Logo

Archive for January, 2016

Kent and Medway NHS Social Care Partnership Trust fined £107,000 after death of dementia patient

Death of dementia patient: £107,000 fine

Health and Safety Executive v Kent and Medway NHS Social Care Partnership Trust (2016) Maidstone Crown Court, January 21

Kent and Medway NHS Social Care Partnership Trust has been fined for safety failings after the death of an 87-year old dementia sufferer.

Significant points of the case

  • In April 2008 the dementia sufferer was being cared for by the Trust at a Unit in Sittingbourne. As he was being bathed he slipped from a hoist and fell, suffering serious injuries.
  • The HSE investigation found that there was poor communication between the nursing staff and the agency care workers. The care plan was unclear and was not shared with agency carers. There had been no consideration of the risk of using a bathroom in another ward which precluded active supervision of the agency workers.

The Trust was fined£107,000 plus £25,000 costs for breaches of section 3, HSW Act, for failing to ensure the health and safety of non-employees.

An HSE inspector commented after the case that it showed that it was not enough to have well-intentioned management procedures if these were not followed through at ward level. There must be a robust mechanism to communicate care needs to all staff, including temporary agency staff. Clear communication is an essential part of good management.


West Wales farn silo: worker’s leg amputated

Serious farm injuries: £10,000 fine

Health and Safety Executive v Clynderwen and Cardiganshire Farmers Ltd (2016) Haverfordwest magistrates’ court, January 18

Clynderwen and Cardiganshire Farmers Ltd (CCF) has been fined following an incident in which an employee suffered serious injuries in a wheat silo.

Significant points of the case

  • In July 2014 the employee entered a wheat silo to clear a blockage. The rotating auger in the silo pulled him into the silo. His clothing was caught and he was pulled further into the silo. He suffered serious lacerations to his leg, which was later amputated.
  • There was inadequate instruction and training on the electrical and mechanical isolation of the auger.
  • The auger was not adequately isolated.

CCF was fined £10,000 plus £1300 costs under section 2, HSW Act, for failing to ensure the health and safety of employees.


Comparative health and safety in a war context

Comparative health and safety in a war context

Reports of health and safety prosecutions cover, with depressing regularity, incidents involving deaths and injuries caused by crushing. For example, an eighteen-year old worker, crushed by an unguarded industrial machine, lies dying in an English hospital. In Iraq, an eighteen-year old worker, crushed by British and American military operations, also lies dying in hospital. Physically and medically, there is no difference between the two. Both are innocent young human beings whose lives have been cut short by others.

Those responsible for the death of the first young man will almost certainly be prosecuted for health and safety offences and perhaps for manslaughter. His dependants are likely to receive financial compensation for his death. Those responsible for the second will not be held accountable in civil or criminal courts.

What is the difference? Physically, mentally and morally, none. In terms of law, it would probably be argued that the second is an unfortunate victim of an act of war. But we were under the general impression that war is illegal under international law. Not this War, those responsible would respond. But the great majority of international lawyers take the view that the Iraq War was illegal. The legal justification argument carries no weight.

Further arguments, involving political and military expediency, are also invalid. There is no justification for the second death. No justification, whether moral, ethical, legal, political or military. The fact that there is no justification debases legality and warps justice so that it becomes unrecognisable. English law has severed any connection with morality until it condemns the Iraq War and brings the war criminals to trial.


Motherwell constrution site collapse: serious injuries: £135,000 fines

Cold store collapse: serious injuries: £135,000 fines

Crown Office and Procurator Fiscal Service v John Sisk and Son Ltd and Hemstec Installations Ltd (2016) Hamilton Sheriff Court, January 14

Two companies have been fined following the collapse of a cold store at a construction site.

Significant points of the case

  • In October 2010 Guy Davies and Nayan Patel, employees of a subcontractor, were working at a construction site in Motherwell. Both were seriously injured when the roof lids of a partly-constructed cold store collapsed under them.
  • Sisk had been appointed as principal contractor for fitting out a new distribution warehouse at the site. Hemsec was subcontracted to design and construct the cold store.
  • The incident could have been prevented if Sisk had enforced its permit to work system and ensured that workers were not allowed access to the roof lid system until it received confirmation that the system had been installed correctly and was safe.
  • Hemstec should have ensured that its subcontractor had installed the connections between the roof lid and the cold store wall in line with the design specifications. It should also have checked that these connections were safe before allowing Sisk access to the roof lids.

John Sisk and Son Ltd was fined £64,000 for a breach of section 3, HSW Act, for failing to ensure the health and safety of non-employees.


Mediation: because the courts are too expensive for all but the mega-rich?

Mediation

It may appear to outsiders to be bizarre that the main aim of English civil procedure is to avoid litigation. A legal system has become so complex and expensive that those in charge of it advise users to avoid it if at all possible. Alternative dispute resolution (ADR) is highly recommended by the drafters of the reformed civil procedure rules. It is expressly stated that litigation should be a last resort. A refusal to consider ADR may have costs implications – once again, money is the key.

Mediation is one form of ADR. It consists of a sort of shuttle diplomacy between the parties and their legal advisers with the aim of settling disputes out of court.

Some clients have concluded that mediation has developed into yet another money-making quasi-legal racket. Its aim is to avoid litigation and it is said to be cheaper than litigation, which gives plenty of scope for high charges.

There is an absurdity about a system of civil procedure which is so expensive to operate that claimants are urged to use it as a last resort and to seek alternative means of dispute resolution. This means, in effect, that the massively sophisticated machinery for civil claims is available only to the very rich.

There is every chance that we are witnessing the development of another layer of legal procedure which, although not expensive to the crippling extent of full-tilt litigation, still costs more than most people can afford. Alternative dispute resolution is now, effectively, compulsory because a refusal to mediate carries costs implications.

