Health and Safety Legal Update February 2016

2. Health and Safety legal updateHHSEG February 2016 John Mitchell Partner, Regulatory Risk & Compliance

3. Contents • Recent developments • In the pipeline • Sentencing cases • Criminal liability • Principles of damage • Duties owed to employees abroad • Workplace regs • PPE • Ice slipping cases • Occupiers liability

4. Recent developments • SARAH • New CDM Regulations • Self-employed exemption • Sentencing Council guidelines on health and safety offences

5. Sentencing Council guidelines • 9 step test: • Offence category • Starting point and fine range • Proportionality to means • Other factors • Statutory reductions • Discount for guilty pleas • Compensation and ancillary orders • Totality • Reasons

6. Sentencing Guidelines:Offence category • Culpability • Harm • Stage 1: • Seriousness of harm risked • Likelihood of harm • Statutory aggravating factors: • Exposure of number of people to the risk • Offence a significant cause of actual harm

7. Sentencing Guidelines:Starting point and category range • Determine the size of the undertaking by reference to turnover: • Large: > £50m • Medium: £10m - £50m • Small: £2m - £10m • Micro: < £2m

8. Sentencing Guidelines:In practice – case 1 • Large manufacturing business • Employee trapped hand in machine due to poor guarding • HSE said: • Medium culpability, Harm Cat. 3 (level B harm, medium likelihood) • Starting point £300k, range £130k - £750k • Defendant said: • Low culpability, Harm Cat. 4 (level B harm, low likelihood) • Starting point £10k, range £3k - £60k • Judge agreed with defendant, giving benefit of doubt • Fined £60k, at the top end as borderline

9. Sentencing Guidelines:In practice – case 2 • Small building business - Employee fell down a hole due to poor planning • HSE said: Medium culpability, Harm Cat. 2 (level A harm, medium likelihood) • Starting point £54k, range £25k - £230k • Defendant said: Low culpability, Harm Cat 3 (level A harm, low likelihood) • Starting point £3k, range £0.7k - £14k • Judge found: Medium culpability, Harm Cat 3 • Starting point £24k, range £12k - £100k • Fined £16k

10. Criminal liability for negligent designR (HSE -v- C-T Aviation Solutions Ltd • Defendant was a traffic management consultancy • It designed a system for vehicular approach to Luton Airport’s terminal building • A pedestrian crossing the access road at a designated crossing point was hit by a vehicle and died • The design was defective due to inadequate markings, barriers and sight lines • The defendant contended that being hit by a vehicle on a pedestrian crossing was “an ordinary incidence of life” October 2015

11. Principles of damageGreenway -v- Johnson Matthey • The claimant was a chemical process operator • He became sensitised to platinum salts • His employer removed him from working with platinum salts • The removal reduced his earning potential • He sued his employer for loss of earnings November 2014

12. Duties owed to employees abroadPalfrey -v- ARC Offshore Ltd • The claimant undertook two trips to West Africa in the course of his employment • He had no vaccination against malaria and was not advised by his employers to get one • On the first trip he bribed officials to give him a yellow fever vaccination certificate • Before the second trip he went to a clinic and was vaccinated against yellow fever • The clinic did not advise him about the risk from malaria • He contracted malaria and sued his employers February 2001

13. Duties owed to employees abroadDusek -v- Stormharbour Securities LLP • The employee needed to visit the site of a hydroelectric project in the Andes mountains • The trip was arranged by a Peruvian company involved in the project • The trip involved a helicopter flight • There were two alternative routes and the company chose the more dangerous route against advice • The helicopter crashed and all on board died • The employee’s dependents sued his employer January 2015

14. Duties owed to employees abroadCassley -v- GMP Securities Europe LLP • The employee needed to visit a mining site in the Congo on behalf of his employer, a finance house • The trip was arranged by the mining company • The trip involved a private charter flight • The mining company advised that the trip involved some risk and asked the employer to sign a waiver • The plane crashed and all on board died • The employee’s dependents sued his employer March 2015

15. Duties owed to employees off-dutyVaughan -v- MoD • The claimant was a marine • The marine was on an adventure training exercise • On the last morning of the trip the marines were told they were free to do what they wanted • The marine went to a beach, where he entered the sea, executed a shallow dive and hit his head on a rock • He suffered serious injury • He claimed from the MoD, alleging that he was on duty at the time of the accident March 2015

16. Workplace regs – traffic routesWilkinson -v- Hjatland Housing Asociation • Claimant was a social care worker for a local authority • She was visiting sheltered accommodation units • The units were let by the defendant housing association but support was provided by the local authority • The units were clustered around a courtyard • In the courtyard, hidden under the snow, was a hole left by a fountain that had been removed by the defendant • The claimant fell into the hole and was injured • Main issue: did the housing association owe a duty to the claimant under the Workplace regs? March 2015

17. PPE – iceParr -v- Wirral University Hospital Trust • The claimant was a community midwife • The Trust policy on footwear was that employees should wear sensible footwear in icy conditions • She slipped and fell on an icy pavement after making a home visit • She claimed damages on the grounds that the Trust was in breach of the PPE regs • She maintained that the Trust should have provided her with a winter grip device November 2014

18. General duties – “ordinary” risksKennedy -v- Cordia (Services) LLP • The claimant was a home carer • In severe winter weather she went to visit a dying person at home • The path was frozen and covered in snow • She slipped and injured herself • Her footwear was inadequate • Her employer’s risk assessment resulted in training to new carers that they should wear “suitable footwear” September 2014

19. Occupiers’ liability - iceWilson -v- Bourne Leisure Ltd • The claimant was a visitor to a holiday camp • He slipped on an icy path as he was returning to his accommodation from an event at a venue • There had been a sudden change in the weather • The camp’s workmen were gritting the paths • They offered to grit his path if he could wait for a few minutes to finish the path they were doing • He chose to walk on and slipped June 2015

20. Occupiers’ liabilityF -v- Sandwell MBC • The claimant was a pupil at a primary school • He pushed his arm down behind a hot radiator in a school hall and it became trapped • His arm was burned and permanently scarred • The school had satisfactory systems to keep children away from radiators • More than 600,000 children had used the hall without incident since the radiator had been installed June 2015

21. Occupiers’ liabilityBuckett -v- Staffordshire County Council • The claimant was a teenage trespasser on school premises • He accessed the lower roofs • From there he climbed on to the upper roofs and to a transverse flat roof between two pitched roofs • The flat roof contained a number of skylights • He perched on a diagonal brace and then jumped on to a skylight • The skylight disintegrated and he fell through April 2015

22. Health and Safety legal updateHHSEG February 2016 John Mitchell Partner, Regulatory Risk & Compliance