ABSTRACT

First published in 2001. Routledge is an imprint of Taylor & Francis, an informa company.

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INTRODUCTION: THE CONCEPT OF RISK MANAGEMENT

This book sets out the authors’ understanding of the law of occupational health and safety in England today, as laid down in legislation and judicial statements. Broadly, the law is likely to be the same in all three jurisdictions that make up the UK, particularly as the three jurisdictions are counted as one

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CHARACTERISTICS OF THE LAW

Commitment to safe systems The British approach is to allow victims of industrial accidents and diseases to sue in the civil courts for compensation. Early recognition that the fear of having to pay compensation was not a sufficient incentive to induce organisations to operate safely led Parliament to legislate standards for the

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Section 2(1) does not attempt to itemise what the employer must do, although s2(2) does, ‘without prejudice to the generality’ of s2(1), give an indication of some of the matters that have to be dealt with. The intention of s2(1) is to impose upon employers the task of reviewing the totality of their operations, to ensure that, in every aspect, they are as safe as is reasonably practicable. Regulations made under the 1974 Act have spelt this out, particularly the Management of Health and Safety at Work Regulations. These require employers to make an assessment of the risks to which their employees are exposed and then set up systems appropriate for dealing with these risks. Employers who fail to comply with the duties contained in the Health and Safety at Work Act 1974 and regulations made under it are liable to criminal prosecution. Safe workplaces are unlikely to be achieved unless those who work there are informed of the need to operate safely, trained to ensure that they know how to operate safely, and monitored to ensure that safe systems are actually being operated. Safe systems depend not only on investing in plant and equipment, but also on investing in people. Safety and human resource management are, therefore, closely related and it is difficult to divorce occupational health and safety law from employment law more generally. • The organisation that wishes to avoid civil and criminal liability has considerable reason to endeavour to set up and maintain safe systems. • In setting up systems, employers will need to consider not merely investment in plant and equipment, but also human resource management. The penal element in the law

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In the broadest sense, however, both the criminal and the civil law impose ‘penal’ sanctions. The person who is convicted of a criminal offence is likely either to have to pay a fine or to serve a term of imprisonment: the defendant who loses a civil case is likely to have to pay the claimant (victim) a large sum of money to compensate for the injury which has been suffered. The penal element of civil law is masked where compensation is paid by the defendant’s insurance company. Punishment is normally considered as related to wrongdoing. Unfortunately, however, in health and safety matters, there is not necessarily a direct co-relationship between wrongdoing and injury suffered. On the one hand, a minor lapse may lead to a major injury and, on the other, good fortune may decree that reprehensible behaviour causes little or no injury. The criminal law is properly committed to the punishment of wrongdoing; so, it can properly relate the punishment to the behaviour of the accused, rather than to the consequences of the accused’s behaviour. Ideally, wrongful behaviour will be identified before injury occurs. Health and safety legislation aims to achieve this, because it decrees that the offence is in failing to observe the standards which safety legislation has prescribed: the offence is committed if the conduct is unlawful, whether or not any personal injury has occurred. Nevertheless, in practice, it may be difficult to persuade a court that a situation is dangerous if, over many years, no injury has occurred. On the other hand, if a relatively minor lapse has caused a major catastrophe, there tends to be an emotive reaction: it is easy to look for a human scapegoat. At the present time, even if catastrophe is attributable to a natural cause, such as exceptionally heavy rainfall, questions are asked as to whether someone ought to have anticipated the situation and taken pre-emptive action, such as prohibiting urban development in the flood plain of a river. The dilemma of the civil law is greater than that of the criminal law: it has to balance the needs of the victim against justice to the ‘wrongdoer’. One classical theory was that in civil law, as in criminal law, only those who were blameworthy should be required to pay compensation. Thus, it was said of civil (tort) liability by JW Salmond, author of a seminal text:

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Relevance of foresight

Both the criminal and the civil law accept that absolute safety is not achievable. Both branches of the law are concerned with the containment of foreseeable risks. It has been noted that there are two ways in which a claimant may found a

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Foreseeability is related to experience It may not be foreseeable that if glass ampoules containing anaesthetic are immersed in disinfectant the anaesthetic will be contaminated, but events may prove that this can happen. The fact that an accident has occurred once may make it foreseeable that it will happen again (Roe v Ministry of Health, below) and it may even be probable that it will happen (Bolton and Others v Stone)!

In discussions about occupational health and safety it is very easy to fall into a sort of shorthand and speak – and perhaps even think – merely of prevention of accidents. It must not be forgotten, however, that it is just as important to prevent persons at work suffering damage to their health as it is to protect them from suffering accidental injury. Both the criminal law and the civil law For nearly two centuries, Royal Commissions and Select Committees have investigated and reported on various aspects of occupational health and safety. For the last half century safety experts and academics have produced a considerable amount of literature on the subject. A recurrent theme in this literature is the cost of accidents and ill health to the victims, to industry and

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Prevention is better than compensation

In 1931 the Chairman of the Uniform Boiler and Pressure Vessel Law Society Inc and sometime Superintendent, Engineering and Loss Control Division, the Travellers Insurance Company, published in the USA a book that was to become a classic, recognised in both the USA and the UK and the foundation on which much subsequent work was based:

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Risk management

In 1970 the British Safety Council took up the theme in the following booklet: by James Tye

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Government inquiry into means of improving workplace safety

In 1972, a Select Committee of the House of Commons, known as the Robens Committee, reported: Report of the Committee 1970–72

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Academic criticism of the tort system in the 1990s

In the years since the Pearson Report was published some of its recommendations have been followed, but, as indeed the Committee recommended, the tort system remains. As the following extract from a recent radical text indicates, not everyone is satisfied:

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Governmental agency investigates cost of accidents

Over the years, the number of deaths and injuries and the causes of them have changed but the problem of costing them remains. In 1993 the Health and Safety Executive published a report on five case studies. Possibly the most significant outcome of the studies related to the ratio of insured costs to uninsured costs. The situation may be compared with an iceberg: the hidden

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THE BACKGROUND TO THE MODERN CIVIL LAW

I THE ROLE OF CASE LAW The rules governing accident compensation law have been very largely judge- made. In this respect accident compensation law is in sharp contrast to accident prevention law: in the latter, the behaviour that people are expected

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PHASES IN THE DEVELOPMENT OF THE LAW

It is convenient to regard the development of this branch of personal injury law as falling into three periods: 1897;

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This short judgment, given in the belief that there were no precedents, touches on a number of the issues which were to be, and still are, to some extent, central to compensation cases. It is therefore worth identifying them. 1 The contractual relationship The declaration which was the basis of the appeal (under a procedure which has been long since obsolete) described the plaintiff as ‘servant’ of the defendant; that is, an ‘employee’. Lord Abinger questioned whether the contract of employment gave rise to any duty on the employer to ‘cause the servant to be safely carried’. 2 General duty Lord Abinger suggested that independently of the contract there might be a general duty on the employer, but did not develop this proposition. A general duty might be implied in all contracts of a certain type, such as employment contracts. It might, alternatively, be a duty arising independently of the existence of a contract; in modern law such duties arise in the tort of negligence. 3 Vicarious liability Lord Abinger was alarmed lest the employer be liable for the wrongdoings of a wide variety of persons. The modern rule is that an employer is liable for the wrongdoings employees commit when in the course of their employment. Some of the people in examples given by Lord Abinger were not employees; indeed he suggested that the defendant’s liability might arise from the relationship of principal and agent rather than that of employer and employee. 4 Plant and equipment There are suggestions that the employer’s van might not have been sound. Alternatively it might not have been appropriate for the load that had to be carried, or the goods might not have been properly loaded onto the vehicle. The nature and extent of the employer’s liability for plant and equipment, and the instruction and supervision of employees in the use of it remain important issues. 5 Personal responsibility of the employer The judge stated that the employer ‘is, no doubt, bound to provide for the safety of his servant in the course of his employment, to the best of the judgment, information, and belief’. This suggests that there may be an obligation on the employer quite apart from vicarious liability.