The potentially rich pickings of mediation are illustrated by a circular advertising a commercial mediator training course at a cost of £2950 plus VAT. A worthwhile investment in another layer of law for the rich.


Housing Trust fined £140,000 for serious mower injury

Housing Trust serious mower injury: £140,000 fine

Health and Safety Executive v New Charter Housing Trust (2016) Manchester Crown Court, January 7

New Charter Housing Trust has been fined following an incident in which a worker suffered severe hand injuries.

Significant points of the case

  • In March 2014 an employee of the Trust was using a ride-on mower with a grass box attached. The chute to the grass box became blocked because the grass was long and wet.
  • The worker reached into the chute to clear a blockage, His hand came into contact with a rotating metal fan. He suffered serious injuries.
  • He had not received training on how to use the mower and did not know that the fan continued to rotate for 30 seconds after the machine’s engine was switched off.

The Trust was fined £140,000 plus £70,000 costs for a breach of section 2, HSW Act, for failing to ensure the health and safety of employees.


Care Centre choking death: Shropshire Council fined for health and safety offence

Care centre death: £25,000 fine

Health and Safety Executive v Shropshire Council (2016) Shrewsbury Crown Court, January 8

Shropshire Council has been fined following the death of a vulnerable man at a care centre.

Significant points of the case

  • In September 2012 Michael Breeze attended the council-run day services care centre, Hartley’s Day Centre, in Shrewsbury.
  • The Centre caters for adults with learning disabilities. Mr Breeze was taken there for the day with a packed lunch provided by the carers at the residential home where he lived.
  • At midday Mr Breeze started to eat his lunch. He started to choke and collapsed. He went into respiratory arrest and did not recover.
  • He had a history of choking incidents. Appropriate safeguards were n tut in place at the Centre despite these warnings.

Shropshire Council was fined £25,000 plus £39,000 costs for a breach of section 3, HSW Act, for failing to ensure the health and safety of non-employees.


Poverty statistics and legal practice

Poverty

How many practising lawyers know the real meaning of poverty?

The income of lawyers, discussed below, should be seen, for example, in the context of the most recent poverty statistics compiled by the Joseph Rowntree Foundation. These statistics include:

  • The low-income threshold for a couple with two children under 14 is £357 per week.
  • In 2013, 13 million people in the UK were living in households below this threshold.
  • 3.5 million children were living in low-income households.
  • 4.4 million adults were paid less than £7 per hour.In May 2014, the Office of National Statistics published data which showed that the richest 1 per cent of Britain’s population now own as much wealth as the poorest 55 per cent put together.In December 2009 Shelter, the housing charity, reported that it would take between 10 and 33 years for local authorities to clear their housing waiting lists. Approximately 1.8 million households were currently on waiting lists for social housing.
  • In 2013/2014, the Tressell Trust reported that 913,138 people were now using its food banks, an increase of 51 per cent from the previous year.

The Royal Courts of Justice Citizen’s Advice Bureau (RCJCAB) deals with nearly 20,000 clients a year. It has reported the following:

  • In family cases, 69 per cent of divorce matters involved at least one unrepresented party.
  • In civil cases, 85 per cent of individual defendants in county court cases were unrepresented.
  • There is a definite trend of solicitors being unwilling to take on cases on a publicly-funded basis in areas such as housing and family.
  • 38 per cent of cases handled by the RCJCAB involve debt, mostly possession proceedings brought by banks.
  • There may be a theoretical entitlement to get legal aid but the reality is somewhat different. Solicitors say that they are too busy, or the case does not look like a sure-fire winner, or there is not going to be much money in it for them.
  • In relation to costs, many people do not have any concept of just how expensive litigation is.

Asbestos disturbance: charitable trust and contractor fined

 

Asbestos failings: charitable trust and contractor fined

Health and Safety Executive v The Williamson Trust and Mark Tucker (2016) Chatham magistrates’ court, January 6

The Williamson Trust and Mark Tucker have been fined after disturbing asbestos and continuing to work in a building.

Significant points of the case

  • The Williamson Trust operates a school academy. It contracted Mark Tucker to refurbish a block at the academy.
  • In July 2012 Tucker carried out the work, knowing that the Trust had an asbestos register identifying the location of asbestos.
  • The Trust failed to complete a refurbishment and demolition survey. The asbestos register was not checked as required by law.

The Williamson Trust was fined £18,000 plus £17,000 costs for a breach of section 3, HSW Act, for failing to ensure the health and safety of non-employees.

Mark Tucker was fined £9000 plus £8000 costs under regulation 13, Construction (Design and Management) Regulations 2007.


LIBEL: the board game: a bitter analysis of English civil procedure

 

LIBEL: the board game

This was devised by William Roache after he sued the Sun newspaper for printing a defamatory article about his portrayal of Ken Barlow in Coronation Street. The Sun called him boring and unpopular. He won the case. He then sued his lawyers and reportedly faced debts of £300,000.

The game, described as a legal game for all the family, with some similarities to Monopoly, can be seen as a bitter analysis of English civil procedure.

As a plaintiff in a libel case, each player races to gather together a legal team and successfully win their case. The game involves wooden figures moving around a board through the throw of a dice. Players have to collect cards to complete their legal team. These are priced at, for example, £5000 for a barrister, £7000 for a QC and £3000 for a solicitor.

The game has two stages. The first involves lengthy preliminaries with the expenditure of large sums of money (supplied with the game). The second stage – trial – leads eventually to judgment at the centre of the board. Again, there are lengthy moves and expensive developments. When all these moves and financial transactions are completed, the result is reached by the simple throw of a dice. Roache seems to be making a game of the high cost of legal representation and the chance element of judicial decisions.