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Moral Duty of care, morally acceptable for an

organisation to seek to reduce accidents and


injuries. Not acceptable to put an employee at
risk.
Legal Having a good H&S system in place
ensures compliance and makes notices,
enforcements, or prosecutions less likely.
Controlling risks helps prevent injuries which
could leave to compensation claims.
Financial Helps reduce costs such as repair or
replacement, additional labour, or costs
associated with retraining of job advertising.
Less staff turnover, improved morale,
productivity, less stress, lower insurances and
less costs for compensation, and increased
reputation.

Civil Law:
Civil law is concerned with individuals. Civil law
is based on decisions made by judges (Common
Law Judicial Precedent) and aims to award
compensation to restore the victim to the same
position they were prior to the act.
Civil action can be brought by someone who
feels a wrong doing has been brought against
them. It is based on the law of torts.
A Tort is a civil wrong doing and may involve
common or statute law.
Claims need to be brought within 3 years of the
wrong doing. This is based on a balance of
probabilities.
Statute barred means no longer legally
enforceable.

Direct Costs: Immediate cost of accident /


damage, clean up and loss of worker.
Indirect Costs: Replacement labour, loss of
sales, low morale, staff leaving.
Insured Costs: Employers liability insurance,
minimum cover 5 million, insures against ill
health or injury.
Uninsured costs: product or material damage,
lost production time, legal costs, investigation
time & administration, first aiders time,
additional recruitment and training, fines, loss
of expertise, increased insurance, bad publicity.

Criminal Law:
Criminal law is concerned with written law passed by
parliament. It is where a crime has been committed by
breaching a law.
Punishment can consist of fines or imprisonment and is
predominantly based on statute law.
Statute law is written down in forms of acts, regulations etc
and MUST be complied with.
Criminal cases can be heard in magistrates court, and cases
heard here are Summary offences. Fines are limited to
20,000 per breach.
Serious cases are heard in the Crown Court. These are
indictable offences (formal accusation of a crime) with
unlimited fines. Offences are triable, or triable either way
(can elect between a judge a jury and summary trial in a
magistrates court).
H&S cases triable either way are most often used in H&S
prosecutions on the principle of beyond all reasonable

Direct / Indirect
Insured / Uninsured Costs to
a Business

Criminal Law

Moral, Legal and Financial


reasons for Managing
Health & Safety

Civil Law

Enforcement of Health & Safety:


Local Authorities Enforcement for industries
not directly regulated by the HSE, which
includes:
Retail
Office
Catering
Launderette
Churches and places of worship
Car parking facilities
Provision of childcare

Enforcement of Health & Safety.

Enforcement of health & Safety:

Health & Safety Executive Advises secretary


of state in the creation and amendment of
regulations, provides guidance and information.
Enforcement for directly regulated industries
which includes:
Construction
Mine or quarry work
Fairgrounds
Agriculture
Broadcasting and filming
Railways (in conjunction with Office of Railways
Regulation)

Fire Authorities Along with the Regulatory Reform (Fire


Safety) Order 2005, Fire inspectors have the same
rights as HSE and LA inspectors but for fire related
incidents only.
Environment Agency Enforces environmental
legislation such as water contamination, noise, land and
air pollution and provides guidance for industry best
practice.
Insurance Companies Insurance companies set out
requirements that are expected such as regular
inspections on lifting equipment.
Crown Prosecution Service They are responsible for
prosecuting criminal cases that are investigated by the
police in England and Wales.

Enforcement of Health &


Safety
Health & Safety Executive

Enforcement of Health &


Safety
Other Authorities

Court Hierarchy

Enforcement of Health &


Safety
Local Authorities

Powers of Inspectors:
Enter a premises at any reasonable time,
accompanied by a police officer, if necessary.
Examine, investigate and require the premises
to be left undisturbed.
Take samples, photographs and, if necessary,
dismantle ad remove equipment or substances.
Require the production of booked or other
relevant documents and information.
Seize, destroy or render harmless any
substance or article.
Issue enforcement notices and initiate
prosecutions.