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Fault or strict liability? There is no suggestion of an absolute duty to provide either a safe workplace or safe working arrangements. The propositions about the vicarious liability of the employer assume that such liability would only arise in relation to the ‘consequences of the negligence’ of those named in the examples. The judge’s concern on this matter was exactly that the employer might be responsible for the wrongdoings of these people, even though he, the employer, might not personally be at fault. That is the employer might be strictly liable for the wrongdoing of others. This indeed, is the nature of vicarious liability today. 7 The personal responsibility of the employer This is also addressed in terms of fault (negligence) rather than strict liability. It is said that the master cannot be required to take more care of the servant than he may be expected to take of himself. 8 Personal responsibility of the employee The judgment imposes a considerable responsibility on the employee personally. It is said that he may decline dangerous work. It also says that he is possibly better placed than the employer to evaluate the dangers (it suggests that this may be because the employee is on the spot, while the employer may be elsewhere). It concludes that the employee has a duty towards the employer, as well as towards himself, to ensure that the task is done safely, so that the employer’s interests do not suffer. (b)Developments after Priestley v Fowler

While the themes identified in Priestley v Fowler recur throughout the history of this branch of the law, their development in the nineteenth century did not assist the victims of industrial accidents to obtain compensation. The relationship between employer and employee imposed upon the

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(ii) Breach of statutory duty may create civil liability Nineteenth century regulatory legislation, such as the Factories Acts, which required persons, such as employers, to comply with safety standards, normally provided for criminal sanctions to be imposed on those who failed to meet the required standards. Towards the end of the century the courts decided that those who suffered injury as the result of a failure to comply with standards imposed for their protection might use the statutory provision as the basis on which to found civil liability. The principle thus allowed has remained part of the law up until this day, though it will in due course be seen that it has not always been accepted without dispute and in every case there may be questions as to whether the principle is applicable in relation to the particular statute relied upon. The principle was very helpful to accident victims at a time when the common law of negligence had yet to be developed. The following case is usually regarded as the origin of the principle: GROVES v WIMBORNE (LORD) [1898] 2 QB 402 The action was to recover damages for an alleged breach by the defendant of the statutory duty imposed upon him by s 6 of the Factory and Workshop Act 1878, in allowing certain dangerous machinery to be and remain unfenced, causing the worker to suffer personal injury. The worker was a boy employed by the defendant at Dowlais Iron Works. Among the machinery in the works was a steam winch, at which the victim was employed. The winch had revolving cogwheels that, if unfenced, were dangerous to a person working the winch. There was evidence that there had originally been a guard to these cogwheels, but it had been removed and there had been no guard throughout the six months of the victim’s employment. The victim’s right arm was caught by the cogwheels and was so badly injured that the forearm had to be amputated. The judge held that an action would not lie for breach of the statutory duty imposed by s 6, but the damages were provisionally assessed at the sum of £150. The judge entered judgment for the defendant and the victim appealed. The following extracts are from the judgment of AL Smith LJ, given in the Court of Appeal, beginning at p 406 of the report:

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–1948

Within the period covered by the Workmen’s Compensation Acts the accident victim had, as the extract above indicates, to elect between a common law action for damages and a claim for income maintenance under these Acts. The original legislation was amended from time to time, and later amendments brought prescribed industrial diseases within the scheme. A prescribed

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THE FRAMEWORK OF CIVIL LIABILITY TODAY

It has been noted that from the very first case a number of fundamental issues were discernible as to the framework of civil liability. These issues have retained their importance throughout the long development of liability for personal injuries. They are of relevance to both common law liability and liability for breach of statutory duty. In this chapter consideration will be

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The fundamental rule of both civil and criminal law is that the party who makes an allegation of wrongdoing (that is, the claimant in civil law and the prosecution in criminal law) has to bring evidence to prove that allegation. The question is: How heavy is the burden of proof which has to be discharged in order to prove the allegation? The burden of proof will depend on the nature of the liability. Broadly, liability, criminal or civil might be: (a) absolute – That is a person has to ensure that a goal is achieved or a state of affairs maintained and is liable if the stipulated state of affairs did not exist without any room for consideration of why this might be. English law very rarely imposes absolute liability; (b) strict – That is a case is made out as soon as it is shown that the required standard has not been achieved: the burden of proof then shifts to the alleged wrongdoer to establish a defence by proving the existence of circumstances which satisfy the court that liability should not be imposed; (c) fault liability – The alleged wrongdoer will not be liable unless the person making the allegation can satisfy the court both that the party concerned has brought about the wrongful state of affairs and that the situation occurred because of the wrongful conduct of that party. In civil law the proscribed behaviour is negligent conduct. Whether the defendant has been negligent is considered objectively: the court is not concerned with the defendant’s state of mind – it is only concerned with how reasonable people would evaluate the defendant’s conduct. Common law favours fault liability

In civil law, common law liability for causing personal injury tends to be fault liability. Only two areas of liability are at all relevant, ie, the torts of negligence and battery. There are few industrial injury cases in which the allegation is that the defendant intended to attack the claimant; in practice therefore only the tort of negligence is relevant. The courts have discouraged plaintiffs from

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Statutory criteria

Where civil actions are brought for breach of statutory duty the claimant has to establish that the statutory duty has been broken. The claimant has, therefore, to satisfy the court that the defendant has failed to achieve the standard required by the particular statutory duty. Traditionally many statutory duties have, in criminal law, imposed strict liability. A much

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terminology, be regarded as self-employed master craftsmen; and following the reduction of the manufacturing base of the British economy there has, in the last 10 years, been a move towards part time and temporary employment and an encouragement of small businesses under the control of the person who provides the labour on which the business depends. While the distinctions are less significant today, some understanding of history is necessary to appreciate the case law. Judicial tests

Following the decision in Yewens v Noakes (1880) the courts were constantly involved in developing tests by which servants might be identified in order to determine the rights and duties of the parties in dispute. Such disputes would normally, but not necessarily, be between an employer and a worker; they could, however, be between one of the parties to the employment contract and

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Declining importance of distinction

In the last 30 years it has become somewhat less important to distinguish the employees of the employer from other workers for the purposes of determining liability to compensate for industrial injury. This removed one of the reasons for distinguishing the employee from other

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Relationship between personal and vicarious liability

Vicarious liability is well suited to attach liability to the employer for a road accident caused by the negligent driving of an employee driving the company van in the course of employment. On facts such as this the employer will be made strictly liable; the employee’s conduct is negligent, but the employer may well be without fault.

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required the hirer to accept the risks. If, therefore, the hirer rather than the owner of the crane were the insured, the party who took out the cover was not liable and the party who was liable would not have been insured. The House of Lords found that the organisations could not through their contractual arrangements determine the legal question of who was the employer: they could have agreed that in cases where the (general) employer was vicariously liable for the driver’s negligence the other organisation would indemnify the employer. It has been noted that an organisation may face either employer’s liability or public liability. The former Workmen’s Compensation Acts did not impose a statutory duty on employers to insure against liabilities arising from that legislation. Wiser employers did take out insurance cover. While an employer is now required by the Employers’ Liability (Compulsory Insurance) Act 1969 to have insurance to cover injuries suffered by its employees, there is still no similar obligation to have public liability insurance. The expectation that the employer will have funds to meet liability has tended to encourage litigation against employers. DAVIE v NEW MERTON BOARD MILLS AND ANOTHER [1959] AC 604 This was an appeal to the House of Lords by a maintenance fitter, employed by the first defendant, injured while attempting to separate two metal parts by using a drift (that is a tapered bar of metal intended for this purpose) and a hammer. When he struck the drift with the hammer the drift broke and a piece entered the appellant’s eye. The victim sued his employers, and at a later stage the manufacturers of the drift were joined as defendants. At the trial it emerged that the fault in the drift had been entirely due to the negligence of the manufacturer. There had been no personal negligence on the part of the employers in purchasing or maintaining the drift. If liability were attached to the employers they would, in effect, have been made vicariously liable for the negligence of the manufacturers of the tool. The House of Lords declined to impose such liability, holding that the employers had discharged their personal duty to take reasonable care by buying from a reputable source a tool whose latent defect they had no means of discovering. The following extract from the judgment of Viscount Simonds, beginning at p 624, indicates the reasoning of their Lordships:

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LIABILITY FOR PERSONAL INJURY 1: DUTY OF CARE IN THE TORT OF NEGLIGENCE

INTRODUCTORY NOTE Persons who claim damages because they have suffered injury at work normally base their claims on the tort of negligence. It may be possible to claim there has been a breach of statutory duty, but this is less common now

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THE DUTY OF CARE

Impact of Donoghue v Stevenson It has been noted that, in Donoghue v Stevenson (1932) Lord Atkin declared: Duty and conduct are entwined in Lord Atkin’s statement, but it is generally

