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Archive for December, 2015

House of Lords construction work: two workers severely burned in electrical explosion

Electrical explosion: two companies fined £90,000

Health and Safety Executive v Clive Graham Associates Limited and Bellmoor Construction Limited (2015) Southwark Crown Court, December 18

Two companies have been fined following an incident in which two workers were seriously injured in an electrical explosion.

Significant points of the case

  • In July 2013 the workers, employees of Bellmoor, were laying bricks at the House of Lords site at Millbank, London. One of the men struck a live 11,000 volt cable with a jackhammer while removing old brickwork.
  • Both suffered serious burns which needed long-term medical treatment.
  • CGA had failed to identify the risk from live electrical cables which had been dug up and exposed. It also failed to provide warning information that the cable was live and failed to adequately manage the site and the contractor.
  • Bellmoor failed to carry out an adequate risk assessment before the work started, failed to provide effective supervision during the work and failed to check competence before allocating tasks, including the operation of the jackhammer.

CGA, the principal contractor for the project, was fined £45,000 plus £6600 costs for a breach of section 3, HSW Act, for failing to ensure the health and safety of non-employees.

Bellmoor was fined £45,000 plus £6600 costs under section 2, HSW Act, for failing to ensure the health and safety of employees.


Mid Staffs NHS Foundation Trust fined £500,000 over deaths of four patients

Deaths of patients: Hospital Trust fined £500,000

Health and Safety Executive v Mid Staffordshire NHS Foundation Trust (2015) Stafford Crown Court, December 17

Mid Staffordshire NHS Foundation Trust has been fined following the deaths of four patients.

Significant points of the case

  • The HSE investigated the deaths of four patients between 2005 and 2014 at Cannock and Stafford hospitals. Three of the patients suffered fatal flaws and a fourth suffered a severe anaphylactic reaction after being given penicillin despite having informed the hospital o sveral occasions that she was allergic to it.
  • The HSE investigated the Trust in accordance with its policy to investigate deaths in the health sector where there was evidence that standards had not been met because of a systematic failure in management systems.
  • The Trust failed to follow a number of its own policies in relation to handing over information, completing records, carrying out falls risk assessments and the monitoring of care plans. The systems were not robust enough to ensure that they were followed consistently and correctly.

The Trust was fined ££500,000 plus £35,000 costs for a breach of section 3, HSW Act, for failing to ensure the health and safety of non-employees.


The Bear Garden

The Bear Garden

The index to the Civil Court Practice contains the following entry: “Bear Garden” lists.

The entry refers to the Queen’s Bench Guide 2000, paragraph 6.3: Listing before Masters.

The Masters’ lists consist of:

The ordinary list – short applications in Rooms E102 and E110 (“the Bear Garden lists”). Masters will sit each day at 10.30 a.m. in the Bear Garden to hear applications in the Bear Garden lists.

Masters deal with interim and some pre-action applications and manage the claims so that they proceed without delay. Short hearings only take place in the Bear Garden.

What is this mysterious place?

The apparent origin of this phrase in the legal context can be found in evidence given to the Common Law Procedure Commission in 1831 by Thomas Lott, an attorney:

The rule office on the first day of term is a perfect bear garden and where there has been a great pressure of business, and those dirty little holes, the judges’ chambers, much crowded, I have seen oaths administered through the window to deponents in the courtyard, and persons excepting to bail compelled to make their exit through a back window rather than encounter the crowd.

Dickens refers to Judges’ Chambers, then situate in the Rolls Gardens, and vulgarly known as the “Bear Garden”

The Oxford English Dictionary defines a bear garden as a place set apart for the baiting of bears, a scene of strife and tumult.

The position appears to be that unrepresented claimants appearing before Masters in the Queen’s Bench Division are consigned to a Bear Garden. The origin of this may be the chaotic nature of the place. In any event, how can it be acceptable to name a suite of rooms on the Royal Courts of Justice after a cruel and illegal practice? Perhaps it might be renamed “The Cockpit”?

The Bear Garden is clearly signposted in the Royal Courts of Justice. One might, unrealistically, expect some element of suppressed guilt, or at the least embarrassment, at this label. But no, there is a proud boast of this continued use of early Victorian metaphor based on a viciously cruel baiting of animals.

The Bear Garden is a suite of rooms and antechambers, richly carpeted and decorated, at the far reaches of the Gothic temple known as the Law Courts in the Strand.