Enforcement Notices
There are two types of enforcement notice. They are:
Improvement Notice Issued if there is a breach of relevant
statutory duty provisions (or there is likely to be a repeat), but no
imminent harm will be caused. The notice will require the issue to
be resolved over a given period of time.
Prohibition Notice Issued when there is likely to be a risk of
serious or imminent danger. There doesnt have to be a breach of
legislation (although it is usually the case). The notice will prevent
the use of equipment or premises. Failure to comply with this type
of notice is a criminal offence.
An organisation can appeal within 21 days of receiving a notice. An
improvement notice will be suspended during a case, whereas a
prohibition notice will remain in force.
Appeal are made on the grounds of: Incorrect interpretation of the
regulations, inspector has exceeded powers, breach of law
admitted but claim insignificant, breach was admitted but
guidance to rectify not possible or practicable.

Criminal Law Defences:


In order to form a defence under criminal law,
the following points have to be considered:
Individuals must prove they took all reasonable
care.
Employers must prove they took all reasonable
foreseeable precautions.
Due diligence must have been exercised.
The accused must prove that it was not
reasonable or reasonably practicable to do
more.

Civil Law Liabilities:


Civil courts consist of a county court and high court. Persons
seeking retribution are the Claimant and the accused is the
Defendant.
The claimant has to site a tort (civil wrong doing). Examples
are deformation, nuisance, breach of statutory duty or
negligence.
In regards to health & safety, this can be a tort of negligence
or a tort of breach of statutory duty.
Neighbour Principle:
The principle was established in the case of Donoghue vs
Stevenson (1932), also known as the Paisley Snail or the
Snail in the bottle case.
This occurred when Mrs Donoghue was drinking a ginger
beer in a caf when she became ill from it. It was not noticed
by the caf owner that there was a snail in the bottle. Mrs
Donoghue sued the owner and the neighbour principle was
established.

Enforcement Notices

Civil Law Liabilities

Powers of Inspectors

Criminal Law Defences

Employers Common Law Duty


This is based on the precedent set by a judges decisions.
This was established in 1938 by Wilson Clyde & Coal Co vs
English.
Basic Facts: Mr English (a minor) was injured by being
crushed under haulage plant. The collier owner claimed the
responsibility was with his agent working on behalf of the
company. It was decided that a duty rests on the employer
as they are responsible for the agents.
It was therefore ruled under common law that an employer
has a duty to provide for his employees:
A safe place of work (including access and egress)
Provide safe plant and equipment
Provide safe systems of work
Provide adequate levels of supervision, training and
instruction
Competent fellow employees
These responsibilities cannot be delegated to anyone else.

Tort of Negligence
A tort of negligence gives the affected party change to seek
compensation for a wrong doing. To bring a case of negligence,
specific criteria have to be met:
A Duty of care was owed.
The duty of care was breached
As a direct result of the breach, the claimant suffered harm or
injury.
The defendant has an opportunity to respond and will need to reply
on one or more of the following:
Duty of care was NOT owed (e.g. defendant was a third party /
employee not acting in course of employment)
Breach of care did NOT directly result in harm.
Denial of facts.
Contributory Negligence (partial defence involves defendant
taking a portion of the blame. Defendant needs to identify their
own failures and apportion blame to a third party of claimant,
which can reduce compensation or dismiss it altogether.
Claimant voluntarily accepted the risk Volenti non fit injuria.
Act of God.

Tort of Breach of Statutory Duty


This relates to CIVIL and not criminal law. It uses statute
breached as a basis for compensation. Tests to be
established are:
The defendant was in breach of statue.
The breach caused an injury
The claimant was the class of person the statute was
designed to protect.
The type of injury was one the statute was designed to
prevent.
Defences include:
Statute does not allow a civil claim statute barred
There was no breach in duty
Injured person not covered by the duty
Harm not the type the duty was designed to prevent.
No causal connection between the breach and the loss.