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did, however, considerably extend the concept of safe systems of work. After Donoghue v Stevenson (1932) it was immediately arguable that the worker might, in a sense, be regarded as a ‘consumer’, to whom the manufacturer owed a duty of care in relation to products. Additionally, there is, in the decision, an indication that, in order to discharge their duty, the manufacturer may have to work with the employer to identify the uses to which the employer intends to put the substance and then take into account whether this use creates any risk which might not be present in other types of user. The existence of the manufacturer’s duty was not denied in Davie v New Merton Board Mills (1959) which was in effect an employee’s attempt to make his employer vicariously liable for the negligence of the manufacturer of a tool. The Employer’s Liability (Defective Equipment) Act 1969, by allowing the employer to seek an indemnity from the manufacturer, also impliedly accepted that the manufacturer did have a duty to the employee. All these authorities, however, relate more to articles than to substances. It must be questionable whether the statute, being concerned with plant and equipment could be deemed to extend to substances (equipment is interpreted as ‘includes any plant and machinery, vehicle, aircraft and clothing’). Today, the workers might have preferred to sue ICI as producers under the Consumer Protection Act 1987. Liability under that Act is strict and it is not immediately apparent that ICI would have been able to plead any of the defences provided by the statute. Finally, the Dunlop and GKN cases mark an increased awareness, due partly to improved medical knowledge, and partly to changing forms of manufacturing processes, that workers are as much, if not more, at risk of suffering injury from exposure to dangerous substances as they are from exposure to dangerous plant and equipment. We are all neighbours It will be apparent that the majority of the cases determining who, apart from the employer, owed a common law duty of care to the worker were heard in the 1960s. The issue of determining relationships giving rise to a duty of care, in law, was really laid to rest by the following case. HOME OFFICE v DORSET YACHT CO LTD [1970] AC 1004 The case concerned the Home Office’s liability for property damage caused by Borstal boys when they escaped from the supervision of Borstal officers. The following brief extracts from the judgment of Lord Reid, beginning at p 1025, serve to clarify the attitude of the House of Lords:

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(b) What is the content of the duty? Whether a duty is owed is a matter of law for the judge: whether the duty has been broken is a matter of fact. If, as was formerly the case, a jury were involved, the jury would decide whether the duty had been broken. Before, and for some years following, Donoghue v Stevenson, the content of the duty was a matter for the judge and the content varied from one category situation to another. This was especially the case as between employers’ liability and the two categories of occupiers’ liability. Employers’ liability The distinction between the content of the employer’s duty and that of other categories of duty relationships was emphasised by Wilsons and Clyde Coal Co Ltd v English (1938) which, it has been noted, in an earlier chapter, spelt out the employer’s personal duty in order to disentangle it from the doctrine of common employment. Subsequent cases built on the framework laid down in that case. Some of these cases might more properly be deemed today to be concerned with whether factually the duty had been broken (for example, Bux v Slough Metals Ltd (1974)) and they are therefore considered later under breach of duty. Occupiers’ liability to visitors Until the Occupiers’ Liability Act 1957 the duty of the occupier depended on the status of the visitor: thus within occupier’s liability, there were several sub-categories of duty. For example, the occupier’s liability to an invitee was different from that to a licensee. It was often difficult to determine to which category the visitor belonged. One of the purposes of the 1957 Act was to simplify the common law by removing the legal significance of these categories. This is now covered by the Occupiers’ Liability Act 1957. This Act was passed in order to simplify the earlier common law. It made the duty of the occupier to all its lawful visitors a duty of reasonable care in all the circumstances. OCCUPIERS’ LIABILITY ACT 1957

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Liability for psychiatric injury

Liability for causing a person to suffer nervous shock can be traced back to (1901) The plaintiff was a pregnant barmaid who suffered serious shock when the defendant’s horses were negligently driven into the public house where she was working. As a result her child was born

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here, because their Lordships distinguished between ‘primary’ and ‘secondary’ victims. Primary victims were participants. That is, persons present at the catastrophe and at risk of personal injury. Secondary victims were persons, who were either mere bystanders (with no entitlement to compensation) or those who witnessed the suffering of their loved ones, being physically present, either at the time and place of the disaster or seeing their loved ones in the immediate aftermath of the disaster. Their Lordships suggested that rescuers might be classified as ‘primary’ victims, even if not at risk of personal injury. Alcock v Chief Constable of South Yorkshire Police has been interpreted restrictively, as the following cases demonstrate. Claimant was neither at personal risk nor a rescuer MCFARLANE v EE CALEDONIA [1994] 2 ALL ER 1 The principal judgment of the Court of Appeal was delivered by Stuart-Smith LJ. It is largely concerned with identifying the facts. These may be summarised as follows. The case concerned the catastrophe on the oil platform Piper Alpha, on 6 July 1988, in which 164 persons lost their lives and many more were seriously injured. One of the vessels which went to assist was the Tharos. At the time that the emergency arose, the claimant was in bed on board the Tharos, but he got up and went out on to the walkway; from this position he witnessed a rescue boat engulfed in a fireball, killing its occupants.He also saw men jumping from the platform to their death. He was at no time nearer than 100 metres to the platform. No one on the Tharos suffered any physical injury that night and the vessel itself was undamaged, apart from some blistering of paint. He claimed that, as a result of his experiences that night, he suffered psychiatric injury. The matter came before Mrs Justice Smith on a preliminary issue as to whether the defendants, who were the owners and operators of the Piper Alpha, owed the plaintiff a duty of care to avoid causing him psychiatric injury. She found that the claimant had been a participant in the events; he had been in fear of his life and it was plainly foreseeable that a man of reasonable fortitude might suffer psychiatric injury if exposed to the shock of being in fear of his life; findings which resulted in her giving judgment for the claimant. The defendants appealed against her judgment. On appeal, Stuart-Smith LJ found that there were three situations in which a person might be a participant when he suffered psychiatric injury: first, where he was in the actual area of danger, but escaped physical injury by chance or good fortune; secondly, where the claimant was not actually in danger but, because of the sudden and unexpected nature of the event he

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LIABILITY FOR PERSONAL INJURY 2: BREACH OF DUTY

The judge, hearing a claim for common law negligence, listens to the evidence presented by the parties and decides whether the defendant has broken the duty of care owed by the defendant to the claimant. As was pointed out by Lord Somervell in Qualcast v Haynes (1959) the findings of fact, which judges

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The following cases indicate the criteria that the courts will take into account when deciding whether conduct has been negligent. Arguably, nearly all of these cases are concerned with the prevention of injury that is foreseeable. (a) Defendants are expected to learn from experience

A brief reference has already been made to Stokes v GKN (1968), a case which illustrated how industry is expected to learn from experience, their own and that of others, so that, while one accident may be unforeseeable and, therefore, excusable, a second may not. This point was well made in the following case. [1954] 2 QB 66

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(i) Employer must instruct and train If the defendant is sued as an employer by one of its own employees, rather than as an occupier by a visiting worker, it is more likely that it will be expected to have taken positive steps to safeguard the claimant. If the claimant is an employee, then what is expected from the defendant employer will depend on the skill, training and experience of the claimant. BUX v SLOUGH METALS LTD [1974] 1 All ER 262 The claimant was a Pakistani with a limited command of English, who worked from 1968 in the defendant’s die casting foundry. His work involved removing molten metal from a furnace by means of a ladle and pouring from the ladle into a die. He was trained for the work without being instructed to wear goggles. In 1969 a new works’ director purchased goggles and supplied a pair to each of the 15 die casters. The claimant wore them for only a few days, because he found that they misted up. He ceased to wear them, telling the superintendent of the foundry that they were useless. In 1970 molten metal was splashed into his eyes. The claimant’s action for damages included a claim that his employers had been negligent in that they had failed to instruct him to wear the goggles provided. The trial judge found that the defendant employers had been negligent, but reduced the claimant’s damages by 20% to take account of his contributory negligence. The defendants appealed, claiming that as they had fulfilled their statutory duty under the Non-Ferrous Metals (Melting and Founding) Regulations 1962 to provide suitable goggles they could not be found liable for negligence. The claimant’s case was that the employer owed him a common law duty that went beyond the statutory one. The following extracts are taken from the judgment of Edmund Davies LJ, beginning at p 26:

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It is noteworthy that the Court of Appeal’s exoneration of the occupier in General Cleaning Contractors Ltd v Christmas (1952) was not followed by the Court of Appeal in King v Smith and Another (1995). In this latter case, it was held that a window cleaner’s customer should be made responsible for ensuring that where his windows were capable of being cleaned from the inside, they were in proper working order to allow that to be done. Millett LJ remarking that, in the 40 years since Christmas was decided, it had become ‘well appreciated’ that cleaning windows from the outside sill could be a dangerous practice. Both the employer and the occupier of the premises were held liable for the cleaner’s injuries, resulting from a fall from a window ledge. However, the employer was held 70% to blame and the occupier had to bear only 30% of the responsibility. Similarly, in the following case, where the plaintiff had the status of employee rather than self-employed person the High Court so applied s2(5) as to find for the plaintiff. It held that a visiting worker, an employee of one other than the occupier, could not be said to have accepted a risk created by the occupier simply because he attempted to carry out the task his employer had set him. Thus, the visitor was enabled, as the employee had been since Smith v Baker & Sons (1891), to claim that there was an important difference between knowing of a risk and accepting it. BUNKER v CHARLES BRAND & SON LTD [1969] 2 QB 480 The plaintiff was sent by his employer (a contractor) to carry out modifications on a machine which was being used in the excavation of a tunnel (part of the Victoria Underground line). To get to the place where he had to work the plaintiff had to climb over the machine which was already sited in the tunnel. He slipped on rollers on the machine and injured his knee. The following extracts are from the judgment of O’Connor J in the High Court, beginning at p 486:

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LIABILITY FOR COMMON LAW NEGLIGENCE: DAMAGE

The claimant, having proved that the defendant owed a duty of care and that the defendant broke that duty, has to prove that the defendant is liable for the damage suffered. Assuming that the claimant can prove by medical evidence that he or she

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The problem of RSI in a keyboard operator has now been taken before the House of Lords in the following case. PICKFORD v IMPERIAL CHEMICAL INDUSTRIES PLC [1998] 1 WLR 1181 In this case also, the majority of their Lordships found against the appellant typist. In the view of Lord Hope, speaking for the majority of the House, the case turned on the evidence presented to the trial judge as to whether it was a foreseeable risk that a person spending most of her working day at a keyboard would contract a recognised illness. His Lordship opined, beginning at p 1196:

In order to succeed the claimant must establish that the injury suffered was the consequence of the defendant’s conduct. The claimant will not be compensated for damage that would have occurred even if the defendant’s conduct had been faultless. That is to say, it is not sufficient for the claimant to show that the defendant was negligent and the claimant has suffered damage.

