Saturday, 25 February 2012

Employers Duty Of Care

I came across this article from a very interesting site, I thought I'd like to share with you its from a very interesting site, you should look at if your into all things H&S
There is no author and no copyright so I assume it written by the site owner who is
  Mike Everly   good informative site

Common Law
In an article of this length it would be impossible to deal with the entire field of common law. Therefore, the focus is very narrow and purely related to an employer's common law duty of care towards their employees. Additionally, only the civil law implications of common law are considered.

To be successful in a tort of negligence action the following has to be established:

· That the defendant owed the claimant a duty of care.

· That the duty of care was breached through negligence.

· That loss resulted from the breach of the duty of care.

Negligence merely means failing to act in a way a reasonable person would have acted under the circumstances, or acting in a way a reasonable person would not have acted in under the circumstances.

The burden of proof in civil cases rests with the claimant on the balance of probabilities. However, there are two main ways in which the claimant can gain assistance in discharging this burden of proof. Namely:

· Assistance by statute. Under the Civil Evidence Act 1968, where the defendant has been convicted of criminal proceedings that conviction is admissible in civil proceedings.

· Assistance at common law. Under the doctrine of res ipsa loquitur, or the thing speaks for itself, the evidential burden of proof is cast from the claimant upon the defendant. However, three conditions must apply:

· The accident could not have occurred without negligence.

· The defendant was in control of the situation.

· There is an absence of an alternative explanation by the defendant.

The Duty of Care

In Wilsons and Clyde Coal Co Ltd v English (1938), the four main elements of an employers’ duty towards their employees were identified as being the:

· Provision and maintenance of a safe place of work;

· Provision and maintenance of a safe system of work;

· Provision and maintenance of safe plant and appliances;

· Provision of competent fellow employees.

In addition, it was made clear, that while an employer may delegate some of these functions to nominated employees, the employer cannot delegate legal responsibility.

The duty of care owed by employers to their employees has been extended over the years through case-law. Examples being:

Safe Place of Work

· Galt v British Railways Board (1983). The claimant suffered shock and consequent heart problems when the train he was driving nearly hit two men working by the lines. The defendant was held to be liable for not providing a lookout.

· Paine v Colne Valley Electricity Supply Company Ltd (1938) found the employer liable after an employee was electrocuted because a kiosk had not been properly insulated.

· Latimer v AEC Ltd (1953) found the employer not liable after a heavy storm flooded the factory floor and a mixture of oil and water made the floor slippery. The employer put down sand and sawdust, but did not have enough to treat the whole of the factory in this way. As a result the claimant was injured. It was held that the risk was not grave enough to warrant closing down the factory.

Safe System of Work

· Ross v Tennant Caledonian Breweries Ltd (1983) demonstrated that the fact that a system has been in place for a period of time without accidents occurring, is not enough to demonstrate that it is a safe system.

· Bux v Slough Metal Ltd (1974) held that the employer had failed to provide a reasonably safe system of work by failing to give the employee the necessary instructions to wear the goggles provided and to enforce the wearing of them through supervision. However, in Qualcast (Wolverhampton) Ltd v Haynes (1959) an employee who did not wear the protective clothing which was available failed to gain compensation as they had chosen not to make use of it at their own risk. In Finch v Telegraph Construction and Maintenance Company (1949) the employer was found liable for the eye injury to the claimant, because although they had provided goggles they had not told the employee where to find them.

· In Walker v Northumberland County Council (1994) the duty to provide a safe system of work was extended beyond providing a system that took reasonable measure to protect employees from physical injury to protect employees from psychological injury as well.

Safe Plant and Appliances

· Bradford v Robinson Rentals (1967) held that it was foreseeable that a vehicle driver would suffer frostbite in an unheated van while driving a long distance in extremely cold weather. As the van also had cracked windows, it was held that the employer had failed to provide suitable plant.