Double Barrelled Actions


This is where a claimant can claim under both tort of negligence
and tort of breach of statutory duty, but only one claim can
succeed and only one award of compensation can be made.
Vicarious Liability
An employer can be held vicariously liable for an unauthorised
negligent act by one of his employees. If an employee commits an
offence at work under the direction of the employer, the employer
is wholly responsible, even if the employee was forbidden to do
something. The employee however, still has a duty to take
reasonable care of themselves.
Compensation
There are two categories of compensation: General For non
monetary losses e.g. pain and suffering, and Special for financial
losses. E.g. medical costs, loss of earnings.
Employment Tribunals
Tribunals consist of a legally qualified chairperson, and 2 lay
members. They deal mainly with victimisation and discrimination
cases, but also deal with: Appeals again enforcement notices,
complaints form H&S reps, dismissals following a breach, claims for

Tort of Negligence

Double Barrelled Actions /


Vicarious Liability /
Compensation /
Employment Tribunals

Employers Common Law


Duty

Tort of Breach Statutory


Duty

Hierarchy of Statute Law


Acts
Acts are known as primary legislation. Passed by houses of parliament.
Acts lay down general duties and make provisions for regulations and
approved codes of practice.
Regulations
Delegated legislation made under the health & safety at work act 1974, by
the secretary of state often for EU directives. Consultation is taken with the
HSE and other interested parties. Breaches under the regulations can lead
to enforcement notices.
Approved Codes of Practice (ACOPs)
Produced by the HSE with consent from secretary of state. Help to
interpret how to comply with legislation. One ACOP per specific regulation.
Not legally binding but can be used as evidence in court. ACOPs have
quasi legal status meaning an obligation invoked by law in the absence
of an agreement. ACOPs are easier to amend than legislation, so guidance
can be given to industry more expeditiously.
Guidance
HSE guidance notes are there to give a greater understanding of a certain
regulation or a requirement (best practice). No legal standing and cannot
be used in court.

Construction (Design and Management) Regulations 2007


Part 1 Introduction
Part 2 General Management Duties applying to all
construction projects
Part 3 Additional duties where projects are notifiable
Part 4 Worksite health & safety requirements
Part 5 General
Most duties are on the clients, designers and contractors
who have duties regardless of whether the project is
notifiable.
If notifiable, other involved are:
Principal contractors, CDM coordinator, notification via the
F10 form to the HSE, Construction Phase Plan and the Health
& Safety file.

Types of Statutory Duty

Client Duties

Absolute
Highest level of duty. Has MUST or SHALL. Duties MUST
be complied with. There are not many in regards to H&S
but are in the requirements to have a H&S policy and
risk assessments. Cost cannot be taken into account. It
is absolute, so must be complied with irrespective of
cost.
Qualified
Practicable Duties qualified by the word practicable.
Cost not a determining factor. If technically feasible, it
should be done.
Reasonable Practicable This is the lowest level of duty.
Allows for a balance of risk versus cost. If costs
outweigh the risks, duty is discharged. If risk is too high,

Check the competence and resources of those they appoint, allow


sufficient time and resource, provide key information to designers
and contractors, ensure everyone cooperates and coordinates with
each other, ensure adequate welfare facilities are in place, ensure
workplaces are designed correctly, ensure suitable management
arrangements are in place.
For a notifiable project, additional duties include:
Appoint a CDM coordinator, provide CDM coordinator with relevant
information, appoint a competent principal contractor, ensure the
construction phase does not start until there are adequate welfare
facilities in place and there is a construction phase health and
safety plan, retain and provide access to the health and safety file.
If a client does not appoint a CDM coordinator or principal
contractor, they would be expected to carry out these duties as
well as their duties as a client.

Types of Statutory Duty

CDM Regulations
Client Duties

Hierarchy of Statute Law


(Acts, Regulations, ACOPS)

Construction (Design and


Management) Regulations
2007
(Parts, Main Duties)

CDM Coordinator Duties


CDM coordinators are expected to have a positive and
enabling role.
Brevity and clarity is the key.
Discourage unproductive paper based systems and
unnecessary things like designer risk assessments.
Support the client to help them comply with their
duties.
Advise client about selecting competent contractors
and designers.
Coordinate arrangements for the health and safety
planning and design work.
Notify the HSE of the project via the F10 form.
Advise on the suitability of the initial construction
phase plan
Prepare a health and safety file for the client.