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(c) Defendant must compensate for all personal injuries caused

If the claimant, due to some personal characteristic, suffers greater injury than other persons might have done, the defendant must, nevertheless, compensate for the actual damage which the claimant has suffered, always providing that the circumstances are such that any person in the claimant’s position would have suffered some injury. This is so, even though the actual injury was not

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(d)The chain of causation

The issue of causation has a number of guises, some of them very complex. Damage that is too remote a consequence of the defendant’s negligence is not recoverable. Damage will be too remote either because the chain of causation has been broken or because the chain has become too long to support a claim in respect of the final consequences of the defendant’s conduct. Whether

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CIVIL LIABILITY FOR BREACH OF STATUTORY DUTY

The matters that have to be considered in this chapter are:

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(b)Will the particular statute support a civil claim?

There are two classes of statute which might be used to found a civil action for damages for personal injury: liability to compensate victims;

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HEALTH AND SAFETY AT WORK ACT 1974

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Neither the Health and Safety and Work Act 1974 nor the Consumer Protection Act 1987 allow for civil actions based on the duties contained in the Act itself. Both create a presumption that Regulations made under the Act will support civil actions. (c) Liability under Regulations

Regulations made under the Health and Safety at Work Act 1974 have often replaced primary legislation whose provisions have been extensively relied on in civil litigation. Often these new Regulations have been introduced to implement EC Directives.

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The Health and Safety Commission had published a Discussion Document in 1994, entitled Rationalisation of Risk Assessment and other common provisions in health and safety legislation. The following extract is from this Discussion Document (DD 194 C350 7/94):

Now that Parliament has taken to stipulating expressly whether civil actions are available, judges appear to be reluctant to find, if the legislation is silent, that it was, nevertheless, Parliament’s intention to allow civil actions. The Court of Appeal had to consider this issue in the following case. [1995] 2 WLR 26

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which it turned has ceased to exist. It is therefore rather difficult to find cases which are still recognised as precedents. There have, in fact, been few cases reported for the past 20 or more years. There may be a number of reasons for this, including: litigation has already determined the meaning of the statutory wording; the decline of the heavy industries to which much of the legislation was applicable; and the common law of negligence has so developed that the statutory provisions are no longer relied on in civil courts. Several of the cases referred to in the previous chapter (for example, Bux v Slough Metals Ltd (1974)) included claims for breach of statutory duty as well as claims for negligence, but these cases have not been relied upon in what follows, in order to give a wider selection of cases. There are situations in which the ratio of the case may remain of importance after the statute in question has ceased to apply, because the case discusses principles which transcend the facts and the law before the court at the time the case was heard. This account, though citing old cases, seeks to pinpoint some of the issues which are likely still to be relevant to cases for breach of statutory duty. Therefore, the cases which follow may be classified as follows: (i) those illustrating general principles of statutory interpretation – for example, Carroll v Andrew Barclay & Sons Ltd (1948); (ii) those concerning criteria relevant to current legislation, though decided in relation to earlier legislation – for example, Edwards v National Coal Board (1949); (iii)interpretations of statutes that continue in force – for example, Knowles v Liverpool City Council (1993). (i) Cases illustrating general principles of statutory interpretation Was the defendant in breach of duty to the claimant? BOYLE v KODAK LTD [1969] 2 All ER 439 Lord Reid gave the following speech in the House of Lords, beginning at p 439:

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machinery was foreseeably dangerous: Hindle and Another, Appellants v Birtwistle, Respondent (1897). However, if the machinery were dangerous, it had to be fenced, even though it was not practicable to do so because fencing would render the machine (for example, a grindstone) unusable (John Summers & Sons Ltd v Frost (1955)). This rule did not apply when the general fencing requirement had been relaxed by special regulations in respect of the particular class of machine. The duty to fence transmission machinery was an absolute one. In Carroll v Andrew Barclay & Sons Ltd (1946) it was held that the duty was only to prevent workers getting access to the dangerous parts, not to prevent them being injured by broken parts flying out from the machinery. Similarly, the strict duty to fence dangerous parts of machinery other than transmission machinery did not extend to protecting the worker from injury by work pieces being thrown out by the machinery (Nicholls v F Austin (Leyton) Ltd (1946)). In arriving at their decision in Carroll, the House of Lords considered a number of other cases, including most of those mentioned in this and the preceding paragraph. The fencing provisions referred to in these cases were re-enacted in successive Factories Acts and were law for at least a century. They have ceased to apply since 1 January 1993 and it is very unlikely that there are still to be litigated cases concerning their applicability to accidents occurring before this date. It will be interesting to see whether any of these older cases will have any bearing on the interpretation of the new fencing provision in regulation 11 of the Provision and Use of Work Equipment Regulations 1998. Since the new provisions include requirements ‘to prevent access to any dangerous part of machinery’, it is arguable that the old authorities will remain of relevance. Interestingly, a successful claim has now been brought against an employer for breach of regulation 6(1) of the Provision and Use of Work Equipment Regulations 1992 (now regulation 5(1) of the Regulations as re-issued in 1998). This regulation stipulates that ‘every employer shall ensure that work equipment is maintained in an efficient state, in efficient working order and in good repair’. In Stark v The Post Office (2000) the claimant appealed against a decision of the High Court dismissing his claim for damages on the ground that the defendant employer was neither liable in negligence nor for breach of statutory duty. The claimant suffered serious personal injury when the front brake broke on the bicycle he was riding when delivering mail. The judge’s unchallenged finding of fact was that the cause of the brake failure was either

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set out below, beginning at p 118:

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employer being liable for causing psychiatric injury. YOUNG v CHARLES CHURCH (SOUTHERN) LTD AND ANOTHER (1997) THE TIMES, 1 MAY This interesting decision of the Court of Appeal is only to be found briefly reported in The Times. It was held that an employee who suffered psychiatric illness after seeing a workmate electrocuted close to him could recover damages for breach of statutory duty under regulation 44(2) of the Construction (General Provisions) Regulations 1961 (SI 1961/1580). The claimant’s workmate was killed when the equipment he was carrying touched an electrically charged overhead cable. This fatal accident was undoubtedly caused by the defendant employers’ breach of the regulation which provides: ‘Where any electrically charged overhead cable or apparatus is liable to be a source of danger to persons employed during the course of any operations or works to which these regulations apply ... all practicable precautions shall be taken to prevent such danger ...’ The view of the court appears to have been that the defendants were in breach of duty not only to the deceased but also to the claimant who like the deceased had been put at risk by their breach of duty. Thus their liability to him was not so much for the shock of seeing his workmate killed, but for the shock of realising that he rather than the deceased might have been the victim. The case is especially interesting because the trend of cases has been to deny redress to an employee who suffers psychiatric illness as a consequence of seeing his workmate killed.

