July Featured articles. Welcome to the latest edition of the health & safety newsletter.

Transcription

1 July 2011 Welcome to the latest edition of the health & safety newsletter. Featured articles HSE workplace fatality figures shows increase in workplace deaths Information on recently published HSE figures, which are showing an increase in the number of people fatally injured. To appeal or not to appeal We focus on the case of Chilcott v Thermal Transfer Limited and how it has set out the way Tribunals will consider appeals against notices issued by inspectors for health and safety breaches. Hungarian n driver jailed for tachograph fraud More details about a HGV driver who was jailed for failing to take a break on a 1300 mile journey between Hungary and North Wales. Parliamentary Bill to scrap no win no fee agreements has first reading We look in to The Legal Aid Sentencing and Punishment of Offenders Bill, which will abolish no win no fee Conditional Fee Agreements. Shell UK sentenced 1.24 million for gas blast More information on the fining of Shell UK following a joint prosecution by the Health and Safety Executive and Environment Agency after a gas explosion at Bacton gas terminal in Norfolk in Demolition firm fined following cinema collapses onto public road A firm has been fined following the collapse of a cinema they were demolishing onto a busy dual carriageway at rush hour. Tesco fined for not reporting accidents Tesco has been fined 48,000 and ordered to pay 25,000 in costs following a successful prosecution by Bracknell Forest Council.

2 HSE workplace fatality figures shows increase in workplace deaths Recently published HSE figures show an increase in the number of people fatally injured. The figures show that 171 people were fatally injured in 2010/2011 compared to 142 in 2009/2010. Agriculture accounts for 34 fatalities, construction 50 fatal injuries, manufacturing 27 fatal injuries and the services sector being responsible for 47 fatalities. The increase has raised concern that fatalities are only set to rise further when the government cuts take effect. Judith Hackett, Chair of HSE, confirmed that the figures were disappointing but that the UK s record is still among the best in Europe. HSE say in order to get a true picture of the trend in workplace fatalities it is necessary for comparisons to be made to an average figure calculated on a number of years, and on this basis, fatalities have declined by 17% In response to the figures, Brendan Barber, General Secretary of the TUC, voiced his concerns that things will only get worse as the effects of the recession subside. He said Traditionally, injury rates increase as we come out of a recession. If we are going to stop this year s increase becoming a long-term trend we need more inspections in the workplace, not fewer. To see the figures, see HSE s website at

3 To appeal or not to appeal The number of enforcement notices served by HSE and Local Authorities rose last year for the second successive year. The case of Chilcott v Thermal Transfer Limited has set out how Tribunals will consider appeals against notices issued by inspectors for health and safety breaches. Compliance with an enforcement notice that a business does not believe to be justified can have wide ranging ramifications. A subsequent prosecution may seize on the compliance with the notice as a business accepting that there was a health and safety failing, for example, making changes to a system of work is often used by the prosecution as evidence that a business could have done more to ensure the health and safety of its employees, or consider a previous notice to be an aggravating feature. For business the fact that enforcement notices are also displayed on a public database for up to 5 years is important to their reputation and future operation. More and more businesses are asked to disclose such notices when tendering for work or renewing insurance when a clean health and safety record can set one business apart from others. The case of Chilcott v Thermal Transfer Limited held that when hearing an appeal of an enforcement notice, the Tribunal should make an assessment of the risk at the time of the issue of the notice and are not only to consider the genuineness or reasonableness of the health and safety inspector's opinions. In doing this they can consider all of the information that was available at the time of its issue including documents that were not considered by the issuing inspector. If you want advice on appealing a notice then please contact the Regulatory Services Unit on Hungarian driver jailed for tachograph fraud A HGV driver has been jailed for failing to take a break on a 1300 mile journey between Hungary and North Wales. A joint police and VOSA operation stopped Hungarian Zoltan Kelences, aged 32, on a routine check on the A55 near Bangor. Investigations identified that he had falsified documents including tachograph records and used a magnet device to disrupt the tachograph readings. Mr Zoltan pleaded guilty to charges of fraud and failing to ensure that proper tachographs were being kept and was sentenced to 12 weeks in prison for each offence. He was also disqualified from driving for 12 months and was required to forfeit his vehicle.

