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Archive for October, 2017

Health and safety horrors continued: recycling industry

RECYCLING

Recycling site death from exploding gas cylinder

In June 2009 Tony Johnson was working at Walter Heselwood Ltd, a scrap metal recycling company’s site in Sheffield. A pressurised gas cylinder was put through a shearing machine. It exploded and a large section struck Mr Johnson on the head. He suffered fatal injuries. The company had no effective health and safety management system in place. It had failed to adequately assess the risks involved with processing different types of scrap material. It had also failed to put in place a range of measures to reduce risks.

Serious ash burns

In December 2009 an agency worker was cleaning ash from a filtration hopper at Veolia Environmental Services’ site in Deptford. He prodded the ash with a rod in an attempt to clear a blockage. The ash fell onto him and he suffered 17 per cent burns to his body. He was hospitalised for a month. The worker, who wishes to remain anonymous, was from Eastern Europe. He spoke little English and had not been properly instructed on working practices at the site. Veolia had not followed its own policies and procedures for the management of dangerous tasks. This put a vulnerable worker at risk by failing to provide him with adequate information or supervision.

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Collapse of waste material: worker asphyxiated

In August 2014 Neville Watson, an employee of New Earth Solutions Group Ltd, a waste and recycling company, was driving a loading shovel near a pile of waste material which was eight metres high. He had connected a shredder to the vehicle. The pile collapsed on him and he died from asphyxiation. The company had failed to undertake and prepare risk assessments or safe systems of work for the creation and management of stockpiles of waste. It had also failed to provide adequate training.

Excavator fall death

In July 2012 Lindsay Campbell was working in the bucket of an excavator South Coast Skips Ltd, a waste management company’s site in Arundel. He was running an electric cable to power a waste screening machine. The bucket was lifted nine metres from the ground when the hydraulic pressure dropped, the bucket tipped forward and Campbell fell nine metres to the concrete floor. He suffered fatal injuries. An HSE inspector commented after the case that nobody should ever be lifted in the bucket of an excavator. Neither the bucket nor the excavator have the necessary safety devices nor fail safe devices which would prevent a person falling. The company did not have in place the training and supervision and especially the health and safety culture that ensures that nobody would consider undertaking such an obviously unsafe act such as this.

Dumper truck death

Ben Sewell, an employee of Dittisham Recycling Centre Ltd, was working at its site in Dittisham, South Devon. He was driving a dumper truck to move oversized material. He drove the truck along a dirt track down a steeply sided valley. He was not wearing a seat belt. He was found lying at the side of the track a few metres from the truck. He had suffered fatal injuries. The HSE discovered a series of safety failings with vehicles at the site. Tipping operations were unsafe and some of the roadways were inadequately protected. The deceased had not been adequately trained. An HSE inspector commented that dumper trucks are inherently unstable and dangerous machines to operate. The company had not enforced the necessary rules to make sure that they were driven safely, including the full and proper use of seat lap belts.


Health and safety horrors: lift shaft nightmares

LIFTS

Lift crushing death: stately home operator fined

Arthur Mellar, a butler, was killed in July 2014 when a luggage lift descended on him. The luggage lift was being used to lift guests’ bags from the ground to the second floor of the house of the Burghley House stately home in Stamford, operated by Burghley House Preservation Trust Ltd.  A bag became jammed and the lift stopped. Mellar tried to free the bag when the lift descended and crushed him, causing fatal injuries.The lift had not been fitted with a slack rope detector. An assessment of the lift would have shown that the lift should have been thoroughly examined and tested. A competent lift engineer would have identified defects with the lift.

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Lift shaft fall death

In January 2011 work was being carried out on the decommissioning of a lift shaft in a building being converted into flats in the Victoria area of London. The chain supporting the lift car broke while two men were working on it. The car fell six storeys to the bottom of the shaft. One worker was wearing a safety harness and was seriously injured. The other was not wearing a safety harness and was killed. Planning and management of the project was inadequate in relation to work at height and the lift decommissioning work.

Lift shaft fall death

Craig Jones, a resident of Marsden House in Bolton, was trapped in a lift at the premises and was unable to raise the alarm. He attempted to self-rescue by forcing the lift doors open and sliding out onto the floor below. He slipped and fell five storeys down the lift shaft, suffering fatal injuries.Warwick Estates Property Management Ltd, as management company of the building, had failed to take suitable and sufficient steps to prevent the deceased from self-rescuing. An HSE inspector commented after the case that the problems with the lift were well-known. Those who manage lifts have a responsibility to ensure that if people are trapped they have a way to raise the alarm and are not in a position to try to rescue themselves.