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CIVIL LIABILITY: DEFENCES, QUANTUM AND EXTINCTION OF LIABILITY

I DEFENCES When a claimant has made out a case by establishing that the defendant owed a duty of care, that he has broken that duty and the breach has caused actionable damage, the defendant may raise a defence to reduce – or even

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environment, but the claimant might have been largely protected from it by using the protective equipment provided. In some situations, it may be difficult to determine whether there is any fault in the defendant: there may not be if the claimant is properly informed of the risk and free to protect himself from injury. This was the situation in Qualcast v Haynes (1959). In that case the claimant argued that there was some fault in the employer for failing to instruct him to use the protective equipment which was available for his use. The implication of the House of Lords’ decision that the employer owed no duty to instruct him, an experienced worker, to use the equipment meant that he was deemed to be the sole cause of his own injury: had the employer been under a duty to instruct him, and therefore negligent in failing to do so, the claimant’s damages might nevertheless have been substantially reduced to take account of his contributory negligence. A similar question as to whether the employee was the sole cause of his own fatal injury had to be considered by the House of Lords in Stapley v Gypsum Mines Ltd, cited below, p 194. In this latter case it will be seen that the employer was found to be in some degree responsible, possibly because of the relatively junior status of the accident victim and his fellow worker. In former times, when contributory negligence was a complete bar to recovery of any damages, the courts were often loath to find that the victim had been contributorily negligent. Thus, it was said:

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ADMINISTRATION OF JUSTICE ACT 1982

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make litigation worthwhile. By way of summary of this section of this book, a few brief comments on each of these points may be helpful. (a) Rules of law (b)Evidence

Since about 1970 (Home Office v Dorset Yacht Co Ltd), the claimant has a wide range of persons from whom to choose a defendant. It is unlikely that the courts would say that a person of the status of, for example, employer, occupier, manufacturer, worker, driver, to name but the more obvious, could not owe a duty to take reasonable care for the health and safety of the

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presenting the case. The victim will therefore have to consider carefully whether the final award will be sufficiently substantial to make the outlay worthwhile, and also whether if the award is substantial the other party will have the funds with which to honour it. For example there in no reason in law why individual workers should not be liable to compensate for injuries which they unlawfully cause to their colleagues; in practice such persons are not normally sued because it is unlikely that they will be able to meet any award of damages made against them. Exceptionally the wrongdoing worker may be covered by personal insurance, for example he may have been driving his own car at the time of an accident in which the claimant was injured, but even in these circumstances, suing the driver may not be the best way forward. The rules of vicarious liability normally ensure that the employer is the defendant in actions where the actual wrongdoer was an employee. The Employers’ Liability (Compulsory Insurance) Act 1969 and the Employer’s Liability (Defective Equipment) Act 1969 impose duties on the employer to carry insurance cover as specified in these Acts. For this reason alone the employer is likely to be the chosen defendant if the victim is an employee. Another reason why employees have, historically at least, tended to sue their employers, is that the employer has an onerous responsibility to provide employees with a safe system of work, including instruction and plant and equipment appropriate to the task. However, the employer may not, of course, be carrying the cover the law requires! In practice, substantial organisations are more attractive as defendants than small organisations, because they are likely to be sufficiently well managed to carry substantial insurance cover, and, if this is not so, they are nevertheless more likely than smaller organisations to have independent funds to meet their liabilities. Moreover it may be possible to bring evidence to show that a large organisation, especially if it is head contractor for the operation in which the victim was engaged, had an overriding obligation to provide a safe system of work, not dissimilar to that normally imposed upon the worker’s employer. Another factor which has to be considered is that the net sum which reaches the claimant may be relatively small, even where the injury has been a serious one. Now that the Law Reform (Contributory Negligence) Act 1945 enables courts to reduce awards to take account of the claimant’s contributory negligence, the victim will need to feel confident that there is no evidence available to the defendant to show that the claimant himself was, to some extent, at fault. Also, the defendant may make an offer of out of court settlement. If this occurs, then the claimant will need to consider carefully whether a successful hearing of his case would be likely to conclude with an award substantially higher than that being offered. If his advisers cannot feel confident of this, then he may face the delay and expense of litigation to no purpose, especially as the court becoming aware, as it will at the end of the case, that a reasonable

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THE FRAMEWORK FOR PREVENTION OF WORKPLACE INJURIES

Part I of this book was concerned with the use of the civil law to provide compensation to those who have suffered personal injury at the workplace. That part was named ‘Civil Liability’ and that title is not in dispute, because it

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In recent years there have been a number of well publicised catastrophes, such as the fire and explosion on the offshore installation, Piper Alpha, on 6 July 1988, causing 165 deaths; the capsizing of the car ferry, Herald of Free Enterprise, at Zeebrugge, causing 192 deaths; the sinking of the Marchioness pleasure boat on the Thames in 1989, killing 51 people; the rail collision at Clapham in 1987, causing 34 deaths; and the fire at King’s Cross Underground station in 1987, in which 31 people lost their lives. Most recently, in October 1999, there was another catastrophic rail crash, with a death toll of 30. This time, near to Paddington station at Ladbroke Grove. With the exception of Piper Alpha, all the above catastrophes involved transportation of members of the public. Possibly it is the fact that members of the general public have been killed that has caused a groundswell of public opinion that the law of homicide should be invoked against those who, while conducting their businesses for profit, operate in such a way as to lead to loss of life. In practice any criminal charge would have to be for manslaughter, because the alleged offenders would certainly lack the ‘malice aforethought’ which is a necessary ingredient of the offence of murder. Within the law of manslaughter, the offence would be of committing ‘involuntary manslaughter’, since the offenders would not have had the intention to bring about death. There are two reasons why manslaughter has not proved a useful tool to secure the sort of convictions for which there now appears to be a popular demand. The first is that the law of involuntary manslaughter is complex and far from clear; the second is that, when accidents have occurred as a result of a breakdown in the operation of a complex organisation it is usually unclear whether there is any one person to whom criminal responsibility can be attached. In the civil compensation law and under regulatory offences, liability is normally imposed upon the ‘employer’ but, in the general criminal law, there are difficulties in doing this because the employer is normally a corporate body, lacking a ‘mind’ capable of the ‘mens rea’ which the common law has always considered a necessary pre-requisite of criminal liability. These problems are so profound that the Law Commission, a body set up in the 1960s for the purpose of promoting the reform of the law, has noted:

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COMPLEXITY OF LAW OF MANSLAUGHTER

There are generally accepted to be two types of involuntary manslaughter: ‘unlawful act manslaughter’ and ‘gross negligence manslaughter’. Of unlawful act manslaughter, the Commission went on to say:

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instance; it is true that a conviction of manslaughter can result in a term of imprisonment, but this penalty could not have been imposed on a corporate employer. Gross negligence manslaughter? Where death has resulted from industrial activity, the charge has been of gross negligence manslaughter. The difficulty with this branch of the law, as unsuccessful prosecutions have demonstrated, is that, firstly it is not clear whether the accused conduct must be shown to have been ‘grossly negligent’ or ‘reckless’ and secondly, there is confusion as to what these expressions mean and how they should be established. So the problem is firstly of determining what conduct is wrongful and secondly of determining whether the accused did conduct himself in the proscribed manner. Judges have struggled to determine whether the criterion of liability should be negligence or recklessness. Whichever criterion of conduct is adopted, however, there is the additional problem of identifying whether the accused was guilty of that conduct. The difficulty is that negligence and recklessness are attitudes; in other words, they are states of mind. So gross negligence manslaughter is a mens rea offence, rather than an offence of strict liability. The question, therefore, is how is the jury to find out the state of mind of the wrongdoer at the time when he or she caused the death? One solution is to make an objective judgment: ask, ‘Does it look like reckless conduct to behave in that way?’ It might be argued that any observer would regard it as reckless to drive through a built up area at 60 miles per hour and this is strong evidence that the accused, having conducted himself in this way, was reckless. However, this has not been universally accepted as an appropriate approach. This difficulty of finding an appropriate test for identifying reckless behaviour was acutely felt in road traffic law, where the two principal offences were formerly causing death by reckless driving and driving dangerously. Significantly, the Road Traffic Act 1991 (set out below, p 238) amended ss 1 and 2 of the Road Traffic Act 1988, so that reckless driving is no longer a statutory offence. The ss 1 and 2 offences are now committed by driving dangerously and s 2A defines driving dangerously in objective terms. Thus, the two principal road traffic offences have become offences of strict liability. Obtaining a conviction for one of these offences does not depend on establishing what was going on in the mind of the accused; it depends on establishing that the accused driver’s conduct was not of the standard which a competent driver would have achieved. This amendment of the legislation may have clarified road traffic law and made it easier to achieve convictions for road traffic offences but, significantly, the maximum penalty under these

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The case of Mr Holt was different from the two cases just discussed in a number of respects. It aroused considerable interest amongst safety practitioners, but does not appear to have been reported, or even noted, except in the Health and Safety Information Bulletin. The facts were that Norman Holt, a director of a Lancashire firm, David Holt Plastics Ltd, was charged with manslaughter following the death of an employee at the company’s factory. The death occurred as a result of the employee coming into contact with the blade of an unguarded machine which was used for breaking up plastic. The case came before Preston Crown Court; the director pleaded guilty and was sentenced to 12 months’ imprisonment, suspended for two years. The case was unique for two reasons: firstly, it was the first time that a company director had been charged and convicted under the common law of manslaughter following the death of an employee; secondly, there had been a number of breaches of both the Factories Act 1961 and the Health and Safety at Work Act 1974, and proceedings were also brought in relation to these. Normally, the rule that inspectors appointed to enforce the Health and Safety at Work Act have the sole right to prosecute for offences committed under that Act prevents the prosecution of workplace offences through the Crown Prosecution Service and that, in turn, prevents consideration of whether it is appropriate to bring prosecutions within the broader spectrum of the general criminal law. For their part, health and safety inspectors are empowered only to prosecute for breaches of the duties imposed by the relevant legislation. In Mr Holt’s case, the prosecution followed the inquest into the employee’s death; the coroner referred the matter to the Crown Prosecution Service. The report suggests that the Director of Public Prosecutions then exercised the power given to him by s 38 of the Health and Safety at Work Act to permit the CPS to prosecute for the statutory offences as well as for manslaughter. The final case for consideration under this section is that of Mr Holloway, an electrician who caused the death of a householder; his case came before the Court of Appeal, together with several other cases (concerning medical malpractice) raising the same issue as to the legal basis of involuntary manslaughter by breach of duty. The case is usually referred to as R v Prentice. REGINA v HOLLOWAY [1993] 3 WLR 927 Before dealing with individual appeals, Lord Taylor of Gosforth remarked that all the cases were concerned with the true legal basis of involuntary manslaughter by breach of duty and proceeded to consider the precedents for guidance as to the ingredients of the offence. The extracts cited from his judgment begin at p 932:

