a1 principles of health and safety management

8/9/2019 A1 Principles of Health and Safety Management

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Principles of health and safety

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Principles of health and safety management

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Table Of Contents............................................................................................................................................... 4


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Element A1 : Principles of health and safety management

Learning outcomes

On completion of this element, candidates should be able to:

• Explain the moral, legal and economic reasons for a health and safety

management system

• Discuss the principles of an effective health and safety management system with

reference to appropriate examples

• Outline the requirements, role, structure (implementation and monitoring) of an

effective health and safety policy

• Outline the role of health and safety specialists

Relevant Standards

• International Labour Standards, Occupational Safety and Health Convention,

C155, International Labour Organisation, Geneva, 1981

• International Labour Standards, Occupational Safety and Health

Recommendation R164, International Labour Organisation, Geneva, 1981

Minimum hours of tuition 15 hours.

1.0 Introduction

An Introduction to Management Theories

In order to understand the concept of managing the health and safety function of an

organisation, you must first have an appreciation of the different styles and theories of

management that have been presented to the world at large of a considerable period of

time. There are many management gurus and many management theories out there

and it would be encouraged should you wish to further your own studies by

undertaking your own research.

That said, however, let us introduce some of the more known and less obscure theories

that have become established in Management:

We will briefly look at five management gurus and their theories:

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1. Maslow

2. Fayol

3. McGregor

4. McClelland

5. Taylor

1.1 Maslow's Hierarchy of Needs

Abraham Maslow developed the Hierarchy of Needs model in 1940-50's USA, and the

Hierarchy of Needs theory remains valid today for understanding human motivation,management training, and personal development.

Indeed, Maslow's ideas surrounding the Hierarchy of Needs concerning the

responsibility of employers to provide a workplace environment that encourages and

enables employees to fulfil their own unique potential (self-actualisation) are today

more relevant than ever.

Abraham Maslow was born in New York in 1908 and died in 1970, although various

publications appear in Maslow's name in later years. Maslow's PhD in psychology in

1934 at the University of Wisconsin formed the basis of his motivational research,

initially studying rhesus monkeys. Maslow later moved to New York's Brooklyn College.

Maslow's original five-stage Hierarchy of Needs model is clearly and directly

attributable to Maslow; later versions with added motivational stages are not so clearly

attributable.

Each of us is motivated by needs. Our most basic needs are inborn, having evolved

over tens of thousands of years. Abraham Maslow's Hierarchy of Needs helps to explain

how these needs motivate us all. Maslow's Hierarchy of Needs states that we must

satisfy each need in turn, starting with the first, which deals with the most obvious

needs for survival itself:

Physiological the basic requirements of life

Safety and security the need for job security

Belongingness the need to be part of the team, to be accepted

Esteem the need for recognition and respect

Self-actualisation to reach the personal goal

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1.2 Henry Fayol

Henry Fayol's background was in mining. His book Administration Industrielle et Generale was first

published in 1916 when he was 75. It was translated into English in 1949. He is famous for three

things.

1. The six functional groups.

Fayol suggested that all activities could fit into six functions:

1 Technical - (production, manufacture, adaptation);

2 Commercial - (buying, selling, exchange);

3 Financial - (search for and optimum use of capital);

4 Security - (protection of property and personnel);

5 Accounting - (stocktaking, balance sheets, costs, statistics - bean

counting!);

6 Managerial activities - (planning, (prevoyance) organisation,

command, co-ordination and control).

Perhaps the one thing that may have changed since Fayol's day was the rigid notion of functionsand functional boundaries. While the basis remains, the strict divisions do not.


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2. The managerial elements

This was a response to the question, 'What is management?' The five elements were defined as:

1 Prevoyance - examining the future and drawing up a plan of action -

the elements of strategy

2 To organise - build up the structure, both material and human, of the

undertaking

3 To command - maintaining activity among the personnel

4 To co-ordinate - binding together, unifying and harmonising all activity and

effort

5 To control - seeing that everything occurs in conformity with established

rule and expressed command

Again, this forms a basis that is still relevant, although the emphasis may have changed.