Tree cutter struck by large branch: no proper training: very serious head injuries

Tree worker struck by branch: serious head injuries

Health and Safety Executive v Perry Regan t/a Toppers Garden Services (2017) Peterborough magistrates’ court, October 16

Statutory reference: s.3 of the Health and Safety at Work, etc., Act 1974 (HSWA)

The facts

  • In November 2015 Perry Regan climbed six metres up a ladder and cut branches from a tree, using a chainsaw. A large branch fell from the tree and struck am employee on the head.
  • The worker suffered serious head injuries. His injuries included a fractured skull and the loss of an eye. He was placed in an induced coma.
  • Perry Regan was not competent or qualified to carry out, manage or supervise the work. He was using a chainsaw without being qualified.
  • The work was not properly planned to identify risks.
  • No adequate training or instruction was given to workers.
  • No personal protective equipment was made available.

The decision

Regan was sentenced to 20 weeks in prison suspended for 18 months. He was ordered to pay £2000 costs and a £115 victim surcharge fee, for a breach of s.3 HSWA, for failing to ensure the health and safety of non-employees.


No win no fee: the reality

Conditional fee agreements (CFAs)

In April 2000 legal aid for routine personal injury cases was abolished and replaced by no win no fee agreements, involving the recovery of insurance premiums and success fees from the losing party. These schemes are borrowed from the United States.

It has been commented that there are growing concerns that these arrangements may not always be operating in the interests of justice. This appears to be a mastery of understatement.

It is generally recognised that solicitors will not take on a case under a CFA unless they estimate that there is a 70 per cent chance of success.

In 2005 the Citizens Advice Bureau made the following comments about CFAs:

  • Consumers were being misled by the term no win no fee.
  • They often found that the system cost them more than they gained.
  • They were subjected to high-pressure and aggressive sales tactics from non-lawyers employed by claims management companies.
  • Those companies were paid a fee by solicitors to whom they referred cases.
  • Consumers were not clearly informed of the financial risks involved in legal proceedings.
  • They were misled into believing that the system was genuinely no win no fee.
  • The reality was that consumers had to take out insurance policies to offset legal expenses incurred if they lost the case and had to pay the winning side’s costs. They were encouraged to take out loans to pay for these policies.
  • Private insurance companies charged according to risk. Clients with uncertain cases could face very high insurance premiums.
  • Legal expenses could be artificially inflated by claims management companies.
  • It frequently happened that injured persons did not benefit from the compensation they were awarded.
  • For example, the CAB dealt with a case where a woman was left with £15 from a £2150 compensation award, and another where a man received £1250 compensation but owed £2400 for insurance policies.

No win no fee can be described as another gimmick to avoid state responsibility and to secure justice on the cheap.

 

The following arguments against the conditional fee system were put forward before its introduction:

  • It was an open invitation to unprofessional conduct.
  • Lawyers would refuse to take on weaker cases.
  • There would  be increased pressure to accept an early settlement.
  • Lord Denning, writing in 1982, stated that English law had never sanctioned an agreement by which a lawyer was remunerated on the basis of a contingency fee, that is, he gets paid the fee if he wins but not if he loses. Such an agreement was illegal on the ground that it was the offence of champerty. Never, never, said Denning, allow lawyers to work on the basis of a contingency fee.

 

No win no fee

No win no fee, in reality, is a grotesque over-simplification which reflects the naive innocence of clients. It has developed into an impenetrable jungle of regulations and procedures, mostly concerned with insurance premiums and payments. There is also a significant body of case law dealing with CFAs and their insurance implications.

In outline, a solicitor assesses the chance of success in a case and decides on a success fee to be paid on top of normal fees if the claim succeeds.

This includes the cost of an insurance policy to cover costs if the claim fails.

The introduction of CFAs is another example of the commercialisation of legal practice. CFAs make it less likely that poor claimants with cases which are not overwhelmingly likely to succeed will be able to find professional representation. Claims with a significant risk of failure are not taken on.

 

In 2009 a study by Oxford University concluded that the use of CFAs in defamation cases (essentially, libel) made such cases 140 times more expensive in England and Wales than in other European countries. Defendants who lost defamation cases faced a doubling of reasonable costs against them. Media outlets were being forced to settle claims because of the financial risks of fighting such cases. CFAs in defamation cases enabled lawyers to charge up to twice their normal fees of up to £800 an hour. The study made the point that media companies were being forced to self-censor because they had no economic incentive to defend defamation claims. Where the claimant had the benefit of a CFA, there was no longer any incentive to control the amount of work being done. This distorted the normal costs control mechanism and potentially breached Article 6 of the European Convention on Human Rights (the right of access to justice) and Article 10 (freedom of speech).

