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Archive for April, 2015

Bristol City Council fined for tractor injuries: health and safety prosecution

Overturned tractor: serious injuries: £20,000 fine
Health and Safety Executive v Bristol City Council (2015) Bristol magistrates’ court, April 28
Bristol City Council has been fined following an incident in which a park keeper suffered serious injuries when a tractor overturned.
Significant points of the case
• In May 2012 a park keeper employed by the Council was carrying out maintenance work in Netham Park, Bristol. She was driving a tractor with a trailer attached. As the vehicle descended a slope, it skidded and overturned. She was thrown from her seat and suffered a fractured pelvis and a damaged Achilles tendon.
• The tractor was not fitted with a seat belt or any type of restraint. The employer had not been given adequate training on the use of the tractor.
• The nearly new vehicle had been acquired by the Council shortly before the incident. No supplier training had been provided because the acquisition had been outside the normal procurement procedure.
Bristol City Council was fined £20,000 plus £4700 costs for breaches of regulations 9 and 26 of the Provision and Use of Work Equipment Regulations 1998 (PUWER), for failing to ensure that a person using work equipment had received adequate training and for failing to ensure that mobile work equipment had a suitable restraining system.


Somerset quarry explosion: health and safety prosecutions

Quarry explosion: £30,000 fine
Health and Safety Executive v WCD Sleeman and Sons Ltd (2015) Barnstaple magistrates’ court, February 27
WCD Sleeman and Sons Ltd has been fined following an explosion at a quarry in Somerset.
Significant points of the case
• In February 2012 an explosion at a quarry near Shepton Mallet in Somerset caused rocks weighing up to 15 kilos to fly outside a danger zone towards employees and a public road.
• Workers acting as sentries outside the danger zone were aware of rocks flying above their heads and landing around them. The rocks also landed on the processing plant of the quarry on the other side of the public road.
• The blast had not been properly planned. Too much explosive had been used in an area where the ground was already broken. Measures put in place to reduce risks were inadequate.
The company was fined £30,000 plus £20,000 costs for a breach of section 3, HSW Act, for failing to ensure the health and safety of non-employees. It had previously been prosecuted and fined for a similar offence.
A spokesperson for the HSE is reported to have commented after the case that blasting operations at quarries are potentially very dangerous. The risks must be rigorously controlled by good explosives engineering practice and in accordance with legal requirements. Quarrying is one of the most dangerous industries to work in. 3,250 injuries which included 27 fatalities were reported to the HSE since 2000.


Another care home death despite warnings: £335,000 fines

Care home death: £335,000 fines and costs

Health and Safety Executive v GA Projects Ltd and Mohammed Zarook (2015) Luton Crown Court, March 27

GA Projects Ltd, the company which owns the Meppershall Care Home in Bedfordshire, and Mohammed Zarook, the company’s director, have ben fined following the death of a resident.

Significant points of the case

  • In August 2010 May Ward, aged 100, was being moved by two carers at the Home. She fell from a hoist and suffered multiple fatal injuries.
  • The two carers had been employed for less than a year. The hoist used to move Mrs Ward had a complex operating procedure and the carers had not been trained in how to use it safely. The hoist was not recommended by the local authority as being suitable for Mrs Ward’s condition. She was not securely positioned and when she moved forwards she fell out.
  • There was a history of serious safety breaches at the Home. The HSE had served five improvement notices between October and December 2010 related to resident handling, risk assessment and a lack of competent health and safety advice.
  • Another resident had suffered leg fractures after falling when being moved from a wheelchair to an armchair in September 2009.
  • Zarook had no knowledge or experience of running care homes. He proceeded to take vulnerable residents into his three care homes. There was no evidence that he had taken steps to fulfil his health and safety obligations through the provision of training and the management of risks most commonly associated with the care industry, including resident handling.
  • The Care Quality Commission had inspected the Home and had given it poor ratings. The Home was closed in July 2013.

GA Projects Ltd was fined £50,000 plus £36,000 costs for a breach of section 3, HSW Act, for failing to ensure the health and safety of non-employees.

Zarook was fined £150,000 plus £100,000 costs under section 37, HSW Act.


Contradiction between public perception of barristers and efforts to present a classless image

This cultural divide is also illustrated by obituaries of barristers, for example:

  • “The affetato misto in the Jager-Stubli in the Bernese Oberland was transformed by his description from a decent, if ordinary, platter of charcuterie to the most mouth-watering fare in the world.”
  • “Away from court, no dressing down for him. One might occasionally see a flash of red braces but on the whole he saw himself as keeping up standards of sartorial elegance in an increasingly shabby world.”
  • There have also been reports of “a popular and eminent QC” who, while working on a case in Croydon, could not find anywhere which served a decent lunch. He was photographed holding a cigar in one hand and a bag of fish and chips in the other. His instructing solicitor commented that this was how he liked his QCs: extravagant on the one hand, down to earth on the other.