3. Fourteen Principles

From this came Fayol's third contribution, his 14 principles. He did, however, freely admit that they

were his rules, developed out of his own experience and did not necessarily have universal

application or even great permanence.

1.3 Douglas McGregor's XY Theory

Douglas McGregor, an American social psychologist, proposed his famous X-Y theory in his 1960

book 'The Human Side of Enterprise'. Theory x and theory y are still referred to commonly in the


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field of management and motivation, and whilst more recent studies have questioned the rigidity of

the model, McGregor's X-Y Theory remains a valid basic principle from which to develop positive

management style and techniques. McGregor's XY Theory remains central to organisational

development, and to improving organisational culture.

McGregor's X-Y theory is a salutary and simple reminder of the natural rules for managing people,

which under the pressure of day-to-day business are all too easily forgotten.

McGregor maintained that there are two fundamental approaches to managing people. Many

managers tend towards theory x, and generally get poor results. Enlightened managers use theory

y, which produces better performance and results, and allows people to grow and develop.

Theory 'X' Authoritarian Management Style

The average person dislikes work and will avoid it if he/she can

Therefore most people must be forced with the threat of

punishment to work towards organisational objectives

The average person prefers to be directed; to avoid responsibility; is

relatively unambitious, and wants security above all else

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Theory 'Y' Participative Management Style

Effort in work is as natural as work and play

People will apply self-control and self-direction in the pursuit of

organisational objectives, without external control or the threat of

punishment

Commitment to objectives is a function of rewards associated with

their achievement.

People usually accept and often seek responsibility

The capacity to use a high degree of imagination, ingenuity and

creativity in solving organisational problems is widely, not narrowly,distributed in the population


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In industry the intellectual potential of the average person is only

partly utilised

Characteristics of the x theory manager

What are the characteristics of a Theory X manager?

Typically some, most or all of these:

•results-driven and deadline-driven, to the exclusion of everything else

•intolerant

•issues deadlines and ultimatums

•

distant and detached•aloof and arrogant

•elitist

•short temper

•shouts

•issues instructions, directions, edicts

•issues threats to make people follow instructions

•demands, never asks

•does not participate

•does not team-build

•unconcerned about staff welfare, or morale

•proud, sometimes to the point of self-destruction

1.4 David McClelland's motivational needs theory

American David Clarence McClelland (1917-98) achieved his doctorate in psychology at

Yale in 1941 and became professor at Wesleyan University He then taught and

lectured, including a spell at Harvard from 1956, where with colleagues for twentyyears he studied particularly motivation and the achievement need.

He began his consultancy in 1963, helping industry assess and train staff, and later

taught at Boston University, from 1987 until his death. McClelland is chiefly known for

his work on achievement motivation, but his research interests extended to personality

and consciousness. David McClelland pioneered workplace motivational thinking,

developing achievement-based motivational theory and models, and promoted

improvements in employee assessment methods, advocating competency-based

assessments and tests, arguing them to be better than traditional IQ and personality-


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based tests. His ideas have since been widely adopted in many organisations, and

relate closely to the theory of Frederick Herzberg.

David McClelland is most noted for describing three types of motivational need, which

he identified in his 1988 book, Human Motivation:

• achievement motivation (n-ach)

• authority/power motivation (n-pow)

• affiliation motivation (n-affil)

David McClelland's needs-based motivational model

These needs are found to varying degrees in all workers and managers, and this mix of motivational

needs characterises a person's or manager's style and behaviour, both in terms of being motivated,

and in the management and motivation others.

The need for achievement (n-ach)

The n-ach person is 'achievement motivated' and therefore seeks achievement, attainment of

realistic but challenging goals, and advancement in the job. There is a strong need for feedback as

to achievement and progress, and a need for a sense of accomplishment.

