can be seen as an exemplar of a lengthy and expensive legal process involving individual human rights. The process failed. Again, the lawyers’ fees have not been disclosed.

In this connection, it is interesting to note that the general ban on smoking in public places does not generally apply to the House of Commons.


Miscarriages Of Justice

  • Guildford Four. In summary, a group of three men and one woman who were convicted for the Guildford pub bombings in 1975. All four confessed. They were sentenced to life imprisonment. The trial judge is reported to have commented that he regretted that they had not been charged with treason, which carried the death penalty. Their convictions were quashed in 1989. They stated that their confessions had been obtained by intimidation and torture. Alibi evidence was not shown to the police. There was evidence of police collusion in fabricating evidence.
  • Maguire Seven. Seven persons who were convicted of handling explosives and were sentenced to terms ranging from 4 to 14 years. The convictions were quashed in 1991. The court stated that police officers had beaten some of them into confessing and had withheld information. Forensic evidence was discredited.
  • Judith Ward. A woman who confessed to a number of bombings. She was convicted despite retracting the confessions and spent 18 years in prison before her conviction was quashed. Her confession had resulted from a mental illness. Forensic evidence was unreliable.
  • Birmingham Six. Six men were sentenced to life imprisonment in 1975 for the Birmingham pub bombings. Their convictions were overturned in 1991. They had been forced to sign statements and there was evidence that the police had fabricated evidence.
  • Bridgwater Four. Four men were convicted of murder in 1978. In 1997 they were released on the basis that their trial had been unfair and following  allegations of serious, substantial and widespread police malpractice.
  • Tottenham Three. Three men were convicted of murder following the Broadwater Farm riots in 1985. Their convictions were quashed four years later when it was shown that police notes of interrogations had been tampered with.
  • Stefan Kiszko. Kiszko spent 17 years in prison for a murder to which he confessed. Forensic evidence had been suppressed by the police. He was released in 1992. The Kiszko case has been described as the worst miscarriage of justice of all time. 
  • Cardiff Three. Three men who were sentenced to life imprisonment for murder. Their convictions were quashed by the Court of Appeal. Police evidence was described as almost entirely a fabrication and largely the product of the imagination. The court stated that it was hard to conceive of a more hostile and intimidatory approach by police officers.
  • Sally Clark. A solicitor, wrongly convicted of the murder of her two sons. She was released after serving three years of her sentence. Statistical evidence was deeply flawed. Clark was unable to recover from the effects of her conviction and imprisonment.

These are some of the most extreme and well-publicised examples of the wrongful conviction and imprisonment of the innocent. The list goes on and on but never seems to affect the constant myth that English justice is the finest in the world, that all foreign systems are in some way inferior.

 

In McIlkenny v Chief Constable of West Midlands Police Force (1980), where the Birmingham Six, later to be released on appeal, brought civil proceedings against the police. Lord Denning struck out the action and commented:

If the six men win, it will mean that the police were guilty of perjury, that they were guilty of violence and threats, and that the confessions were involuntary and were improperly admitted in evidence and that the convictions were erroneous. That would mean that the Home Secretary would either have to recommend that they be pardoned or he would have to remit the case to the Court of Appeal. This is such an appalling vista that every sensible person in the land would say: it cannot be right that these actions should go further.