Legislation

Case Law

Summary

Liability

Any

questions ?

Safety Advisory Groups

© Jon Payne 2014

The legal aspect

Jon Payne

Legislation

Case Law

Summary

Liability

Any

questions ?

Safety Advisory Groups

© Jon Payne 2014

The Health and Safety (Safety Advisory

Groups) Regulations 1992

…. No such regulations exist !

Legislation

Case Law

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Safety Advisory Groups

© Jon Payne 2014

Safety Advisory Groups

Is a SAG liable for its acts and

omissions ?

What do you think ?

Liability

Legislation

Case Law

Summary

Liability

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questions ?

Safety Advisory Groups

© Jon Payne 2014

Safety Advisory Groups

Do we mean ‘liable’ because of a law

passed by Parliament or something else ?

‘Liable’ to whom ?

Liability

Legislation

Case Law

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questions ?

Safety Advisory Groups

© Jon Payne 2014

Health & Safety at Work etc Act 1974

Legislation In the main, deals with employment situations

Licensing Act 2003Regulation of certain activities that need a licence

Concept of “Responsible Authorities”

The Corporate Corporate Corporate Corporate

ManslaughterManslaughterManslaughterManslaughter ActActActAct 2007

Legislation

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Safety Advisory Groups

© Jon Payne 2014

Health & Safety at Work etc Act 1974

Legislation

Important sections :

2: General duties of employers to their employees.

3: General duties of employers and self-employed to

persons other than their employees.

4: General duties of persons concerned with premises to

persons other than their employees.

20: Powers of inspectors.

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Safety Advisory Groups

© Jon Payne 2014

Legislation

Licensing Act 2003A SAG is not a ‘responsible authority’

There are no statutory powers for a licensing authority to

delegate any matter to an external body.

It would be unlawful for a licensing authority to add a

condition requiring an agreement to be reached.

• R v London Borough of Hammersmith & Fulham, ex p

Earls Court

• Ellis v Dubowski [1921] 3 KB 621,

• R v Greater London Council, ex p Blackburn [1976] 3 All

ER 184

• S182 Guidance at 8.43

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Safety Advisory Groups

© Jon Payne 2014

Legislation

Corporate Manslaughter and Corporate

Homicide Act 2007

An organisation to which this section applies is guilty of an

offence if the way in which its activities are managed or

organised—

(a)causes a person's death, and

(b)amounts to a gross breach of a relevant duty of

care owed by the organisation to the deceased.

Legislation

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© Jon Payne 2014

Legislation

Corporate Manslaughter and Corporate

Homicide Act 2007

The organisations to which this section applies are—

(a)a corporation;

(b)a department or other body listed in Schedule 1;

(c)a police force;

(d)a partnership, or a trade union or employers'

association, that is an employer.

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© Jon Payne 2014

Legislation

Corporate Manslaughter and Corporate

Homicide Act 2007

A duty includes;

(a)a duty owed to employees/other persons working

for the organisation or performing services for it;

(b)a duty owed as occupier of premises;

(c)a duty owed in connection with—

(i)the supply by the organisation of goods or services

(iii)the carrying on by the organisation of any other

activity on a commercial basis, or

(iv)the use or keeping by the organisation of any plant,

vehicle or other thing;

Legislation

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© Jon Payne 2014

Should a SAG be

concerned ?Legislation

Not all law is based on the Acts or Statutory Instruments of

Parliament

Legislation

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© Jon Payne 2014

Claims may arise where :

There is ;

• Negligence

• A statutory tort

• A breach of Contract

Case Law

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© Jon Payne 2014

Negligence claims may arise where :

• A duty of care exists

• There is a breach of duty

• The breach causes the harm

• The harm is not too remote

Case Law

Legislation

Case Law

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Safety Advisory Groups

© Jon Payne 2014

Donoghue v Stevenson

“You must take reasonable

care to avoid acts or

omissions which you can

reasonably foresee would

be likely to injure your

neighbour.”

Case Law

Legislation

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© Jon Payne 2014

Caparo –v- Dickman

Is there a duty of care ?

• harm must be reasonably foreseeable

• there must be ‘proximity’

• it must be fair, just and reasonable to

impose liability

Case Law

Legislation

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© Jon Payne 2014

Nettleship v Weston

What is the standard to be considered?

• That of a ‘experienced’ and ‘skilled’ SAG

• But the organiser carries some liability too

Case Law

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Case Law

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© Jon Payne 2014

“Dreamspace”

Case Law

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© Jon Payne 2014

“Dreamspace”

“it would seem clear from this that a unique structure such

as Dreamspace would have been outside the normal range

of competence for a local authority’s Health and Safety

team to assess for the purposes of structural safety and

integrity. Given that Maurice Agis was the “manufacturer”

of the structure then, unless he had commissioned

structural engineers to provide advice about how to ensure

that the structure was secure from movement caused by

the impact of wind, what would have been provided as

suitable anchorage would have been no more than the

product of well-meaning guesswork”

Case Law

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© Jon Payne 2014

“Dreamspace”Prosecutions taken against ;

• Mr Agis, the designer – s3(2) offence

£10,000 fine, reduced to £2,500 on appeal

• Brouhaha International Ltd - s2(1) offence

£4,000 fine

• The local authority – s3(1) offence

£20,000 fine

• The chairman of the SAG

‘Left on file’

Case Law

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© Jon Payne 2014

“Dreamspace”Civil claims were also made :

Furmedge & Ors v Chester -Le -Street District Council

[2011] EWHC 1226 (QB)

The “appropriate apportionment of responsibility is 45% to

the Council and 55% to Brouhaha International Limited”

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© Jon Payne 2014

Health & Safety at Work etc

Act 1974

s3(1)

It shall be the duty of every employer to conduct his

undertaking in such a way as to ensure, so far as is

reasonably practicable, that persons not in his employment

who may be affected thereby are not thereby exposed to

risks to their health or safety.

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Legislation

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© Jon Payne 2014

“Dreamspace”

The Council’s failing was not necessarily

because of the SAG – it was a “systems

failure” (para 68 & 175 of judgment)

This was a “serious fault with a significant

causative potency”

Case Law

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© Jon Payne 2014

Who is in control ?

Wheat v E Lacon & Co :

• Principle is occupational control

• Two or more may be in control

Legislation

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© Jon Payne 2014

Who is in control ?

Furmedge and Collings v

(1) Chester-le-Street District Council

(2) Brouhaha International Limited

(3) Maurice Agis

Echoed Wheat – Issue is one of control

and/or occupation. Is there “sufficient

degree of control over premises to be able

to ensure safety ” ?

Legislation

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© Jon Payne 2014

HSW Act 1974, s 4

It shall be the duty of each person who has, to any

extent, control of premises to which this section

applies or of the means of access thereto or egress

therefrom or of any plant or substance in such

premises to take such measures as it is reasonable

for a person in his position to take to ensure, so far as

is reasonably practicable, that the premises, all

means of access thereto or egress therefrom

available for use by persons using the premises, and

any plant or substance in the premises or, as the case

may be, provided for use there, is or are safe and

without risks to health

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© Jon Payne 2014

Who could claim ?

• Those directly affected

• Secondary victims : Depending on the

circumstances.

McLoughlin v O'Brian

Alcock v Chief Constable of South Yorkshire Police

Case Law

Legislation

Case Law

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Safety Advisory Groups

© Jon Payne 2014

So is a SAG liable ?

Summary

Legislation

Case Law

Summary

Liability

Any

questions ?

Safety Advisory Groups

© Jon Payne 2014

Any questions

Jon Payne

Tel : 07 933 944 000

jpayne@safetylawyers.co.uk