The need for authority and power (n-pow)

The n-pow person is 'authority motivated'. This driver produces a need to be influential, effective

and to make an impact. There is a strong need to lead and for their ideas to prevail. There is also

motivation and need towards increasing personal status and prestige.

The need for affiliation (n-affil)

The n-affil person is 'affiliation motivated', and has a need for friendly relationships and is motivated

towards interaction with other people. The affiliation driver produces motivation and need to be liked

and held in popular regard. These people are team players.

McClelland said that most people possess and exhibit a combination of these characteristics. Some

people exhibit a strong bias to a particular motivational need, and this motivational or needs 'mix'

consequently affects their behaviour and working/managing style.

McClelland suggested that a strong n-affil 'affiliation-motivation' undermines a manager's objectivity,

because of their need to be liked, and that this affects a manager's decision-making capability. Astrong n-pow 'authority-motivation' will produce a determined work ethic and commitment to the

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organisation, and while n-pow people are attracted to the leadership role, they may not possess the

required flexibility and people-centred skills. McClelland argues that n-ach people with strong

'achievement motivation' make the best leaders, although there can be a tendency to demand too

much of their staff in the belief that they are all similarly and highly achievement-focused and results

driven, which of course most people are not.

McClelland's particular fascination was for achievement motivation, and this laboratory experiment

illustrates one aspect of his theory about the affect of achievement on people's motivation.

McClelland asserted via this experiment that while most people do not possess a strong

achievement-based motivation, those who do, display a consistent behaviour in setting goals:

Volunteers were asked to throw rings over pegs rather like the fairground game; no distance was

stipulated, and most people seemed to throw from arbitrary, random distances, sometimes close,sometimes farther away.

However a small group of volunteers, whom McClelland suggested were strongly achievement-

motivated, took some care to measure and test distances to produce an ideal challenge - not too

easy, and not impossible. Interestingly a parallel exists in biology, known as the 'overload principle',

which is commonly applied to fitness and exercising, i.e., in order to develop fitness and/or strength

the exercise must be sufficiently demanding to increase existing levels, but not so demanding as to

cause damage or strain. McClelland identified the same need for a 'balanced challenge' in the

approach of achievement-motivated people.

McClelland contrasted achievement-motivated people with gamblers, and dispelled a common pre-

conception that n-ach 'achievement-motivated' people are big risk takers. On the contrary - typically,

achievement-motivated individuals set goals which they can influence with their effort and ability,

and as such the goal is considered to be achievable. This determined results-driven approach is

almost invariably present in the character make-up of all successful business people and

entrepreneurs.

McClelland suggested other characteristics and attitudes of achievement-motivated people:

Achievement is more important than material or financial reward.

Achieving the aim or task gives greater personal satisfaction than

receiving praise or recognition.

Financial reward is regarded as a measurement of success, not an

end in itself.

Security is not prime motivator, nor is status.

Feedback is essential, because it enables measurement of success,


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not for reasons of praise or recognition (the implication here is that

feedback must be reliable, quantifiable and factual).

Achievement-motivated people constantly seek improvements and

ways of doing things better

Achievement-motivated people will logically favour jobs and

responsibilities that naturally satisfy their needs, i.e. offer flexibility

and opportunity to set and achieve goals, e.g., sales and business

management, and entrepreneurial roles.

McClelland firmly believed that achievement-motivated people are generally the ones who make

things happen and get results, and that this extends to getting results through the organisation of

other people and resources, although as stated earlier, they often demand too much of their staff

because they prioritise achieving the goal above the many varied interests and needs of their

people.

1.5 Frank W Taylor

F W Taylor's name is synonymous with the term 'scientific management'. He is

considered the pioneer of work study and industrial engineering. He published his first

work in 1895, when he was 39. Much of his work was published under the heading

Scientific Management in 1949. His name appears in management texts that date from

the 1950s and 1960s and still survives in the traditional texts today.