· Davie v New Merton Board Mills Ltd (1959) led to the Employers' Liability (Defective Equipment) Act 1969. The claimant lost his claim against his employer following an injury from a tool with a hidden defect. It was held that the employer was not negligent. The Act changed matters by providing that if an employee is injured in the course of his employment as a consequence of a defect in equipment, provided by his employer for use in connection with his business, then that defect will be attributable to the negligence of the employer. However, any damages paid by the employer can then be recovered from the manufacturer or other responsible party. Knowles v Liverpool City Council(1993) found that a defective flagstone used by the "flagger" employed by the highway authority constituted equipment under the Act and the House of Lords refused to draw a distinction between equipment and materials.

· Taylor v Rover Car Company Ltd (1966) held that where an employer is aware of any defect in tools which have been purchased from outside the company, he should withdraw them from circulation.

· Williams v Birmingham Battery and Metal Company (1899) held the employer liable for failing to provide the necessary equipment, Machray v Stewarts and Lloyds Ltd (1964) for providing insufficient equipment and Bowater v Rowley Regis Corporation (1944) for providing defective equipment.

· Barkway v South Wales Transport Company (1950) held that an employer must have a proper and adequate system of inspection and testing in order that defects can be identified and reported. Whereas, Monaghan v Rhodes and Son (1920) held that such defects must then be remedied.

· Pearce v Round Oak Steel Works Ltd (1969) ruled that before second-hand machinery is put into use it must be checked to ensure that it is serviceable.

· Close v Steel Company of Wales (1962) found that failure to erect suitable and effective guards around unfenced machinery liable to eject parts or material, may constitute negligence at common law irrespective of any liability for a breach of relevant regulations.

Competent Fellow Employees

· Hudson v Ridge Manufacturing Company Ltd (1957) held that where an employer is aware that the conduct of an employee gives rise to danger due to sky-larking, the employer is under an obligation to take effective steps to remedy the situation. However, if the employer is unaware that practical jokes are being played, as in Smith v Crossley Brothers (1971), he will not be found liable as such acts fall outside of the scope of the employer's business.

· Butler v Fife Coal Company (1912) held that where an employer appoints an inexperienced person to carry out highly dangerous activities, then the employer may be liable if, as a result of lack of experience, another employee is injured.

If an employer knows, or if a reasonable employer could have foreseen, that an individual employee is at greater risk than an average employee, then the employer’s duty of care towards that individual employee is correspondingly greater. In Byers v Head Wrightson and Co Ltd (1961) it was held that greater precautions are necessary when dealing with young or inexperienced workers. Whereas, in Paris v Stepney Borough Council (1951) it was held that the Council had a greater duty of care towards the remaining eye of the one-eyed man.

With regard to whether the duty of care has been breached, a key test is whether the injury suffered was foreseeable? The next test being what would a reasonable person have been expected to have done to prevent this foreseeable injury? What is deemed to be reasonable depending upon the likelihood of the injury, the possible severity and the cost of doing more. Often the test of current good practice can be applied, providing that practice does not involve obvious folly.

The employer’s duty of care extends to cover the employee whilst they are “within the course of their employment” and “acting as a reasonable employee would act”. Tests for course of employment involve:

· The time of the accident.

· The place the accident occurred.

· What was the employee employed to do.

· Did the employer derive benefit from the employee's actions.

· Did an express prohibition apply.


Defences often consider whether the injury was foreseeable and whether the defendant did all that a reasonable person could have been expected to have done to prevent such a foreseeable injury.

Other defences involve sole fault of the employee, the fact that it was an inevitable accident, that the action was carried out under statutory authority, and the necessity to allow a lesser injury to prevent a greater injury.

Volenti non fit injuria, roughly translated as the injured person having volunteered to place themselves at risk, is a defence which the courts are reluctant to accept. When they do accept it, the following tests apply:

· Lack of coercion.
· A specific risk was involved.
· Full knowledge.