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BOARDROOM GBH

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aspect of special regulatory codes and are dependant on the enforcement system in the particular code. LEGISLATION AGAINST CAUSING DANGER

The British response to the shortcomings of the common law has been legislation. However, there have been few instances in which Parliament has legislated in broad terms to punish behaviour which endangers life. A notable exception is s 2 of the Road Traffic Act 1988, which follows a long tradition of making it an offence to drive dangerously on a road. Section 2A of that Act, as

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offence under s 34 and appealed. On appeal it was held that proof of causation of danger was not needed for a conviction: the question was whether the facts proved could properly be described as endangering the safety of any person conveyed on the railway. The conviction was therefore upheld. Giving the judgment of the court, Widgery J said at p 622:

In relation to occupational health and safety, from the middle of the nineteenth century, regulatory legislation imposed duties on persons, most generally employers, requiring them to conduct their operations to the standards required by the legislation or incur criminal liability. The imposition of duties, enforced through the criminal law, on employers who were, and are,

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Their first criticism of the system then existing was that there was too much law! However, they also considered that the existing law was ‘intrinsically unsatisfactory’. They found that:

The Robens Report was published in 1972 and was followed a bare two years later by the Health and Safety at Work Act 1974. The 1974 Act is generally regarded as reflecting the Robens philosophy. It is a framework (or enabling) Act. It imposes broad general duties on persons at the workplace (ss 2–9) and provides for regulations to be made to make provision for more detailed

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(b)Licensing as a normal enforcement tool?

The Robens Committee, at p 87 of its Report, considered the use of licensing as a regulatory tool:

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(c) Licensing under the 1974 Act

Much of the legislation referred to in para 280 of the Robens Report has since been repealed or updated, but licensing remains a possible regulatory tool under the 1974 Act. Section 15 of the Act provides for a very wide power to make regulations under the Act and, in support of this, Schedule 3 sets out the purposes which may be the ‘Subject Matter of Health and Safety Regulations’.

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(e) Administrative control falling short of licensing

The Control of Industrial Major Accident Hazards Regulations 1984 introduced the concept of the ‘safety case’ into British safety legislation. These Regulations, which were, in part, a response to the EC ‘Seveso Directive’, applied where hazardous or ultra hazardous activities might present a danger to employees or the public.

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PART 5 PROVISION OF INFORMATION BY OPERATOR

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it is to be found in most of the regulations made since 1992 subsidiary to the Management of Health and Safety at Work Regulations first introduced in that year. (b)Responsibilities and involvement of workers

Historically, regulations for particular situations have imposed personal duties on employees. An example is the Quarries (Explosives) Regulations 1959, of which regulation 27(4) was under consideration in the compensation claim of Mr Shatwell in ICI v Shatwell (1965) which was considered in Part I of this book. This regulation stipulates that:

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Schedule to the Trade Union and Labour Relations (Consolidation) Act 1992 for the purpose of facilitating collective bargaining recognition. It is too early to say whether the complex arrangements set out in the Schedule will substantially increase collective representation in general or in safety matters in particular. The EU remains committed to worker participation and there is some justification for the assumption that the EU intends that such participation will normally be through trade unions. However, in the UK, the decline in trade unionism has resulted in many workplaces where the employer does not recognise a trade union as representing all or any of its workforce. This means that there are many more workers now than there were when Robens reported who have no trade union channel of communication with their employers on safety matters, though this is the situation that ‘New Labour’ took up government committed to changing. It might possibly be argued that, 20 or so years after the publication of the Robens Report, employees have a greater entitlement to information, but less power to bring about change, than that Committee envisaged; while through ‘empowerment’, as granted in legislation and operated in practice, they have greater responsibilities. SUMMARY

This chapter has indicated the background to the regulatory system operated under the Health and Safety at Work Act 1974, but touched on that system only to the extent necessary to illustrate techniques for encouraging the prevention of injury through work activities. It has focused primarily on the alternatives to the traditional system of enforcement by an inspectorate with

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THE REGULATORY SYSTEM IN GREAT BRITAIN

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Application of the Act Scope of the Act

Section 84 of the Act provides that it does not (subject to minor exceptions) apply to Northern Ireland; therefore it applies to Great Britain, that is to say England (including Wales) and Scotland. Separate provision has been made for similar rules to apply to Northern Ireland. Section 84(3) enables the Act to be extended, by Order in Council, outside of Great Britain. The most

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Relevant substantive law

The system of administration and enforcement under the 1974 Act applies to the ‘relevant statutory provisions’. Section 53, the interpretation section at the end of Part I of the Act, provides:

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The replacement of traditional standards by less prescriptive provisions has caused unease in some sectors of the workforce and has been challenged. In the following case one of the coal mining trade unions sought judicial review of the Secretary of State’s conduct in replacing certain regulations, alleging that the new regulations, which, in the view of the unions, were less rigorous than the ones they replaced, were ultra vires (that is, invalid) because they did not meet the standards required by s1(2). R v SECRETARY OF STATE FOR EMPLOYMENT EX P NATIONAL ASSOCIATION OF COLLIERY OVERMEN, DEPUTIES AND SHOT-FIRERS The HSC, acting in accordance with s1(2), intended to replace parts of the Mines and Quarries Act 1954 and various sets of regulations made under it which were prescriptive in nature. A formal consultation document including a draft of the regulations and code of practice was published in May 1989. There followed a series of meetings leading to revised proposals. A further consultation document was published in April 1990. Again, there were written observations followed by meetings followed by revisions of the proposals and then further meetings. A final revision of the proposals was circulated for comment in June 1992 and meetings were held in September 1992 with NACODS and other principal consultees. Except for NACODS and the National Union of Mineworkers, there was widespread general agreement with the proposals in their final form. The HSC believed that, in accordance with s1(2), the proposals would ‘maintain or improve’ standards of health and safety. The Management and Administration of Safety and Health at Mines Regulations 1993 (SI 1993/1897), which gave effect, without modification, to the HSC’s proposals, were laid before Parliament and an unsuccessful motion was put down in the Commons praying for their annulment. NACODS were not satisfied that the standards of health and safety set by the new regulations and accompanying Approved Code of Practice matched those of the measures replaced so they commenced judicial review proceedings, seeking to strike down all or part of the Regulations, contending that they were ultra vires the Secretary of State’s regulation making power under the 1974 Act. The leading judgment was given by Simon Brown LJ. He noted that the question was whether Parliament, on the proper construction of the 1974 Act, had entrusted to the Secretary of State’s judgment whether the new regulatory regime met the requirements of s1(2) or whether the courts had jurisdiction to

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carry out independent fact finding so that the Secretary of State’s judgment might be overruled and the regulations struck down as ultra vires. In his view, it was highly improbable that Parliament would have wished to leave to the courts the ultimate decision upon the respective merits of two different sets of regulations. He concluded that it was not for the court to overturn the outcome of what had been a lengthy and properly conducted consultation procedure. His Lordship also expressed the view that the phrase ‘designed to maintain or improve’ health and safety standards was expressing an objective or purpose rather than describing an ascertainable result. The final limb of s1(2) laid down a policy rather than a condition precedent. ‘Designed’ in that context looked to the future and embodied an expectation. It did not really matter whether, as NACODS contended, ‘designed’ meant ‘intended’ or ‘suited’. Even if the word ‘suited’ had been used it would ‘inevitably’ have been construed as ‘suited in the opinion of the regulation-maker’. The HSC’s Review of Health and Safety Regulation was placed, as it were, in the shadow of the above application for judicial review and it is not, therefore, surprising that the publication considered the role of s1(2) at some length. However, in the light of the Divisional Court’s ruling the HSC did not recommend any change to s1(2). The following is an extract from the Review at p 30:

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The burden of legislation

The debate in the 1990s about the desirability of removing longstanding regulatory provisions from the statute book through use of the powers given in the 1974 Act was undoubtedly fuelled by the then Government’s desire to deregulate, so as to relieve businesses of unnecessary regulatory burdens. Indeed, the HSC’s Review of Health and Safety Regulation was requested by the

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SENTENCING POLICY

There had been some concern that courts might not be imposing fines of sufficient severity for the magnitude of health and safety offences. The following case was, therefore, of considerable importance: [1999] 2 All ER 249 The case came to the Court of Appeal, Criminal Division, because the

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THE GENERAL DUTIES

This chapter will consider the general duties in ss 2–9 of the Health and Safety at Work Act 1974, the case law on these duties and other sections of the Act which impose liability on or restrict the liability of particular categories of person.