Compensation in libel cases assesses a person’s reputation as if this was a commodity. The valuation of a person’s reputation in money risks undermining the very thing which the law seeks to restore, namely the intangible good name of the injured person. The law of defamation is fundamentally geared towards financial compensation.

English law imposes a monetary value on injuries. Although there are a number of non-money remedies available in the employment tribunal, they are rarely ordered. Employment tribunal claims, like the vast majority of civil claims, are mainly about money.

What is the client’s ultimate aim? If it is financial compensation, then the system functions. If it is otherwise, for example to obtain justice or to have a day in court, the procedural aspects of the case become highly problematic.

 


Breach of enforcement notices: Rochdale company and director fined

Breach of enforcement notices: company and director fined

Health and Safety Executive v Rochdale MOT Centre Ltd and Nazar Hussain (2017) Manchester magistrates’ court, September 5

Statutory reference: s.33 of the Health and Safety at Work, etc., Act 1974 (HSWA).

The facts

  • Rochdale MOT Centre Ltd and Nazar Hussain, the company’s director, were served with three improvement notices in June 2016. The notices required the thorough examination of three vehicle lifts by dates specified in the notices. The company’s premises were investigated by the NSE following information from the local authority.

The decision

The company was fined £1500 plus £15,000 costs, and Hussain was fined £3000 plus £15,000 costs under s.33 of HSWA.

An HSE inspector commented after the case that it highlighted the impact of the work of the HSE, ensuring that duty holders were held to account for their failings and taking appropriate action to ensure the safety of workers.


Health and safety horrors: examples from industry

INDUSTRY

Foundry death from grinder

Stuart Stead, an employee of  H.I. Quality Steel Castings Ltd, was using a hand-held grinder to work on a casting at the company’s foundry in Doncaster. The disc fitted to the machine exploded and sent fragments across his workbay. A shard struck him in the mouth. He suffered fatal injuries. The disc was nine inches in diameter despite the fact that the grinder had a maximum tool diameter of two inches unless guarded. It was attached to the grinder by using a non-proprietary tool. The disk was rated for 6650 rpm but was running at 12,000 rpm. The grinder had no guard. The excessive speed of the grinder, coupled with the added load caused by the non-standard attachment, had put stresses on the disc beyond its capacity.

The HSE’s investigation had discovered a number of previous incidents when discs had flown off grinders. None of these had been mentioned in monthly minutes of the company’s health and safety meetings. Despite some initial training in abrasive wheels, employees did not understand rotation speeds of machines versus discs and had free access to a number of grinders and discs. This contributed to the prevalence of unsafe combinations.

Severed hand

In March 2016 a worker at Pipework Engineering Services Ltd was operating a foot pedal saw. His hand came into contact with the saw’s rotating blade. He suffered a severed hand and wrist which required surgical intervention to reattach. The company had failed to install the machine correctly and in accordance with the manufacturer’s instructions. This meant that it could be operated from a position which took the operator very close to the blade.

 

Death of steelworker in blast furnace

In April 2006 Kevin Downey was working a night shift at Tata Steel’s Port Talbot plant. He went to the cast house at the site to inspect the slag pool of a blast furnace which was due to close for maintenance. He fell into the open section of a channel containing slag at 1500 degrees Celsius. The company had a reporting system which showed a significant number of near misses where steam had led to dangerous situations.It was common practice to operate the furnace with channels left uncovered without taking additional precautions to prevent workers from falling in.

 

Severe head injuries in pneumatic metal press

In August 2011 Wayne Hill, a maintenance engineer, was working at H & E Knowles (Lye) Limited’s site. He was repairing a pneumatic metal press when it unexpectedly started working and crushed his head. He suffered severe head injuries including a fractured nose and jaw and lacerations. He needed extensive reconstructive surgery. The press takes a sheet of metal and forms it into a wheelbarrow body. It should not have been able to operate if the door was open. The machine had a faulty interlocking guard which meant that it did not detect that the door was open. The machine had been designed and built by the company 25 years ago. There were no technical drawings or other documentation and an adequate risk assessment had never been carried out. The machine broke down regularly and maintenance staff repaired it with no instructions.