Principal Contractor Duties


Make sure client is aware of their duties.
Ensure a CDM coordinator has been appointed and the
project has been notified.
Ensure appointees are competent.
Provide information to contractors.
Ensuring construction phase plan is prepared and
implemented.
Providing welfare facilities.
Giving direction to contractors.
Providing information for the health and safety file.
Preventing unauthorised access.
Liaise with others on the project.
Provide suitable induction, information and training to
workers.

Designer Duties
Ensure the client is aware of their duties.
Make sure they are competent for the project they are
doing.
Coordinate their work with others.
Cooperate with the CDM coordinator and others.
Provide information for the health and safety file.
Must avoid foreseeable risks AFARP (eliminate risks,
reduce risks from any remaining hazards, give collective
risk reduction measures).
Take account of the workplace regulations when
designing a workplace.
Provide information to assist the clients, other
designers and contractors.
Can provide information via notes on drawings, written
information on the design, suggested sequence of

Contractor Duties
Check client is aware of their duties.
Do not start the work until pre-construction phase
information has been received.
Plan, manage and monitor their own work.
Inform any contractor they engage about minimum
time allowed for planning and preparation.
Report any hazardous information.
Cooperate with others on the project.
Work in accordance with the construction phase plan.
Provide information for the health and safety file.

CDM Regulations
Designer Duties

CDM Regulations
Contractor Duties

CDM Regulations
CDM Coordinator Duties

CDM Regulations
Principal Contractor Duties

Part 4 CDM Regulations


Part four specifies duties to control health and safety
risks. It applies to all construction sites, and places
duties on every contractor and every other person who
controls construction work. It covers:
Safe place of work, good order and site security,
stability of structures, demolition and dismantling,
explosives, excavations, reports of inspections, traffic
routes, prevention of drowning, cofferdams and
caissons, fire, emergency procedures, temperature and
lighting.

Competence for CDM


Must have sufficient knowledge of the tasks and risks
Have experience and ability to carry out the job.
Take reasonable care that people appointed are competent.
Not accept an appointment unless they are competent.
Corporate competency is assessed by a two stage process.
An assessment of companys organisation and
arrangements of H&S.
An assessment of companys experience and track record.
This needs to meet criteria set out in the ACOP appendix four
(Industry and HSE agreed). Accreditation schemes like CHAS
and National Britannia Safe Contractor have core criteria
which meets industry standards and is assessed as an
individual by a two stage process.
Assessment of knowledge, training records and
qualifications, including basic understanding of site risks.
Previous experience in the type of work being asked for.

Pre-Construction Information
Description of project
Client considerations and management requirements
Environmental restrictions and existing onsite risks.
Significant design and construction hazards
H&S file description of format and conditions relating to the
content.
Construction Phase H&S Plan.
Description of the project / Management of the work.
Arrangements for controlling significant site risks.
H&S file / Site security / Site induction
On site training / Welfare facilities and fist aid.
Accident and incident reporting and investigation
Production and approval of risk assessment and safe systems of
work documents.
Site Rules / Fire and emergency procedures.
The plan should also define arrangements for controlling risks that
include:
Access / Egress, delivery and removal of materials and waste,
services, adjacent land use, preventing falls, work with or near
fragile materials, control of listing operations, maintenance of plant
and equipment, excavations, work on wells, underground caverns
or tunnels, diving, caisson or compressed air, work on or near
water.

Health & Safety File


Description of work
Residual hazards and how they have been dealt
with.
Key structural principle ad safe working loads for
floors and roofs
Hazardous materials used.
Information regarding removal or dismantling of
plant / equipment
H&S info about equipment provided for cleaning
and maintaining structure.
Nature, location and marking of services
Information and drawings of the structure and
plant / equipment

CDM Regulations
Competence for CDM

CDM Regulations
Contractor Duties

CDM Regulations
Part 4 CDM Regulations

CDM Regulations
Pre-Construction /
Construction Phase H&S
Plan