Language used in legal practice includes sporting metaphors, for example a successful prosecution is described as “potting” the accused, and a trial can be described as a “fight”. Cases are “won” or “lost”. This use of language illustrates the highly competitive and adversarial nature of current mainstream legal practice.

 

During a barristers’ conference some years ago, where the matters being discussed included the possibility of direct access to the public without the intervention of a solicitor, one barrister hissed loudly every time the word “solicitor” was mentioned.

 

These types of comment illustrate a cultural context which is very far removed from a profession which is strenuously trying to rebrand itself as modern, caring and in touch.


Corporate manslaughter: NHS Trust charged

The Corporate Manslaughter and Corporate Homicide Act 2007 came into effect on April 6, 2008. Its enactment followed years of discussion, consultation and the introduction of Bills in Parliament. The Act was acclaimed by lawyers and health and safety professionals as a major step forward in the application of the criminal law to companies which caused workplace deaths.

Before the Act came into force, the technicalities of company and criminal law meant that, in a number of high-profile disaster cases, manslaughter prosecutions against large companies had been unsuccessful. Since April 2008, despite the expectations raised by the new statute, corporate manslaughter has largely disappeared from the headlines. There have been two significant developments since 2008. First, there have been a few reported prosecutions. Second, definitive sentencing guidelines for the new offence have been issued by the Sentencing Guidelines Council.

In summary, the Act of 2007 created a new offence of corporate manslaughter. This meant that companies and certain other organisations could be prosecuted where there had been a gross failure in the management of health and safety with fatal consequences.

Key elements of the new offence include the following:

  • It can only be committed by organisations and not by individuals.
  • Its root element is a breach of a duty of care.
  • The breach must be a gross breach. This means that the conduct at issue falls far below what can reasonably be expected of the organisation.
  • A substantial element of the breach must be the way in which the organisation’s activities are managed or organised by its senior management.
  • The offence is committed only where death is shown to have been caused by the gross breach of duty.
  • Crown immunity has been lifted. This means that government bodies can be prosecuted under the statute.
  • It has now been reported that Maidstone and Tunbridge Wells NHS Trust has been charged under the Act, following the death of a primary schoolteacher after childbirth. This is the first NHS Trust to be charged with the offence.

Undercover Police Officer: Cocaine Use: Compensation Claim Against Employer

HEALTH AND SAFETY

Claimant’s misconduct

Case  AB v Chief Constable of X Constabulary [2015] IRLR 284, High Court

Facts AB was an undercover police officer who was obtaining intelligence on a serious organised criminal group. He misused cocaine during his work. When this was discovered by his employers he was offered alternative employment and granted ill health retirement.

He claimed compensation from his former employer for psychiatric damage on the basis that it had breached its duty of care by failing to provide him with appropriate support. He suffered from a chronic adjustment disorder. The employer argued that any psychiatric injury had been caused by AB’s own misconduct.

Decision      1. The claim was barred by the principle of ex turpi causa. To have allowed AB to bring a claim for psychiatric injury caused or inextricably linked with his use of cocaine would have compromised the integrity of the legal system and would have awarded him damages for the consequences of his own voluntary misuse of drugs.

  1. There had been no breach of the duty of care. The risk of psychiatric injury had been foreseen and the employer had conducted a risk assessment.
  2. The measures identified by the employer had been reasonable in the circumstances and properly applied.

Edward Thompson On Law And Lawyers

Thompson referred to lawyers employed in the service of those who are working out means of avoiding tax and estate duties, setting up evasive trusts, engineering property-development and outwitting planning officers, promoting and merging companies in dubious ways, scrutinising complex legislation to find the pin-hole of unsealed logic through which money can make its leaky way.

Law today, commented Thompson, can be a profoundly corrupting profession.

In Thompson’s view, the rule of law is an unqualified human good. The rule of law must always be historically, culturally and, in general, nationally specific. It concerns the conduct of social life, and the regulation of conflicts, according to rules of law which are exactly defined and have palpable and material evidences – which rules attain towards consensual assent and are subject to interrogation and reform. That this itself is an ideal definition, which takes little account of social and ideological determinants of property and class, and which has never been matched by social reality, does not mean that the aspiration towards that state is not a human good.