In Smith v Baker and Sons (1891) it was held that mere knowledge of the risk was not enough, it had to be shown that the claimant had consented to the particular thing being done which would involve the risk and had consented to take that risk upon himself.

The Law Reform (Contributory Negligence) Act 1945 provides that where injury is caused by two or more persons, the court must decide how much each person is to blame. One of the persons involved may be held to be the injured employee.

The basic limitations period under the Limitations Act 1980 is three years from either the date on which the cause of action accrued or the date of the claimant's knowledge whichever is the later. However, the courts have wide discretion and can disregard this time limit and permit actions to proceed.

Sunday, 19 February 2012

NEBOSH Certificate Essentials: - The Six Pack

The Six Pack

  • Management of Health and Safety at Work Regulations 1999
  • The Provision and Use of Work Equipment Regulations 1998
  • Workplace (Health, Safety and Welfare) Regulations 1992
  • Health and Safety (Display Screen Equipment) Regulations 1992
  • The Manual Handling Operations Regulations 1992
  • The Personal Protective Equipment Regulations 1992

Management of Health and Safety at Work Regulations 1999

  • The assessment of risks to health and safety
  • Access to competent health and safety advice
  • Co-operation of employers and those who share premises
  • Preparing for emergencies

The Provision and Use of Work Equipment Regulations 1998

  • The assessment of machinery hazards
  • The process of installation, commissioning and use of work equipment
  • The hazards created by introducing a piece of work equipment into a workplace

Workplace (Health, Safety and Welfare) Regulations 1992

  • Common features of a workplace
  • Minimum standards of workplace hygiene
  • Identification of potential workplace hazards

Health and Safety (Display Screen Equipment) Regulations 1992

  • The interaction of a person with their workstation within the work environment
  • The design of tasks using new technology
  • The assessment of those at most risk of work related upper limb disorders

The Manual Handling Operations Regulations 1992

  • The prevalence of back injury
  • The assessment of a task, the person performing the task, the load to be moved and the environment in which it is moved
  • The preference of eliminating or minimising lifting and handling
  • Emphasis placed on mechanical handling

The Personal Protective Equipment Regulations 1992

  • Personal protection is the last line of defense
  • An assessment of the hazards a person is exposed to is required
  • Specification of the equipment standards aids selection of appropriate PPE
  • All PPE has to be maintained and has a finite life

Sunday, 5 February 2012

RIDDOR - (Reporting Of Injuries, Diseases And Dangerous Occurrences Regulations 1995)

Under RIDDOR, employers and other responsible people who have control over employees and work premises have certain responsibilities.
If any of the following events occur at work, employers and other responsible people must report the incident to the relevant enforcing authority.
What has to be reported?
If incidents involving staff, patients, contractors and visitors fall within these criteria, they should be reported under RIDDOR.

• Deaths
• Major injuries
• Accidents resulting in over three-day injuries
• Diseases
• Dangerous occurrences
• Gas incidents
Death or major injury
Line managers, the nominated person, safety supervisor and health and safety services must be informed immediately so they can report to the HSE without delay.
Health and safety services will report the accident to the HSE by telephone and complete the appropriate form within 10 days.
If there is an accident connected with work and:
• Your employee, or a self-employed person working on your premises is killed or suffers a major injury (including as a result of physical violence); or
• A member of the public (including students) is killed or taken to hospital.
Major injuries
• Fracture other than fingers, thumbs or toes
• Amputation
• Dislocation of the shoulder, hip, knee or spine
• Loss of sight (temporary or permanent)
• Chemical or hot metal burn to the eye or any penetrating injury to the eye
• Injury resulting from an electric shock or electrical burn leading to unconsciousness, requiring resuscitation or admittance to hospital for more than 24 hours
• Any other injury leading to hypothermia, heat-induced illness or unconsciousness; or requiring resuscitation or admittance to hospital for more than 24 hours
• Unconsciousness caused by asphyxia or exposure to harmful substance or biological agent
• Acute illness requiring medical treatment or loss of consciousness, arising from absorption of any substance by inhalation, ingestion or through the skin
• Acute illness requiring medical treatment where there is reason to believe it resulted from exposure to a biological agent or its toxins or infected material.