Taylor had four basic principles of management:

(i) The development of a true science of work.

Taylor's main contention was that the worker did not really know what was expected of

him. There was no basic measure as to what consisted of a fair day's work. What

Taylor tried to develop was a measure or standard of the amount of work that a

suitable worker could achieve in a normal day under optimum conditions. For this,

Taylor was prepared to pay higher than average wages. Taylor's classic example was a

man shovelling coal or iron ore at the Bethlehem steel works. This was a repetitive job

which has now been mechanised for the most part. Taylor also believed in single skills,

largely irrelevant in much of today's multi-skilled environment. Yet, there are still

businesses that do not know if they are getting value out of the few operatives that

remain on the shop floor. Shop floor labour may only be 12% of total turnover

compared with materials 56%, but if the net margin is only 5%, there is little room for

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error or complacency. Direct labour may not just be on the shop floor. A product may

need installation engineers, and management still needs to know if they are working

efficiently and what is an efficient rate of working.

(ii) The scientific selection and progressive development of the worker

Taylor believed that the best man for the job should be selected. He should possess the

physical and intellectual qualities to achieve the required output. However, it was up to

management to ensure that the right people were selected and trained. Such is the

basis of quality circles. Operatives meet to discuss work-related problems, investigate

the causes and solutions and take appropriate action. However, for this to work

successfully, the participating operatives must be trained.

(iii) The bringing together of the science of work and scientifically selected and trained

men.

Students might see an anticipation of McGregor here. What Taylor was really anxious

to eliminate was the managerial mental block. Management, he found, resisted his

ideas because they saw higher hourly rates of pay. What they did not see was the

potential for much higher productivity.

(iv) The constant and intimate co-operation of management and men.

Under this heading, R C Townsend always quotes the battle of Dienbienphu. The

French were defeated by an army where the colonels marched with their men and lived

with their men under the same conditions. In this, Taylor may have anticipated Henri

Fayol.

Taylor probably survives because:

• We still need to know what is a reasonable day's work;

• What is required for that work to be achieved;

• The nature of many jobs may have changed, but the rules still apply. It can be

argued that there is little difference between the Bethlehem shoveller of the

1890s, and the tele-sales person or the call centre receptionist of the first

decade of the 21st century.

As you can see there are many theories and management specialist 'thinkers' out

there. This section of the course is to serve as an introduction to the ideas that are

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available when involved in managing. It is designed to give you an insight into how

motivation and management are closely linked and how you must consider the theories

in order to manage health and safety effectively and efficiently.

2.0 Common H&S Definitions

Definitions of 'hazard', 'risk', 'danger', 'suitable and sufficient'.

In all aspects of health and safety and its management there are certain words and

phrases which will all ways be used and referred to. These words and phrases are

plentiful and as this course progresses you will learn their meaning and importance in

the world of successful health and safety management. In this section four key words

and phrases will be introduced along with several descriptions. These are -

• Hazard

• Risk

• Danger

• 'Suitable and Sufficient'

2.1 Definitions of Hazard:

In health and safety management there is no one universal definition of what

constitutes a hazard. The definition you use is a personal choice as to what you feel

comfortable using (and understanding). Another factor that will help you to understand

what constitutes as a hazard will be the Safety Management System you work to or

intend to adopt in your organisation. Several management systems are out there (BS

8800, OHSAS 18001, HSG65) and each have there own advantages and

disadvantages, but this will be discussed later. However, for the moment let us

introduce the different definitions that are used and the sources they come from:

BS8800

BS8800 defines a hazard as - “A source or a situation with a potential for harm in

terms of human injury or ill health, damage to property, damage to the environment,

or a combination of these.”

OHSAS 18001

OHSAS 18001 defines a hazard as a - “Source or situation with a potential for harm in

terms of injury or ill health, damage to the workplace, damage to the workplace

environment, or a combination of these.”

