NEBOSH National General CertificateUnit 1: Session 1

Scope of the health and safety problemMoral, economic and legal bases for good standards of health and safetySub-divisions and sources of lawCivil liability

The occupational health and safety problem

Total cost to UK society estimated to be between 14.5 and 18.1 billion/year (2.1% -2.6% GDP)

Loss to employers estimated to be 3.5 - 7.3 billion pounds/year (4% - 8% of gross company trading profits)

Injury and Ill-HealthInformation from RIDDOR indicates that each year:approximately 250 workers are killed there are approximately 27 500 major injuriesthere are approximately 130 000 over 3 day injuries (believed to be as much as 50% underreported) A major government survey in 1995 showed that 2.25 million people were suffering ill health caused, or made worse, by work. The most common were:musculoskeletal disorders1.2 millionstress related0.5 millionlower respiratory disease202 000hearing problems170 000

Arguments for good management of health and safety

Moral: ethical and responsible behaviour

Financial: the costs of injuries and ill-health

Legal: criminal and civil liability

Costs of injuries and ill-healthDirect costs: directly related to accident (e.g. personal injury claims, fines, plant damage)

Indirect: disruption to business, damage to reputation, investigation resources

Note: some of these costs may be insured

Law

Rules of human conduct, imposed upon and enforced among the members of a given state

Sub-divisions of LawCivil Law

Regulates relationships between legal persons (individuals and corporations)Proceedings started by one of parties - may settle at any timeCourt may consider disputes arising out of property rights, employment, family, etcCourt may compensate for wrongs

Criminal Law

Regulates conduct considered by state to be prejudicial to communityProceedings instituted by officers of crownCourt decides on guilt or innocencePrincipal object is to punish the guilty

Civil Law Law concerning private and civil affairs without direct involvement of the stateRelevant law may be a mixture of common law and statute lawBreaches usually remedied by compensationCosts and damages normally covered by insurance Employers Liability (Compulsory Insurance) Act 1969Burden of proof: on a balance of probabilities

Criminal LawAddresses public and moral wrong doing and made by parliament: written law of the landCrime is a wrong doing which directly and seriously threatens the well being and security of society and which cannot be left to be redressed by compensation of an injured partyNo absolute definition and may change over time, eg drugsGenerally anyone may begin a criminal prosecution but not health and safety offences - change is being consideredPrescribes punishment: eg, fines, imprisonmentBurden of proof: beyond reasonable doubt

Sources of Law: Common Law

Evolution of legal principles over time by decisions of courts and judges - system of rules or precedents which bind future similar cases

Some common law offences are crimes, (e.g. murder, criminal libel)

Sources of Law: Statute LawAddresses public and moral wrong doing and made by parliament: written law of the landCrime is a wrong doing which directly and seriously threatens the well being and security of society and which cannot be left to be redressed by compensation of an injured partyNo absolute definition and may change over time, eg drugsSupreme over all other sources of lawPrescribes punishment: eg, fines, imprisonment

European DimensionUK bound by by EU legislative procedures on joining (then EEC) in 1972 Veto by member states on proposed legislation changed to qualified majority voting on adoption of Single European Act 1986Significant progress made since SEA on new health and safety legislation

Single European Act 1986Article 100A: safety standards of plant and equipment (barriers to trade) - Directives implemented by Dept of Trade and Industry

Article 118A: minimum standards of health and safety in employment - Directives implemented by HSC/HSE

EU LawRegulations: similar to statute law and binding on member states without further action (e.g. tachograph requirements)

Directives: prescribe a result to be achieved by a set date leaving member states to transpose into national law (e.g. The Six Pack)

The European CourtsEuropean Court of Human Rights - interprets European Convention for Protection of Human Rights and Freedoms

European Court of Justice - gives rulings on interpretation of EU law at request of a member state or an individual

Common Law: NegligenceNegligence as a tort: a breach of a legal duty to take care that results in undesired damage by the defendant to the claimant (plaintiff )

Three essential elements of proof on claimant:1. Existence of a duty on defendant2. A breach of the duty3. Damage/injury

Duty of CareDonoghue v Stevenson [1932] - established duty to take reasonable care to avoid acts or omissions which on test of reasonable foreseeability would be likely to injure a neighbour

neighbour - persons so closely and directly affected by acts that they ought reasonably to be held in mind as being affected when acts or omissions are called into question

Duty of Care: ExtentWilson v Clyde Coal Co & English [1938] Non delegable duty to take care for safety of employees in particular provision of:

safe place of worksafe plant and equipmentsafe systems of worksafe and competent fellow employees

Vicarious liabilityResponsibility for actions of others when committed in course of employment, ie employer is responsible for torts of servants (employees) in course of employment authorised or not

Employer is not generally responsible for torts of an independent contractor except where authorised to commit and/or in respect of extra-hazardous operations

Breach of Statutory DutyA common law action based on statute to protect employees - usually linked with a claim in negligence (the double barrelled approach)

Claimant will succeed in an action for negligence if a breach of statute law is shown to have caused the injury

Act or Regulations may prohibit right of action in civil proceedings, eg HSWA 1974 and Management of Health and Safety at Work Regs 1999 - this may change

Negligence: DefencesLack of dutyLack of negligence: eg, employee on a frolic of his ownVoluntary acceptance of the risk: rarely of relevance to health and safety casesContributory negligence: rarely a complete defence - compensation may be reduced in proportion to claimants fault

Civil Law CasesAction must commence within three years of injury or when injured party becomes aware that injury has been caused by employerBurden of proof: on a balance of probabilitiesHearings take place in County Court or High Court without a juryThe Woolf reforms (1999): designed to ensure claims are dealt with speedily and justly

The Civil Courts The County Court: hears most civil actions

The High Court: hears complex cases and those where damages expected to be in excess of 50000

Industrial Tribunals

Industrial TribunalsBodies established to take decisions in particular areas of law

Main involvement of Industrial Tribunals in health and safety system is to hear appeals against Improvement and Prohibition Notices served by inspectors

Refusal to work: employees protected by Employment Rights Act 1996 where there is serious, imminent and unavoidable danger