 

Factory death: overturned vehicle

In April 2008 Martin McMenemy, an employee of O. Turner Insulation Ltd and Clegg Food Projects Ltd, was working on the construction of a food processing plant in Leicester. He was driving a scissor lift to install wall and ceiling panels. The vehicle overturned when it went into an uncovered pit. McMenemy suffered fatal head injuries. O.Turner and Clegg Food Projects Ltd, the principal contractor for the project, had failed to take precautions to cover the hole. The incident could have been prevented if the pit had been covered with a metal plate or cordoned off.

 

Flammable solvent fire: worker severely burned

In November 2014 an employee of HMG Paints Ltd  was using a highly flammable solvent to clean the floor of a spray booth at the company’s premises in Manchester. He complained about the difficulty of removing dried paint and was allowed to buy an industrial floor scrubber to carry out the work. The electric motor of the scrubber ignited a cloud of vapour which had built up in the booth. The worker suffered 26 per cent burns.The planning for cleaning floors with solvent had failed to recognise the hazard and level of risk associated with the use of highly flammable solvents to clean floors. The worker who was injured had not been trained to clean floors and was not adequately supervised.

 

Distillery fire: employee severely burned

In November 2012 ethyl acetate, a highly flammable liquid, was being moved from a bulk storage tank to an intermediate container at Alcohol Ltd’s warehouse.The liquid ignited. An employee was engulfed in flames and suffered twenty per cent burns to his head, neck and hands. The fire destroyed the warehouse and damaged nearby cars and houses.The HSE investigation found that the most likely cause of the fire was a discharge of static electricity generated by the transfer of the liquid.There was poor management of pipework and associated valves and a failure to completely inspect the equipment or monitor the systems of work.

 

Severed arm in conveyor belt

An employee of the company was making adjustments to a misaligned conveyor belt at  Concrete Fabrications Ltd’s site in Henbury, Bristol. He had to adjust tensioning rods which were inside the machine’s guards. He tried, with a hammer, to remove material which had built up on a rod. The hammer was dragged into the rotating machinery with his arm. The arm was torn off  between the shoulder and the elbow.The company should have had adequate guards on dangerous parts of the machinery. Clear procedures should exist regarding maintenance and adjustments of machinery and arrangements should be in place to ensure that machinery is not run without the necessary guarding in place, and that clear isolation and lock off procedures exist. A sufficient risk assessment would have identified the risks associated with tracking conveyor belts and identified appropriate control measures.


Race discrimination: burden of proof

RACE DISCRIMINATION

Burden of proof

Case  Efobi v Royal Maul Group Ltd (2017) Morning Star, September 29, EAT

Facts E, a black African from Nigeria, was employed as a postman. He applied for 33 IT-related jobs with Royal mail. It was clear from his CV that he had a degree in Information Systems and was qualified in forensic computing. All his applications were rejected. He complained of direct and indirect race discrimination. The ET rejected the complaints. It found that E had not proved facts from which it could conclude that there had been discrimination. He had not brought evidence to show that successful applicants were appropriate comparators because there was no evidence as to their race or national origin. There was no prima facie case of discrimination. E appealed to the EAT.

Decision      1. The appeal was allowed and the case remitted to a different tribunal.

  1. Section 136 of the Equality Act 2010 does not impose an initial burden of proof on claimants to show discrimination. The tribunal should consider all the evidence at the end of the hearing and decide whether or not there were facts from which it could infer discrimination.
  2. Section 136 states that if there are facts from which a court could decide, in the absence of any other explanation, that a person contravened a provision in the Equality Act, the court must hold that the contravention occurred unless that person could show that they did not contravene the provision.
  3. There could have been facts from which a court could have concluded that the employer had discriminated against E. The tribunal had failed to consider that possibility.RACE DISCRIMINATION

    Burden of proof

    Case  Efobi v Royal Maul Group Ltd (2017) Morning Star, September 29, EAT

    Facts E, a black African from Nigeria, was employed as a postman. He applied for 33 IT-related jobs with Royal mail. It was clear from his CV that he had a degree in Information Systems and was qualified in forensic computing. All his applications were rejected. He complained of direct and indirect race discrimination. The ET rejected the complaints. It found that E had not proved facts from which it could conclude that there had been discrimination. He had not brought evidence to show that successful applicants were appropriate comparators because there was no evidence as to their race or national origin. There was no prima facie case of discrimination. E appealed to the EAT.

    Decision      1. The appeal was allowed and the case remitted to a different tribunal.

    1. Section 136 of the Equality Act 2010 does not impose an initial burden of proof on claimants to show discrimination. The tribunal should consider all the evidence at the end of the hearing and decide whether or not there were facts from which it could infer discrimination.
    2. Section 136 states that if there are facts from which a court could decide, in the absence of any other explanation, that a person contravened a provision in the Equality Act, the court must hold that the contravention occurred unless that person could show that they did not contravene the provision.
    3. There could have been facts from which a court could have concluded that the employer had discriminated against E. The tribunal had failed to consider that possibility.