Largest ever North Sea gas release: £1.125 million fine

North Sea gas release: £1.125 million fine

Crown Office and Procurator Fiscal Service v Total E&P UK Ltd (2015) Aberdeen Sheriff Court, December 22.

Total E&P UK Ltd, an oil and gas company, has been fined following the largest ever North Sea gas release.

Significant points of the case

  • In March 2012 workers at the Elgin Offshore platform attempted a “well-kill”. A sudden an uncontrolled release of gas and condensate occurred. This created a real risk of fire or explosion. All 238 personnel on the rig were evacuated.
  • Neighbouring platforms were closed down. A two-mile shipping and aircraft exclusion zone was imposed around the platform. The well was brought under control over 51 days. More than 6000 tons of gas and condensate were released.
  • The company had experienced problems of high pressure leaking into the affected well. It suffered a series of casing failures. The company then started a well-kill operation. It failed to identify and implement sufficient control measures and control of the well was progressively lost until it failed.

The company was fined £1.125 million for a breach of regulation 13, Offshore Installations and Wells (Design and Construction, etc) Regulations 1996


Derby crushing death: three companies fined

Crushing death: three companies fined

Health and Safety Executive v Punchards Haulage Limited, VTK Structures Ltd and Hanson Packed Products Limited (2015) Derby Crown Court, December 10

Three companies have been fined following the death of a worker by crushing.

Significant points of the case

  • In January 2011 Travis Hale, a driver employed by Punchards, went to Hanson’s premises in Derby to collect a trailer loaded with four concrete panels. The panels had been designed by VTK and manufactured by Hanson. The load was secured to the trailer with three vehicle straps supplied by Punchards.
  • Hale was asked to check his load. He was joined by employees of VTK who advised him to fit more straps. When he undid a strap, a panel weighing one and half tons fell onto him, causing fatal crushing injuries.
  • The number of straps were not adequate to secure the load safely for transport. All three companies should have cooperated to ensure that a safer means of securing concrete panels on the trailer were used.

Punchards Hauling Limited was fined £140,000 plus £37,000 costs for a breach of section 2, HSW Act, for failing to ensure the health and safety of employees.

VTK Structures Limited was fined £140,000 plus £37,000 under section 3, HSW Act, for failing to ensure the health and safety of non-employees.

Hanson Packed Products Limited was fined £80,000 plus £37,000 costs under regulation 3, Management of Health and Safety At Work Regulations 1999, for failing to carry out a suitable and sufficient risk assessment.


Wigs and gowns: is justice inferior in tribunals where fancy dress not worn?

Those who argue in favour of separate court dress for advocates – wig, gown and bands – must deal with the fact that there are no dress requirements in the employment tribunal or the Employment Appeal Tribunal (EAT). Can they seriously argue that the quality of justice in these tribunals is somehow diminished by the fact that lawyers wear normal clothes? How many miscarriages of justice have been reported from employment tribunals? These tribunals and the EAT deal with complex and arcane points of law, procedure and evidence. They can, in some cases, award millions of pounds in compensation. Can it really be argued that these legal discussions, or the quality of justice dispensed, are devalued because the advocates have no horsehair on their heads?

 

Lord Gifford argued in 1986 that wigs and gowns should no longer be worn. In his opinion, the wig and gown are intended to convey a message: that we, judges and barristers, are different and superior; that we have more in common with each other than with you, the litigants; that we practise a craft which you can never understand.

It may be of interest to note a recent case where an impostor barrister was unmasked by a judge who noticed that he was wearing a solicitor’s, rather than a barrister’s gown. It was not reported whether the quality of his advocacy was affected by this lack of dress sense.


Care scalding death: Scottish housing association fined for health and safety breach

Care scalding death: £75,000 fine

Crown Office and Procurator Fiscal Service v Ark Housing Association Limited (2015) Edinburgh Sheriff Court, December 9

Ark Housing Association has been fined following the death by scalding of a client.