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Conduct his undertaking

In the next case, the Court of Appeal found that an employer could be conducting its undertaking even at times when its own employees were not at work. This case was cited by the House of Lords with approval in R v (1996), discussed below. [1987] IRLR 154

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Nelson), where the employer appeared faultless, while the employee was in breach of regulations imposing duties on him personally, the employer did escape liability. It may be that the argument made in these cases – that an employer should not be liable for the casual negligence of an employee where it is not reasonably practicable to prevent such lapses – will not be persuasive in the light of regulation 22 of the Management of Health and Safety at Work Regulations 1999 (see Chapter 12). R v BRITISH STEEL PLC [1995] IRLR 310 British Steel wanted to re-position part of a steel platform at one of its plants. The task was given to subcontractors on a labour-only basis and the work was to be supervised by British Steel’s own employee. The engineer told the subcontractor’s two men not to remove the supporting columns of the platform until the crane had taken its weight. In the event, the platform was cut free of nearly all its supports without being secured to the crane. The platform collapsed, fell onto and killed one of the visiting workmen. British Steel was charged and convicted in the Crown Court under s3(1). On appeal, British Steel reiterated the argument it had presented to the trial court, namely, that their engineer had carried out his supervisory duty properly. The accident had occurred because the two men had disobeyed instructions. It was further argued that, even if their employee were at fault, the company had, at the level of its ‘directing mind’, taken reasonable care to delegate supervision of the operation and, accordingly, the company was not responsible under s3(1) for their engineer’s actions. The judgment of the Court of Appeal was delivered by Steyn LJ. The following extracts begin at p 313:

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Duties of controllers of premises

Section 4 imposes duties on persons who are controllers of premises for the protection of those who are not their employees. This section (unlike premises and in rather convoluted language s 4(2) requires each controller to do what it is reasonable for someone in his position to do to ensure (so far as is

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cases are of special interest: one extended the duty to the lift of a block of flats; the other, a House of Lords’ decision, concerned the relationship between employer and subcontractor and is not easily reconciled with the cases which, on similar facts have, more recently, been heard on s 3. Non-domestic premises

In the following case the court had to decide whether ‘the common parts’, for example, the entrance hall, of a block of flats should be deemed ‘domestic premises’ and, therefore, beyond the jurisdiction of the 1974 Act. [1985] 1 ALL ER 897

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DUTIES OF OTHER PERSONS

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REGULATIONS RELEVANT TO OCCUPATIONAL HEALTH AND SAFETY

In this account so far, reference has been made, as appropriate, to certain regulations. In this chapter, it is only possible to treat in any detail the Control of Substances Hazardous to Health Regulations 1999 (COSHH) and the so

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THE MANAGEMENT OF HEALTH AND SAFETY AT WORK REGULATIONS

The Management of Health and Safety at Work Regulations 1992 (SI 1992/2051) were made under the 1974 Act as the principal vehicle for implementing the EC’s Framework Directive. These Regulations were subject to amendment on more than one occasion, in order to incorporate further EC

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Temporary Workers Directive 91/383/EEC. Regulations 17, 18 and 19 were introduced in order to implement provisions of the EC Directive on Pregnant Workers (92/85/EC); other parts of this latter Directive are covered in the Employment Rights Act 1996. Regulation 19 is in partial implementation of the Directive on the Protection of Young People at Work (94/33/EC). It has been suggested that, since the Regulations are made under and are, therefore, subordinate to the 1974 Act, they may fall short of compliance with the Directive. In particular, it has been suggested that the qualification of the general duties in the 1974 Act by ‘reasonable practicability’ ill matches the EC requirement for absolute safety. While risk assessment has to be carried out to ensure compliance with the general duties and other statutory duties, it is true that the duties in ss 2–9 of the 1974 Act, though described by judges as absolute duties, are, in most cases, qualified by the defence of reasonable practicability. However, the duty in regulation 3 to assess risks is an absolute one and so also are certain other of the duties in these Regulations, for example, that in regulation 19, relating to the protection of young persons. Significantly, the 1999 Regulations introduce regulation 19, providing that an employer may not plead the act or omission of either an employee or a competent person appointed under these Regulations by way of defence where he is charged with a breach of any of the relevant statutory provisions. The significance of this new regulation cannot be overstated. It would appear to mean that the debate, noted in the previous chapter, about whether an employer can escape criminal liability by pleading that it was not reasonably practicable to prevent the casual negligence of a properly trained and appointed employee, cannot be pursued in future. WORKPLACE (HEALTH, SAFETY AND WELFARE) REGULATIONS 1992 SI 1992/3004 Extracts from the Approved Code of Practice are printed in italics following the regulation to which the extract applies. The extracts given are only indicative of the nature of the Code; readers should not be confused into believing that the whole Code is produced here.

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THE ROLE OF THE WORKER

It was noted in Part I that English law has traditionally focused on the relationship between employers and their own employees and distinguished those from other categories of workers; that is workers who have the status of employee but work for another employer or those who are self-employed.

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Section 2(3) requires the employer to bring the organisation’s safety policy to the notice of all their employees. In the 1970s employers were urged to draw up their safety policies, and any revisions of them in consultation with their employees. In those days however the focus was on the statement of policy and the management organisation for achieving safety. Increasingly the emphasis has shifted to the safety arrangements which form part of the policy. In a sophisticated organisation nowadays individual employees will be informed, instructed, trained and supervised in the arrangements made further to the general policy statement for carrying out the particular roles they individually are expected to perform at the workplace. The employers’ arrangements may be governed by Regulations made under the Act; for example, the arrangements which have to be made for manual handling of loads are indicated by the Manual Handling Operations Regulations 1992 and guidance published with those Regulations. Interestingly, recent Regulations like the Six Pack, which require employers to have systems for dealing with assessment and response to risk do not expressly refer to s2(3) of the 1974 Act. (ii) Duty to consult Section 2(4) to (7) sets out a framework for the appointment of safety representatives and imposed on the employer a duty to consult with such appointees: HEALTH AND SAFETY AT WORK ETC ACT 1974

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Regulation 4A was inserted through the Management of Health and Safety at Work Regulations to give safety representatives the right to be consulted when safety related changes to working conditions are proposed. This addition was made to the Regulations to comply with EC law. The implementation of these Regulations gave to trade union appointed safety representatives much more status than had been officially accorded to shop stewards. In the late 1970s the TUC and individual unions were heavily engaged in training safety representatives and for a time it appeared that there was more expertise in the safety representatives than in first line management. The number of safety representatives at a workplace is for the trade union to decide: the employer’s only protection is to put an upper limit on the time and salary allowances available for safety representatives’ activities. Thus while appointed safety representatives are entitled to paid time off for training and performance of their duties the employer could indicate displeasure at the number of representatives appointed by giving very small allowances to individual representatives, or by making it difficult for them to attend training courses. The representative has legal protection against an unfair exercise of such power in that he/she can complain to an Employment Tribunal. This occurred in the following case: WHITE v PRESSED STEEL FISHER [1980] IRLR 176 The following extracts are taken from the judgment of Slynn J in the Employment Appeal Tribunal:

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WORKER INVOLVEMENT IN THE 1990 AND BEYOND

EC Directives on matters of employment tend to provide for worker involvement, through consultation or other means of participation. By the 1990s it had become apparent that the British 1970s system of giving rights to recognised trade unions did not meet the European criteria for worker involvement. Certainly the implementation, through the Employment

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Comment TERMS AND CONDITIONS OF EMPLOYMENT

While it can be seen that the 1996 Regulations follow broadly the same pattern as those of 1977 in detail the more recent Regulations are less sympathetic to the system of collective representation. Regulation 4 empowers the employer to consult with workers directly rather than through their representatives. The functions of the representatives under the 1996 Regulations are considerably In Part I of this book it was noted that in recent years there has been an increased awareness of health problems created by subjecting persons to stressful working conditions. The civil courts, in cases such as Walker v negligence for an employer to expose employees to conditions where they are