Health and safety horrors: care home deaths

Death of dementia patient from hoist

In April 2008 an 87-year old dementia sufferer was being cared for by the Kent and Medway NHS Social Care Partnership Trust at a Unit in Sittingbourne. As he was being bathed he slipped from a hoist and fell, suffering fatal 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.
Care centre death from choking

In September 2012 Michael Breeze attended Shropshire Council’s 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 not put in place at the Centre despite these warnings.

 

Care home death from fire door

In November 2010 Irene Sharples, a 92-year old resident at Alexian Brothers Care Centre, was killed when a heavy fire door fell on her during renovation work.Healthcare Management Trust, the company which ran the home, engaged Rothwell Robinson Ltd to carry out renovation work. Mrs Sharples, who suffered from dementia, wandered into a room where building work was being carried out. A fire door fell on her and caused fatal injuries. Both companies had failed to make sure that the room was locked when it was unoccupied. The fire door had been removed during the building work and leant against wardrobes. Other hazards in the room included loose skirting boards, exposed wiring, broken glass and rusty nails.

 

Death from asphyxiation in care home

In April 2010 Mrs Elsie Beals, aged 93, a resident of the Aden Court Care Home in Huddersfield, run by New Century Care Ltd, died from asphyxiation after being trapped in the gap between her mattress and incorrectly fitted bed safety rails. Mrs Beal had been a resident for two years. She had been helped to bed on the evening before her death by two care assistants. She was checked before midnight and was due another check two hours later. When the care assistants entered her room, they found her dead, trapped in the gap between her mattress and the bed safety rail. The company had failed to train staff at the care home to fit bed safety rails properly. Staff had not been trained to carry out regular in use checks to make sure that bed rails remained properly adjusted, nor to carry out risk assessments for their use.

Bed safety rails are used extensively in the health and social care sectors to protect vulnerable people from falling out of bed. The risks of their use are well documented, actively published and widely recognised in the health care industry.


Suspension from work: not neutral: breach of contract

BREACH OF CONTRACT

Implied term of mutual trust and confidence

Suspension

Case  Agoreyu v London Borough of Lambeth (2017) Morning Star, October 6, High Court

Facts Ms A was a teacher with 15 years experience. She started work on a fixed term contract teaching five and six-year olds. She was told that two of the children had behavioural difficulties. It was agreed that she needed more support. In December 2012 she was suspended on full pay by the head teacher following three incidents in which she had allegedly used force against the two children. The suspension letter stated that the suspension was a neutral act and that it had been imposed to allow an investigation to be carried out. Ms A resigned and claimed breach of contract, specifically breach of the implied term of mutual trust and confidence. The county court dismissed the claim on the basis that the school had no alternative but to suspend her in order to protect the children in its care. Ms A appealed to the High Court.

Decision      1. The appeal was allowed.

  1. Suspension is not a neutral act. In relation to the employment of a qualified professional it inevitably casts a shadow over their competence.
  2. The statutory guidance for local authorities makes it clear that all other options should be considered before suspending a member of staff. Suspension should not be the default option and individuals should only be suspended if there was no reasonable alternative.
  3. Instead of suspending Ms A, the school should have given Ms A an opportunity to respond to the allegations before considering both suspension and possible alternatives.

Scaffold inspectors sentenced for false documents

Scaffold fall: serious injuries: scaffold inspectors sentenced

Health and Safety Executive v Stephen Harper and Garry Arnold (2017) Greater Manchester magistrates’ court, September 21

Statutory reference: s. 7 of the Health and Safety at Work, etc., Act 1974 (HSWA).

The facts

  • In March 2014 a worker was working on a re-roofing project. He stepped down from the untiled roof onto a fixed scaffold and fell through a gap between the scaffold working platform and the building. He suffered fracture injuries to his spine.
  • The scaffolding had been signed off as safe by Stephen Harper and Garry Arnold. The HSE investigation found that they had not carried out the relevant inspections and had falsified certificates to show that the scaffolding was safe for use.

The decision

Harper and Arnold were each sentenced to 170 hours community service and were ordered to pay £1500 costs under s. 7 of HSWA.

An HSE inspector commented after the case that scaffold inspectors were relied upon by workers and must be trusted. Falsely completing reports without carrying out a thorough inspection could lead to serious risks being missed and life changing accidents.Â