Significant points of the case

  • In June 2013 Joseph Hobbin, who suffered from cerebral palsy and epilepsy, was assisted into a bath in his home by a care worker employed by Ark.
  • As his legs were lowered into the bath he suffered an epileptic fit. His legs remained in the water and he sustained extensive scalding to his feet and lower legs. He died in hospital.
  • Mr Hobbin needed support in all aspects of day to day living. The local authority contracted Ark to provide his care.
  • Ark had not provided care workers with training or instruction in relation to bath and shower temperature. The company was not aware of guidance in relation to safe bathing. It did not provide thermometers to staff and did not carry out adequate risk assessments in relation to the bathing of service users, including the deceased.

Ark Housing Association was fined £75,000 for a breach of section 3, HSW Act, for failing to ensure the health and safety of non-employees.

An HSE inspector is reported to have made the following points after the case:

  • The risks associated with scalding during bathing and showering are well documented both in HSE and Industry Guidance.
  • Ark failed to implement adequate precautions to reduce the risk of scalding because it believed that this was a commonsense activity.

 


Illegal gas boiler installation: health and safety prosecution

 

Illegal gas boiler installation: fitter and engineer fined

Health and Safety Executive v Michael Birch and Peter Hopper (2015) Bodmin magistrates’ court, December 2

Michael Birch, an unregistered gas fitter, and Peter Hopper, a gas engineer, have been fined following the illegal installation of a gas boiler.

Significant points of the case

  • In June 2013 Birch fitted the boiler at a house in St Austell. The homeowner contacted Gas Safe Register, which found that the boiler flue had not been fitted to the manufacturer’s instructions and could not have been properly commissioned for safety purposes.
  • Birch was not registered with Gas Safe and should not have attempted to install the boiler. Hopper had illegally commissioned the work, knowing fully that Birch was not allowed to work on gas appliances.

Birch was fined £2000 plus £5000 costs for breaches of regulation 3, Gas Safety (Installation and Use) Regulations 1998 and section 3, HSW Act, for failing to ensure the health and safety of non-employees.

Hopper was fined £1500 plus £5000 costs under regulation 33 of the 1998 Regulations.

An HSE inspector commented after the case that this had been a deliberate attempt to claim that the work which Birch had carried out was legal. Both men had tried to circumvent gas safety regulations which were there for the sole purpose of protecting the public.


Rule against perpetuities: mental torture for students?

The rule against perpetuities

This is a sort of mental torture for law students and a means of generating income for practitioners. It is one of many areas of impenetrable law with no relevance for the propertyless.

Thomas W. Hopes, in his authoritative book on perpetuities, states that he has never acquired the faculty of brief and concise statement. He has certainly acquired the faculty of understatement. Hopes states that the perpetuity rule can be split into 32 separate rules, for example:

  1. Any provision restraining a tenant in tail from barring the entail or limitations thereto is void.
  2. A life estate to an unborn person or to a person who may be unborn will not if it vests support a contingent remainder.
  3. Any future executory interest legal or equitable or equitable contingent remainder whose vesting in interest is subject to a condition precedent which will not necessarily happen within a life or lives in being and twenty-one years is void.
  4. The general rule is that no interest in property is good unless it must vest, if at all, not later than 21 years after some life in being at the creation of the interest, allowance being made for gestation only when it actually exists.
  5. Immediate questions:
  • What is a tenant in tail?
  • What is an entail?
  • What is a vest?
  • What is an equitable contingent remainder?These rules are of no interest or significance to anyone who is not a property owner.
  • They exist as a sort of deliberately impenetrable code, designed to mystify property rights for the material benefit of lawyers.
  • This Victorian conveyancing language is so far removed from normal English that it might as well be Martian.

Res ipsa loquitur: judicial criticism of maxims dressed up in Latin

 

The use of legal Latin has been the object of sustained judicial criticism. Examples of this in the context of health and safety are the concepts of res ipsa loquitur and volenti non fit injuria.

Res ipsa loquitur (the thing speaks for itself) is a rule of evidence which may lead to liability for negligence without further evidence.

For example, in the case of Fryer v Pearson (2000) F, a gas fitter, was working at P’s house. As he knelt on the floor, the point of a needle buried in a deep-pile carpet pierced his knee. He claimed compensation from P. It was argued on his behalf that res ipsa loquitur applied, that the incident spoke for itself, and that he therefore did not have to prove negligence. His claim was dismissed. The court ruled that this had been a freak, unfortunate accident. Lord Justice May commented that people should stop using maxims or doctrines dressed up in Latin, such as res ipsa loquitur, which are not readily comprehensible to those for whose benefit they are supposed to exist.