Key Developments in Health and Safety law

Transcription

1 Key Developments in Health and Safety law Mark Tyler Managing Director Salutaris Legal

2 Löfstedt key recommendations Review by HSE of all ACoPs Management Regulations ACoP now withdrawn Simplified revised COSHH ACoP (L5) Revised Legionnaires Disease ACoP (L8) Revised Workplace Regs ACoP (L56)

3 Löfstedt key recommendations Exempt the self-employed from H&S legislation where they pose no risk to others Part of the Deregulation Bill HSE now favours its Option 2 Exempting from health and safety law, the self-employed who: Don t employ others, and pose no potential risk of harm to others, and who do not work in a high risk sector as prescribed by the Secretary of State

4 Löfstedt key recommendations Lobby the EU for proportionality and more evidence-based regulation informal working group meetings on risk-based policy-making in the European Parliament What else?

5 Ongoing consolidation Mines Explosives No major consolidation of the six-pack etc More revocations, April 2014 Around 20 (mostly redundant) H&S regs revoked since the Löfstedt Report Seven sets of regulations made under the Factories Act 1961 and the Offices, Shops and Railway Premises Act 1963 Few new H&S regulations The Control of Artificial Optical Radiation at Work Regulations 2010 The Health and Safety (Sharp Instruments in Healthcare) Regulations 2013

6 RIDDOR changes From April 2012 The period of absence that requires accident reporting rose from three to seven days. Employers have 15 rather than 10 days from the date of the accident to report Injuries leading to a period of absence of over three days still need to be recorded.

7 RIDDOR changes From October 2013 Main changes: List of 'major injuries' to workers replaced with a shorter list of 'specified injuries' The old 47 types of industrial disease replaced with eight categories of reportable work-related illness Fewer types of 'dangerous occurrence' require reporting There are no significant changes to the reporting requirements for: Fatal accidents Accidents to members of the public Accidents resulting in a worker being unable to perform their normal range of duties for more than seven days

8 First-Aid From 1 October 2013 Health and Safety (First Aid) Regulations 1981 have been amended, removing the requirement for HSE to approve first-aid training and qualifications.

9 Löfstedt key recommendations Remove, or mitigate, strict liability in H&S regulations Amended Section 47 HSWA - What the new law says For accidents and ill-health occurring from 01/10/2013 claimants will have to prove negligence against the defendant, instead of being able to rely on breach of statutory duty. The difference is that before in some cases it was only necessary to prove a H&S regulation had been contravened, irrespective of whether or not the defendant could reasonably have been expected have prevented the injury.

10 Changes to personal injury claims costs rules April 2013 No win no fee CFAs remain available in civil cases, but the additional costs involved (success fee and insurance premiums) are no longer payable by the losing side. No win no fee DBAs are available in civil litigation for the first time. Lawyers paying referral fees banned in personal injury cases. Claimants' damages are protected: the fee that a successful claimant has to pay the lawyer - the lawyer's 'success fee' in CFAs, or 'payment' in DBAs - is capped at 25% of the damages recovered, excluding damages for future care and loss. A new regime of 'qualified one way costs shifting' (QOCS) is introduced in personal injury cases. Claimants who lose, but whose claims are conducted in accordance with the rules, are protected from having to pay the defendants costs. New costs sanction on defendants to encourage earlier settlement of claims.

11 Fee for Intervention HSE has a legal duty to recover its costs Where a material breach is identified And formal intervention is required Includes the costs of initial contact, correspondence, visits, notices, and pre-prosecution work Standard fee rate of 124ph to be applied, plus fees incurred Two tier right of appeal to a review board with additional costs risk to unsuccessful applicants

12 Fee for Intervention What is a material breach? A material breach is when, in the opinion of the HSE inspector, there is or has been a contravention of health and safety law that requires them to issue notice in writing of that opinion to the duty holder.

13 Fee for Intervention Invoices and revenues up to November Notices Issued Notices Issued Oct/Nov 2012 Dec/Jan 2013 Feb/Mar 2013 Apr/May 2013 June/Jul 2013 Aug/Sep 2013 Oct/Nov 2013

14 Fee for Intervention Invoices and revenues up to November ,000, ,800, ,600, ,400, ,200, ,000, , , , , Total value Notices Issued

15 Fee for Intervention Notices by sector up to November 2013

16 Fee for Intervention Objections and appeals up to June 2013

17 Fee for Intervention Threats to inspectors

18 Prosecutions

19 Prosecutions by HSE

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21 Levels of fines Average HSE fine by year Average HSE fine by year

22 Sentencing cases Mobile Sweepers (Reading) Limited (2014) Corporate Manslaughter company fined 8, ,000 costs exhausting its assets Director fined 183, ,000 costs and 5 years disqualification as a director R v Sellafield Ltd; R v Network Rail Infrastructure Ltd (2014) Court of Appeal upheld fines of (1) 700,000 for offences arising out of the disposal of radioactive waste and (2) 500,000 for an offence arising out of a collision at an unmanned level crossing, causing very serious injuries to a child.

23 Case law accident claims Yates v National Trust (2014) Landowner not liable for injury suffered by the subcontacted worker of an independent contractor Hide v Steeplechase Co (Cheltenham) Ltd (2013) Reg 4 Provision & Use of Work Equipment Regs Defendant failed to show accident was unforeseeable Donkers and another v Storm Aviation Ltd (2014) Claims concerning an injury to a German national (including recoupment of welfare payments by the German state) can all be litigated under English law Cox v Ministry of Justice (2014) MoJ vicariously liable to staff member for injury caused by negligence of a prisoner doing kitchen work

24 Questions?