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Five Steps To Risk Assessment

The Health and Safety Executive in their guidance to risk assessment leaflet define a

hazard as - “ ‘Hazard’ means anything that can cause harm (e.g. chemicals, electricity,

working from ladders, etc).”

HSG65

The Health and Safety Executive’ s HSG65 management standard ‘Successful Health

and Safety Management’ defines a hazard as - “the potential to cause harm including ill

health and injury, damage to property, plant, products or the environment; production

losses or increased liabilities.”

The Management of Health and Safety at Work Regulations 1999

In Regulation 3 of the Management of Health and Safety at Work Regulations 1999, a

hazard is defined as - “Something with the potential to cause harm (this can include

substances or machines, methods of work and other aspects of work organisation).”

So, as you can see there are plenty of definitions to choose from, although, if you read

them closely they all use one key word - “Harm” - within their text. This word is

therefore key to what is defined as a hazard and how you use hazard in the right

context. Harm can have two meanings which are both important in the world of health

and safety management:

• physical or other injury or damage (such as ill health or damage to machinery):

• to hurt someone or damage something:

As you can see both these above phrases are not desired when it comes to managing

health and safety!

2.2 Definitions of Risk:

Let's now move on to defining what constitutes as a risk. Again using the same sources

of information as used to define hazard (above), the following can be produced:

BS8800

BS8800 defines a risk as - “The combination of the likelihood and consequences of a

specified hazardous event occurring.”

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OHSAS 18001

OHSAS 18001 defines a risk as a - “Combination of the likelihood and consequence(s)

of a specified hazardous event occurring.”

Five Steps To Risk Assessment

The Health and Safety Executive in their guidance to risk assessment leaflet define a

risk as - “The chance, high or low, that somebody will be harmed by the hazard.”

HSG65

The Health and Safety Executive’ s HSG65 management standard ‘Successful Health

and Safety Management’ defines a risk as - “Risk means the likelihood that a specified

undesired event will occur due to the realisation of a hazard by, or during, work

activities, or by the products and services created by work activities.”

The Management of Health and Safety at Work Regulations 1999

In Regulation 3 of the Management of Health and Safety at Work Regulations 1999, a

risk is defined as - is the likelihood of potential harm from that hazard being realised.

The extent of the risk will depend on:

• the likelihood of that harm occurring;

• the potential severity of that harm, i.e. of any resultant injury or adverse health

effect; and

• the population which might be affected by the hazard, i.e. the number of people

who might be exposed.”

So, by using the Management of Health and Safety at Work Regulations 1999’s

definition there are three things to take into account when defining risk.

The table below is an example of using the definitions outlined above to show how a

window cleaner using a ladder would define hazard and risk:

Hazard The ladders

Risk(s) • The window cleaner could fall from the ladder

• The window cleaner could drop equipment from the ladder

onto machinery or equipment below

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• The window cleaner could drop equipment from the ladder

onto persons below

• The ladder could fall onto persons below

• The ladder could fall onto machinery or equipment below.

For each of the outlined risks there will be different influences on what affects the

likelihood and severity of the risks. For example, the number of people working near to

the window cleaner, are there any pieces of machinery or equipment in close

proximity, is the ladder secured to prevent it from moving and becoming unbalanced

etc. These and other factors must be taken into account.

2.3 Definitions of Danger:

‘Danger’ is defined in the dictionary as follows:

1. Authority; jurisdiction; control

2. Power to harm; subjection or liability to penalty

3. Exposure to injury, loss, pain, or other evil; peril; risk; insecurity.

4. Difficulty; sparingness

5. Coyness; disdainful behaviour

If we further break down the underlined definition we can see that by saying ‘exposure’

we are implying a proximity to the hazard or risk.