Accidents resulting in over three-day injuries
An over three-day injury is one which is not 'major' but results in the injured person being away from work OR unable to do their full range of their normal duties for more than three days.
If there is an accident connected with work (including an act of physical violence) and a person working on your premises suffers an over-three-day injury, you must report it to the enforcing authority within ten days. This applies if the person is an employee or self-employed.
If a doctor notifies you that your employee suffers from a reportable work-related disease then you must report it to the occupational health service, who will notify the enforcing authority. Reportable diseases include:
• Certain poisonings
• Some skin diseases such as occupational dermatitis, skin cancer, chrome ulcer, oil folliculitis/acne
• Lung diseases including: occupational asthma, farmer's lung, pneumoconiosis, asbestosis, mesothelioma
• Infections such as: leptospirosis; hepatitis; tuberculosis; anthrax; legionellosis and tetanus
• Other conditions such as occupational cancer; certain musculoskeletal disorders; decompression illness and hand-arm vibration syndrome.

The occupational disease flowchart shows the procedures once a disease is identified.

Dangerous occurrence
If an incident does not result in a reportable injury, but clearly could have done, then it may be a dangerous occurrence and must be reported immediately (by telephone or completing a form on our website).
Reportable dangerous occurrences include:
• Collapse, overturning or failure of load-bearing parts of lifts and lifting equipment
• Explosion, collapse or bursting of any closed vessel or associated pipe work
• Failure of any freight container in any of its load-bearing parts
• Plant or equipment coming into contact with overhead power lines
• Electrical short circuit or overload causing fire or explosion
• Any unintentional explosion, misfire, failure of demolition to cause the intended collapse, projection of material beyond a site boundary, injury caused by an explosion
• Accidental release of a biological agent likely to cause severe human illness;
• Failure of industrial radiography or irradiation equipment to de-energise or return to its safe position after the intended exposure period
• Malfunction of breathing apparatus while in use or during testing immediately before use
• Failure or endangering of diving equipment, the trapping of a diver, an explosion near a diver, or an uncontrolled ascent
• Collapse or partial collapse of a scaffold over five metres high, or erected near water where there could be a risk of drowning after a fall
• Unintended collision of a train with any vehicle
• Dangerous occurrence at a well (other than a water well)
• Dangerous occurrence at a pipeline;
• Failure of any load-bearing fairground equipment, or derailment or unintended collision of cars or trains
• A road tanker carrying a dangerous substance overturns, suffers serious damage, catches fire of the substance is released
• A dangerous substance being conveyed by road is involved in a fire or released.

(Reporting Of Injuries, Diseases And Dangerous Occurrences Regulations 1995)