4 Parliamentary Bill to scrap no win no fee agreements has first reading The Legal Aid Sentencing and Punishment of Offenders Bill which will abolish no win no fee Conditional Fee Agreements (CFAs) has received its first reading in the House of Commons. The Bill sets out new rules for funding civil litigation cases. Success fees under CFAs will no longer be recoverable from a losing party in proceedings. Currently, where solicitors acting under a CFA successfully make a claim for their client, they can not only recover their base costs, but also a success fee of up to an additional 100% of those base costs. 100% is payable where a matter has been successfully fought at trial, making the cost risk for any Defendant to defend a matter very significant. Claimant solicitors will still be able to work under agreements that provide for a success fee however, it is envisaged that this will be recovered from their client. The Bill leaves the level of any success fee down to further regulation although it does set out that success fees will be capped and some parts of the claim will be excluded in calculating the success fee, including amounts awarded for future care and loss. This contingency type agreement is currently prohibited between solicitors and clients when engaging in litigation however, will be allowed between solicitors and their clients and those providing advocacy or claims management services. The Bill also states that premiums for after the event insurance taken out by the claimant will not be recoverable against the losing party except in certain limited circumstances. To see the full text of the Bill and to follow its progress, please see the Parliament website: Shell UK sentenced 1.24 million for gas blast Shell UK has been fined 1 million and ordered to pay 242,000 in costs following a joint prosecution by the Health and Safety Executive and Environment Agency after a gas explosion at Bacton gas terminal in Norfolk in The investigation into the explosion identified that it was caused when hydrocarbon liquid leaked into the waste water treatment section which reached an unsafe level and blew a concrete roof from a tank. Prior to the explosion Shell had been warned on a number of occasions by their employees of the presence of high levels of North Sea condensate, a highly-flammable hydrocarbon. Furthermore it was found that other basic errors contributed to undetected hazard as temperature gauges on the tanks were wrongly placed. As a result 850 tonnes of fire water and fire fighting foam was released into the North Sea as Shell failed to close the sea gate until around half an hour after the fire started. Shell also neglected to notify the Environment Agency so measures to mitigate the environmental implications of the explosion failed to be implemented. A prosecution was brought against Shell who admitted two breaches of health and safety legislation and five breaches of environmental legislation.

5 Judge Martin Binning said: Management were sleepwalking into danger, no matter what was brought to their attention. What is not in doubt is that what took place could have been fatal for those in the vicinity of this lethal blast. The Crown estimates that 10 people could have been killed and that is not taking into account the injuries, serious injuries and further issues that can follow from such a situation. No one was injured in the explosion as it occurred when employees were handing over between shifts which meant that personnel were in the office section of the site. Demolition firm fined following cinema collapses onto public road A firm has been fined following the collapse of a cinema they were demolishing onto a busy dual carriageway at rush hour. Gaskells Demolition Services Ltd was demolishing an art deco cinema dating from 1934 to make way for a supermarket. It had erected scaffolding at the front of the building and was using a high reach excavator to demolish small sections of the building. On 17 June 2010 a stone fell from the top of the building onto the scaffolding destabilising it which resulted in the scaffolding and part of the building itself collapsing. The debris from the collapse fell onto a busy dual carriageway at rush hour which had to be closed for a number of hours. No one was hurt but there was one near miss and a car was damaged as a result of the collapse. The HSE investigation identified that the company had not implemented an exclusion zone around the building work nor had it applied to the Council for the road to be closed whilst the work was taking place. The Court ordered the company to pay a 5000 fine and 3000 in costs. HSE inspector Anthony Polec said: The risk of buildings unexpectedly collapsing is well known in the demolition industry but Gaskells failed to take adequate action to prevent lives being put in danger. The company should have put suitable measures in place to protect the public, such as applying to close the roads while the demolition work took place and setting up an exclusion zone to keep the public away. It could also have erected facade retention scaffolding that could support the building, rather than relying on employees to keep a lookout for passers-by. This was entirely inappropriate given the demolition work was taking place next to a busy dual carriageway on a weekday morning. It s only luck that no one was seriously injured.

6 Tesco fined for not reporting accidents Tesco has been fined 48,000 and ordered to pay 25,000 in costs following a successful prosecution by Bracknell Forest Council. Charges brought against Tesco included failing to provide a safe system of work for loading and unloading vehicles and failing to provide information, instruction, training and supervision to operatives. During the course of investigations it was also discovered that three accidents which occurred in two different stores were not reported under RIDDOR including an accident which resulted in an employee fracturing his ankle while unloading a truck and another which resulted in a broken toe. Tesco admitted the charges and were sentenced at Bracknell Magistrates Court. This update does not attempt to provide a full analysis of those matters with which it deals and is provided for general information purposes only and is not intended to constitute legal advice and should not be treated as a substitute for legal advice. Weightmans LLP accepts no responsibility for any loss that may arise from reliance on the information in this update. The copyright for this update is owned by Weightmans LLP 2011.