2.4 Definition of Suitable and Sufficient

Suitable and Sufficient is a heavily used phrase in health and safety managementwhich gets its roots from the Management of Health and Safety at Work Regulations

1999 (previously 1992). It is introduced in Regulation 3 - Risk Assessment, and the

Approved Code of Practice is by far the most reliable to use when searching for and

trying to understand its meaning. Therefore the following text is taken directly from

Regulation 3, and the guidance notes which accompany it.

Regulation 3: Risk Assessment

(1) Every employer shall make a suitable and sufficient assessment of -

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(a) the risks to the health and safety of his employees to which they are exposed

whilst they are at work; and

(b) the risks to the health and safety of persons not in his employment arising out of or

in connection with the conduct of him in his undertaking, for the purpose of identifying

the measures he needs to take to comply with the requirements and prohibitions

imposed upon him by or under the relevant statutory provisions and by Part II of the

Fire Precautions (Workplace) Regulations 1997.

(2) Every self-employed person shall make a suitable and sufficient assessment of -

(a) the risks to his own health and safety to which he is exposed whilst he is at work;

and

(b) the risks to the health and safety of persons not in his employment arising out of or

in connection with the conduct of his undertaking, for the purpose of identifying the

measures he needs to take to comply with the requirements and prohibitions imposed

upon him by or under the relevant statutory provisions.

(3) Any assessment such as is referred to in paragraph (1) or (2) shall be reviewed by

the employer or self employed person who made it if -

(a) there is reason to suspect that it is no longer valid; or

(b) there has been a significant change in the matters to which it relates; and where as

a result of any such review changes to an assessment are required, the employer or

self employed person concerned shall make them.

(4) An employer shall not employ a young person unless he has, in relation to risks to

the health and safety of young persons, made or reviewed an assessment in

accordance with paragraphs (1) and (5).

(5) In making or reviewing the assessment, an employer who employs or is to employ

a young person shall take particular account of -

(a) the inexperience, lack of awareness of risks and immaturity of young persons;

(b) the fitting-out and layout of the workplace and the workstation;

(c) the nature, degree and duration of exposure to physical, biological and chemicalagents;

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(d) the form, range and use of work equipment and the way in which it is handled;

(e) the organisation of processes and activities;

(f) the extent of the health and safety training provided or to be provided to youngpersons;

(g) risks from agents, processes and work listed in the Annex to Council Directive

94/33/EC on the protection of young people at work;

(6) Where the employer employs five or more employees, he shall record -

(a) the significant findings of the assessment; and

(b) any group of his employees identified as being especially at risk

Approved Code Of Practice Guidance:

General Principles and Purpose of Risk Assessment

This regulation requires all employers and self employed people to assess the risks to

workers and any others who may be affected by their work or business. This will

enable them to identify the measures they need to take to comply with health andsafety law. All employers should carry out a systematic general examination of the

effect of their undertaking, their work activities and the condition of the premises.

Those who employ five or more employees should record the significant findings of that

risk assessment.

A risk assessment is carried out to identify the risks to health and safety to any person

arising out of, or in connection with, work or the conduct of their undertaking. It should

identify how the risks arise and how they impact on those affected. This information is

needed to make decisions on how to manage those risks so that the decisions are

made in an informed, rational, structured manner and the action taken is

proportionate.

A risk assessment should usually involve identifying the hazards present in any working

environment or arising out of commercial activities and work activities, and evaluating

the extent of the risks involved, taking into account existing precautions and their

effectiveness:

Suitable and Sufficient

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A suitable and sufficient risk assessment should be made. ‘Suitable and sufficient’ is

not defined in the Regulations. In practice the risk assessment should do the following:

(a) The risk assessment should identify the risks arising from or in connection with

work. The level of detail in a risk assessment should be proportionate to the risk. Once

the risks are assessed and taken into account, insignificant risks can usually be

ignored, as can risks arising from activities associated with life in general, unless the

work activity compounds or significantly alters those risks. The level of risk arising

from the work activity should determine the degree of sophistication of the risk

assessment.