Friday, 3 February 2012

Health Surveillance

Over the years health surveillance has developed and expanded. There are many definitions for the term health surveillance, but the idea behind health surveillance has always remained the same and concentrates on the well-being of the employee. As a subject, it concentrates specifically on how certain work practices and activities can adversely affect the health of any employee in the work place.
Health surveillance is implemented to protect the health of the individual employ
  • It concentrates on work processes and analyses any possible issues that may occur when an employee completes this process.
  • It looks at any adverse effects this process could have and tries to implement guidelines that would avoid any problems to the health of the employee.
  • It is vital in some jobs especially when employees are working with certain machinery or working with chemicals and substances.
How is it done?
This depends on the type of health surveillance required when people are working with something that could harm their health. Various methods can be used:
  • A 'responsible person', such as a manager, looking for a clear reaction e.g. checking for skin conditions
  • A 'qualified person' asking
    employees about symptoms, or inspecting or examining individuals for ill-health e.g. OH Nurse doing lung function tests
  • Medical surveillance by a doctor which can include clinical examination
  • Biological and biological effect monitoring to measure effects of exposure e.g. blood tests
  • Keeping individual health records for all types
Other elements include:
  • Self-checks by employees to look for and report any signs of work-related ill health. BUT to comply with regulations these have to be part of a program in which health records are kept and where employees are:
  1. Trained about signs of illness or disease, and how and when to look for them
  2. Told how and when to report signs and to who – a responsible or qualified person
  3. Also subject to periodic checks by a responsible or qualified person
  • Baseline health assessment on commencing a new post or placement
Why carry out health surveillance?
To benefit workers by:
  • Detecting harmful health effects at an early stage
  • Check that control measures are working
  • Provide data by health records to detect and evaluate health risks
  • Provide an opportunity to train and instruct employees
  • Give employees a chance to raise concerns about the effect of work on health
But carrying out the health surveillance is not enough – you must act on the results.
Line Management Responsibilities
Ensure that:
  • Risk assessments for work activity involving hazards; include consideration of the need for health surveillance
  • Where health surveillance of individual employees is deemed to be necessary, it takes place at the required frequency.
  • The results of health surveillance are acted upon to meet statutory and management requirements
  • The records of results of health surveillance are maintained to meet statutory requirements and are available to HSE Inspectors requesting them
Employee Responsibility
To co-operate fully with employers' health surveillance programmes made during working time.
If the employee does not co-operate then we cannot advise management that the employee is fit to continue in those duties.
Making sure that health surveillance works!
Be clear about the purpose, who is in charge of the program, who is accountable for it and that the results are acted upon.
Involve employees and their representatives, so that there are clear lines of communication.
Introduce the right programme.
Have clear roles and responsibilities, with competent people, and appropriate instructions and time scales.
Record and act on the results in an appropriate manner.
Certain groups may need special protection e.g. pregnant workers, young workers.
Monitor and evaluate the programme.
Health records
Health surveillance programs should include keeping a health record for each individual to provide:
    A historical record of jobs involving exposure to workplace hazards
    A historical record of the outcome
    Information for HSE or local authority inspectors
Ensure that the health records are completed routinely and systematically, are paper based or held on computer and, as a minimum, contain:
  • Surname
  • Forename
  • Sex
  • Date of birth
  • Permanent addres
  • NI number
  • Date started present job
  • Historical record of jobs involving exposure to the hazard for which health surveillance required during this employment
  • Conclusions, decisions, fitness for work (but not clinical information)
  • Date carried out
  • Name of person carrying out the health surveillance
These records are subject to The Access to Health Records Act 1990 and Data Protection Act 1998. Health records must be kept for as long as those employees are employed. Some specific regulations state that the records need to be kept for up to 50 years (e.g. Ionising Radiation). It is good practice to offer the employee a copy when they leave the company.
Where health surveillance involves inspections, examinations, taking samples and making enquiries it is essential that suitable facilities be provided. Rooms must have privacy, be clean, warm and airy, and have washing, lighting and separate toilet facilities.
In certain circumstances, medical surveillance is specified, which states that the employee requires surveillance carried out by a registered medical practitioner, who is "appointed" by the Health & Safety Executive for this purpose.
Where these requirements exist, the employer must ensure that a doctor is appointed and that he has the required access to the site, both to carry out the surveillance, and be aware of the work practices.
RIDDOR Reporting
For most businesses a reportable accident, dangerous occurrence or case of disease is a comparatively rare event. However, employers, self-employed or persons in control of work premises should be aware that they still have duties under the Reporting of Injuries, Diseases and Dangerous Occurrences Regulations 1995 (RIDDOR'95). Information from reported accidents etc. enables enforcing authorities to identify where and how risks arise and to investigate accidents as considered appropriate.