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The EC Directive on working time was adopted under Article 118A of the Treaty of Rome, relying on the qualified majority voting procedure available under that Article in spite of the opposition of the UK Government. The UK Government then unsuccessfully challenged the validity of the Directive, alleging that Article 118A was not an appropriate basis for it. The UK contention was that working hours are not a matter of health and safety. It was only after this challenge had proved unsuccessful (see UK v EU Council [1996] All ER (EC) 877) that the provisions of the Directive were brought into force in October 1998 although the final date set by the EC for implementing the Directive had been November 1996. It was speculated that any person who was deprived of the entitlements granted by the Directive, during the period between 1996 and 1998 when the UK was in default of its EC obligations, might claim compensation. In at least one reported case the Employment Appeal Tribunal appeared to have accepted this argument. In Gibson v East Riding of Yorkshire District Council (1999) The Times, 12 February a swimming instructor employed by a local authority successfully relied on the directive to obtain an entitlement to four weeks paid annual leave. The EAT found that the Directive had direct effect even though it had not been implemented. However the Court of Appeal subsequently held Article 7 was insufficiently precise to have direct effect against Yorkshire District Council. It is unlikely that a person employed in the private sector would have been able to claim compensation from the employer: however, such a person might possibly have relied on Francovich v Italian Republic (1992) and claimed damages from the UK government. The reluctance of the UK to implement the Directive was demonstrated by using the 1972, rather than the 1974 legislation, as a basis for the Regulations. Nevertheless the Health and Safety Executive is the principal enforcement agency, but some of the regulations are also linked to the Employment Rights Act 1996 to give workers rights to seek compensation in an employment tribunal. WORKING TIME REGULATIONS1998 SI 1998/1833 PART II RIGHTS AND OBLIGATIONS CONCERNING WORKING TIME

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Workers who have not received their proper entitlements under Regulations 10, 11, 12, or 13, may by virtue of Regulation 30 make a claim to an employment tribunal which can in appropriate cases award compensation. All the above extracts have been taken from Part II of the Regulations. Part III is entitled ‘Exceptions’. Regulation 18 lists a number of excluded sectors, including various categories of transport works and doctors in training. Regulation 20 provides that the majority of the regulations do not apply to those who have ‘unmeasured working time’. Significantly this regulation applies to ‘managing executives or other persons with autonomous decision-taking powers’. In addition to this Regulation 21 identifies ‘other special cases’ who are not subject to the full impact of the Regulations. This excepted list includes various categories of workers ‘Where the worker’s activities involve the need for continuity of service or production’, or ‘where there is a foreseeable surge of activity’. The activities in respect of which these exemptions may apply include those who work in communications (press, radio, television cinematographic production, postal and telecommunications services), those who work in public utilities (such as refuse collection) and agriculture. It may be doubted that these Regulations will make any real impact on the work culture of the UK. Individual workers may contract out of the 48 hour maximum working week, and employers may make this contracting out a term of the initial contract of employment. In other cases the work force may collectively agree that the 48 hour maximum will not apply to them. When this entitlement to ‘opt out’ of the Regulations is taken in conjunction with the exclusions and exemptions it appears that the Regulations have little force. It is especially significant that the professions will not be affected. Trainee doctors are expressly excluded and other professional people are likely to be exempted as being employed on contracts where their working time is unmeasured. This is ironical in that it is professional workers who appear to be most subject to stress at work at the present time. Use of employment tribunal in working time cases EMPLOYMENT RIGHTS ACT 1996

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(b)Constructive dismissal under s 95(1)(c)

[1976] IRLR 11 These extracts are from the report of a case brought before a Scottish Industrial Tribunal, in which it was held that the employee had been constructively dismissed by his employer although the employee wrote the final letter purporting to terminate the contract:

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Comment

The right to suspension with pay only applies to employees who are fit to work (s 64): those who are ill, including those who are ill as a result of exposure to one of the toxic substances covered by the Regulations listed in the Schedule to the Act, are entitled to claim sick pay as laid down in the Social Security and Housing Benefits Act 1982, as subsequently amended. This

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THE ROLE OF THE EUROPEAN UNION

In Part II of this book, considerable emphasis has been placed on the impact of the European Community upon the British regulatory system. This chapter traces the development of the authority which was vested in the European Economic Community, now known as the European Union, to direct the

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Directive’s legal basis in Article 118A as it did not accept that the working time regulations (primarily a maximum 48 hour average week) were justifiable on health and safety grounds. As an outcome of a meeting at Maastricht, a revised founding Treaty was signed on 7 February 1992. This, the Treaty of European Union, recorded the renewed commitment of the Member States to the Union, ‘resolved to mark a new stage in the process of European integration undertaken with the establishment of the European Communities ...’. But, at this stage, the UK did not commit itself to the Social Chapter (based on the 1989 Community Charter of the Fundamental Social Rights of Workers) agreed by the other Member States. Following the election of a new UK Government in 1997, the UK committed itself fully to the Social Chapter, which had been adopted by the other Members States at Maastricht. After a meeting held at Amsterdam in October 1997, a Consolidated Version of the Treaty Establishing the European Community was published. This Treaty to some extent amended, but largely reproduced, the substantive provisions of the Treaty of Rome as it had evolved since 1957. There is, however, considerable re-numbering of these Articles. The former Article 100A is now Article 95 and the former Article 118 is now Articles 137–40, representing the changes introduced by the Social Chapter adopted at Maastricht. The renumbering relates to the period after Maastricht rather than to the original Treaty of Rome. There is no longer an Article exclusively concerned with occupational health and safety. Thus, the transformation of Article 118A is sufficient to warrant both the old Article and the new ones being set out below. The former Article 118A was placed in the social policy area of the Treaty but directives founded on it could be adopted by a qualified majority vote. This procedure gives each Member State a number of votes according to its size in relation to the Community as a whole. Nevertheless, no single State, even a large one like the UK, has sufficient votes to prevent the adoption of a measure. This may have been one reason why Article 118A was heavily relied on during the period when the UK was not fully committed to the Community’s social policy. The Working Time Directive was one such directive. THE TREATY OF ROME

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LEGISLATIVE PROCEDURES

Article 100A (now Article 95) was intended to play an important role in harmonising throughout the EU product standards, including workplace equipment and personal protective equipment. On 7 May 1985, the European Commission adopted a resolution setting out a ‘New Approach to Technical Harmonisation and Standards’. Under this,

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representative from each Member State’s government: this will be the Prime Minister, or a Minister or government official, depending on the subject and level of meeting. Since the expansion of the EU in January 1995 qualified majority vote means that 62 of the available 87 votes must be in favour of the proposal. Member States have block votes according to their population size. The UK, France, Germany and Italy each have 10 votes. Thus, no one, not even the larger States, can alone prevent the adoption of a directive. The exact distribution of voting rights is subject to review with the development and expansion of the EU. It will be noted that, under the revised Treaty, improvement of health and safety is no longer given separate treatment. It is now one of five items covered by Article 137. However, directives to impose minimum standards may, as formerly, be adopted by qualified majority vote, that is, according to the procedures now set out in Article 251. This is in contrast with the matters itemised in Article 137.3 (including social security and social protection of workers) where the Council has to act unanimously for a directive to be adopted. Health and safety matters do not appear to be exempt from the new procedures which these Articles introduce for the involvement of management and labour in the formulation of directives (Article 138). Surprisingly, Article 139 apparently allows occupational health and safety standards to be determined through collective agreement at Community level. There appears to be no provision for governmental enforcement at Member State level for standards arrived at through the procedure set out in Article 139. Arguably, however, standards so arrived at could, in the UK, be enforced by reliance on the general duties in the 1974 Act. Procedure for adopting a directive under Article 251

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Example of a directive

Parts of the Framework Directive on Health and Safety were referred to in the previous chapter in relation to worker involvement: the whole of that directive is now set out to illustrate the form a directive takes. It will be noted that the language is not easily reconciled with the language normally used in UK legislation. In particular, the European practice of imposing broad general

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SECTION IV: MISCELLANEOUS PROVISIONS

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/1794) and ss 99–107 of the Employment Protection Act 1975 (subsequently ss 188–98 of the Trade Union and Labour Relations (Consolidation) Act 1992). State employees may seek to enforce EU law directly against their employers should the UK have failed to implement a directive; the courts have interpreted ‘State’ broadly to include the now privatised public utilities (see Foster v British Gas (1991) and Griffen and Others v South West Water Services Ltd (1995). However, the requirement of the directive must be very

Under the European Communities Act 1972, enacted by the UK Parliament at the time of the UK’s accession to the EC, provision is made for EU laws to be incorporated into UK law and for reference to be made from a UK court to the European Court of Justice in the event of it being necessary to clarify the meaning of EC legislation.

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Record of implementation Possible weaknesses Directives impose minimum standards

The Government has, in the main, been sympathetic to EC safety directives and has attempted to bring them into British law. The following comments can be made in respect of British occupational health and safety legislation:

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European laws invalidate earlier national laws Damages against the State

In R v Secretary of State ex p Factortame, the House of Lords referred to the European Court the question of whether or not Community law provides interim protection of rights under Community law in the event of the existence of inconsistent national legislation. The European Court held that Community law required a national court to set aside a rule of national law

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INDEX