For small businesses presenting few or simple hazards a suitable and sufficient risk

assessment can be a very straightforward process based on informed judgement andreference to appropriate guidance. Where the hazards and risks are obvious, they can

be addressed directly. No complicated processes or skills are required.

In many intermediate cases the risk assessment will need to be more sophisticated.

There may be some areas of the assessment for which specialist advice is required; for

example risks which require specialist knowledge such as a particularly complex

process or technique such as being able to measure air quality and to assess its

impact.

The risk assessment should be appropriate to the nature of the work and should

identify the period of time for which it is likely to remain valid. This will enable

management to recognise when short term control measures need to be reviewed and

modified, and to put in place medium and long term controls where these are

necessary.

As you can see the Regulations and guidance are themselves complex but necessary

when it comes to managing health and safety and the risk assessment process.

Suitable and sufficient no real definition only what is available in the actual regulations

themselves as guidance.

3.0 Reasons for managing health and safety

There are three reasons that are given for managing health and safety within an

organisation. These are in no particular order but equal attention should be given to all

three:

1. Ethical and Moral reasons

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2. Legal reasons

3. Financial reasons

3.1. Moral Reasons:

It is fair to say that when people go to work they do not expect to be injured or worse

- killed. Every employee expects that in return for the duties they perform they can

expect to work in a safe environment and return to their families and friends at the end

of their shift. It is also fair to say that whether or not you are a risk taker in life you

should not be taking risks at work that not only jeopardises your own safety and health

but also that of your colleagues and co-workers.

It is for these reasons that management have a Moral duty to their workforce and that

of others who may use their premises or services (i.e. contractors, visitors, customers

etc.) A Duty of Care exists between employer and employee (and those others affected

by their actions).

What is Duty of Care?

Duty of care is the obligation to exercise a level of care towards an individual, as is

reasonable in all the circumstances, to avoid injury to that individual or his property.

Duty of care is therefore based upon the relationship of the parties, the negligent act

or omission and the reasonable foreseeability of loss to that individual.

A negligent act is an unintentional but careless act which results in loss. Only a

negligent act will be regarded as having breached a duty of care. Liability for breach of

a duty of care very much depends on the public policy at the time the case is heard.

Differences in the UK Jurisdictions

In Scotland this area of the law is called Delict while in England, Wales and Northern

Ireland it is called the law of Tort. Delict and tort differ from the law of contract.

Contracts generally specify the duties on each of the parties and the remedy if these

duties are breached. Upon entering into a contract, the parties obtain specific rights

and certain duties. In delict or tort these duties exist through the nature of the parties’

relationship regardless of the contractual obligations. In both jurisdictions, delict and

tort attempt to strike a balance between the individual’s wrongful conduct and

compensating the victim for his loss.

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Much of the law in this area has been developed by the Courts, however, there are now

a number of statutory rules which apply in particular, to employment, disability

discrimination, health and safety, data protection and occupier’s liability to name but a

few.

The development of the law surrounding duty of care has been similar in the different

jurisdictions but there are a number of differences between them, for example, the law

of defamation in Scotland in comparison to libel and slander in England, and the law of

nuisance. However, many of the general principles and the law of negligence are now

more or less the same.

Basic Principles

The authority for duty of care is the leading Scottish case of Donoghue v Stevenson

1932 SC (HL) 31. The principles laid down by the Court in this case still form the basis

for establishing a duty of care under Scots and English law.

An outline of the events surrounding this case is set out below:

By an action brought in the Court of Session the appellant, who was a shop assistant,

sought to recover damages from the respondent, who was a manufacturer of aerated

waters, for injuries she suffered as a result of consuming part of the contents of abottle of ginger-beer which had been manufactured by the respondent, and which

contained the decomposed remains of a snail.

The appellant by her condescendence averred that the bottle of ginger-beer was

purchased for the appellant by a friend in a cafe, at Paisley, Glasgow, which was

occupied by one Minchella; that the bottle was made of dark opaque glass and that the

appellant had no reason to suspect that it contained anything but pure ginger-beer;

that the said Minchella poured some of the ginger-beer out into a tumbler, and that the

appellant drank some of the contents of the tumbler; that her friend was then

proceeding to pour the remainder of the contents of the bottle into the tumbler when a

snail, which was in a state of decomposition, floated out of the bottle; that as a result

of the nauseating sight of the snail in such circumstances, and in consequence of the

impurities in the ginger-beer which she had already consumed, the appellant suffered

from shock and severe gastro-enteritis.

The appellant further averred that the ginger-beer was manufactured by the

respondent to be sold as a drink to the public (including the appellant); that it wasbottled by the respondent and labelled by him with a label bearing his name; and that

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the bottles were thereafter sealed with a metal cap by the respondent. She further

averred that it was the duty of the respondent to provide a system of working his

business which would not allow snails to get into his ginger-beer bottles, and that it

was also his duty to provide an efficient system of inspection of the bottles before the

ginger-beer was filled into them, and that he had failed in both these duties and had so

caused the accident.

The general principles for duty of care were highlighted in this case as:

• Does a duty of care exist?

This depends on the relationship between the parties, as a duty of care is not owed to

the world at large, but only to those who have a sufficiently proximate relationship.

The courts have found that there is no liability if the relationship between the parties is

too remote.

• Is there a breach of that duty?

Liability will only arise if the action breaches the duty of care and causes a loss or harm

to the individual who would have been reasonably foreseeable in all the facts and

circumstances of the case.

• Did the breach cause damage or loss to an individual’s person or property?

When Donoghue was decided it was thought that duty of care would only be applicable

to physical injury and damage to property; however this has now been extended, in

some circumstances, to where there is only pure economic loss.

Another Moral Reason for managing safety is stated by Dr Tony Boyle in his book

Health and Safety: Risk Management as -

“..there is an expectation on the part of society in general that organisations will take

reasonable care to ensure that the people and activities they manage do not harm

other people or their property. This expectation has changed over the years with

general shifts in the attitude of society to health and safety. What was acceptable 20

years ago in many aspects of life is no longer acceptable today. This is perhaps

noticeable in relation to environmental issues which were not even generally discussed

20 years ago. However people in general are now less tolerant of lack of health and

safety....It seems likely that, as people’s expectations of life in general increases, their

expectations for a healthy and safe life also increase.”

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It is therefore a moral responsibility of management to ensure that safe and healthy

working environments are provided for there workforce.

3.2 Legal Reasons

Legal: the preventive (by enforcement notices), punitive (through criminal sanctions),

and compensatory effects of law.

There are many legal reasons why health and safety must be managed in

organisations. There are Law’s in place that instil requirements and guidelines for

organisations to follow and comply with. Failure to do so can lead to fines,

imprisonment and lack of business image within the competitive markets.

The Health and Safety Executive (HSE) and the Health and Safety Commission (HSC)

has enforcement powers given to them under the Health and Safety at work etc Act

1974. Under section 10 of the Act the Health and Safety Executive (HSE) and the

Health and Safety Commission (HSC) were established their functions being:

HSE

This is the enforcement arm of the HSC. The Health and Safety Executive have

Inspectors up and down the country that has the following powers:

• An inspector can gain access without a warrant to a workplace at any time.

• An inspector can employ the police to assist them in the execution of their

duty(ies)

• An inspector can take equipment or materials onto the premises to assist in

carrying out investigations

• An inspector can carry out investigations and examinations of equipment,

machinery etc as they deem necessary, taking photographs and samples and

measurements etc.

• An inspector can order the removal and testing of equipment or machinery.

• An inspector can take statements, records and documents etc.

HSC

The Health and Safety Commission takes on the responsibility of developing health and

safety from the Government.

Powers of enforcement:

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a1 principles of health and safety management

Documents