The Health and Safety at Work Act

The essential principle of the HASAW contained within the framework of the statute concerns the prevention of accidents.Infringement risks criminal prosecution.

The Act(1974) cannot remove risk,but asks of employers to consider carefully what possibilities could arise and prepare judiciously any actions required to deal with such hazards when they arise.Damages from prospective plaintiffs are usually linked to negligence and occupiers’ liability,for a fitness facility.

Refer to Appendix A:(The Occupiers’ liability Act 1957 and The Occupiers’ liability Act 1984)

Ruth, “using the gym", sustains a broken ankle.Ruth has become a prospective claimant with the owner/s of the fitness facility possibly liable within the area of negligence.

Further legislation applicable to a fitness facility concerns The Management of Health and Safety at Work(MHSWR) 1999 containing a most important obligation for employers to carry out a risk assessment.

Section 3(1) states As an employer you must, under the Management of Health and Safety at Work

Regulations (MHSWR) 1999, carry out an assessment of the risks, resulting from

work activity to the health and safety of employees, and others, such as, the

public, volunteers and external contractors visiting the premises. The risks must

then be controlled, preferably by eliminating them altogether or else by

introducing appropriate protective measures.(refer to Appendix B)

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Appendix A:

The liability to visitors is covered by the Occupiers’ Liability Act 1957 and the Occupiers’ Liability Act 1984.

The 1957 Act deals with lawful visitors and the 1984 Act deals with trespassers.

The occupier means the person in control of the land, building, premises, shop, warehouse, car park etc – in fact, the 1957 Act has even been held to cover ships, hovercraft, scaffolding and quaysides, the scope is quite wide indeed. The ‘occupier’ might be a local authority, a company, an individual or a partnership.

The acknowledged test for ‘occupation’ can be found in the case of Wheat –v- Lacon [1966] AC 552. It was said ...... “Wherever a person has a sufficient degree of control over premises that he ought to realise that any failure on his part to use care may result in injury to a person lawfully there ......"

S2 (2) of the Act is quite clear, it states ...... “The common duty of care is a duty to take such care as in all the circumstances of the case is reasonable to see that the visitor will be reasonably safe in using the premises for the purpose for which he is invited or permitted to be there ....."

Interestingly, the Act acknowledges that “..... an occupier must be prepared for children to be less careful that adults ....." [S2 (3)a].

In Glasgow –v- Taylor [1922] 1 AC 44, the corporation council were found liable when a young child ate poisonous berries in a municipal park. Similarly, in Jolley –v- Sutton LBC [2000] 3 All ER 409, (an interesting case of ‘allurement’), the House of Lords decided that a boy who was injured when a small boat he had propped up (on council land) fell on him, could claim compensation from the occupiers’ of the land, i.e. the council.

In Dawson –v- Scottish Power Plc [1999-SL1] the court found Scottish Power liable when an eleven year old boy had climbed over the fence surrounding an electricity sub-station, was electrocuted. The boy was found one third contributory negligent. The fence was six feet high, but soil had built up at the base of the fence, making it only four feet high. By the way, the fence was topped with spikes and had warning notices stating ‘Danger of death – Keep out’.

In all these cases, the courts found that it was reasonably foreseeable that a child would become injured due to the occupier’s negligence.

Rather sensibly, the 1957 Act recognises that experts working on the property will “..... appreciate and guard against any special risks ....." S2 (3)b. So, in Roles –V- Nathan [1963] 1 WLR 1117, the occupier was not held liable for the death of two chimney sweeps by reason of carbon monoxide and in General Cleaning Contractors –v- Christmas (that was the man’s name by the way) [1953] AC 180 the occupier was not liable when their window closed on Christmas’ hand, causing him to fall. As a window cleaner, he should have taken such precautions to prevent this – he should have been aware of the special risks – after all, he was a window cleaner’! In any event, his employer was liable as they had not provided a safe system of work (that’s another interesting area of tort law).

Generally, warning signs and notices should be specific. It is not enough for an occupier to erect a sign stating ‘BEWARE’ or ‘DANGEROUS’. In Staples –v- West Dorset District Council [1995] 93 LGR 536, the Court of Appeal found for the council. Simply, when you walk on slippery stones (on the Cobb at Lyme Regis), there is a good chance you will slip and fall. You don’t really need a warning sign now do you?

By the way, if you see a sign that says something like ‘We do not accept responsibility fro injury caused on these premises’, it’s unlawful by reason of the Unfair Contracts Act 1977 S2 (1). But, of course, the occupiers know that and hope that you don’t.

Now, the 1984 Act is somewhat different. It deals with the duty owed to persons ‘other than visitors’ and by this it means ‘trespassers’ – people using a private right of way and oddly, people visiting National Parks. S1 (3) of the 1984 Act states the occupier owes a duty if:

a)     He is aware of the danger.

b)     He knows/has reasonable ground to believe that the person is in the vicinity of the danger.

c)     He should be reasonably expected to offer the person some protection.

S1 (6) provides that no duty is owed to persons who willingly accepts risks. This was the main point of Tomlinson –v- Congleton [2004] 1 AC 46, where the claimant became injured when he dived into a pool at a country park. He ignored the warning signs and became seriously injured. When he entered the water, he became a trespasser. The defendants (relied on Scrutthon’s LJ opinion in The Carlgarth [1927] P93 11 “..... When you invite a person into your house to use the staircase, you do not invite him to slide down the banisters ....."

In Tomlinson, Lord Hobhouse said “..... Does the law require that all trees be cut down because some youths may climb them and fall? Does the law require the coastline and other beauty spots to be lined with warning notices? ....." The answer to all these questions, is of course, no.

And remember, an occupier cannot be prosecuted using these Acts, they refer to civil actions only.

http://www.compensationssecrets.co.uk

APPENDIX B:

Persons working in host employers' or self-employed persons' undertakings

12.—(1) Every employer and every self-employed person shall ensure that the employer of any employees from an outside undertaking who are working in his undertaking is provided with comprehensible information on—

(a)the risks to those employees' health and safety arising out of or in connection with the conduct by that first-mentioned employer or by that self-employed person of his undertaking; and

(b)the measures taken by that first-mentioned employer or by that self-employed person in compliance 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 in so far as the said requirements and prohibitions relate to those employees.

(2) Paragraph (1) (except in so far as it refers to Part II of the Fire Precautions (Workplace) Regulations 1997) shall apply to a self-employed person who is working in the undertaking of an employer or a self-employed person as it applies to employees from an outside undertaking who are working therein; and the reference in that paragraph to the employer of any employees from an outside undertaking who are working in the undertaking of an employer or a self-employed person and the references in the said paragraph to employees from an outside undertaking who are working in the undertaking of an employer or a self-employed person shall be construed accordingly.

(3) Every employer shall ensure that any person working in his undertaking who is not his employee and every self-employed person (not being an employer) shall ensure that any person working in his undertaking is provided with appropriate instructions and comprehensible information regarding any risks to that person’s health and safety which arise out of the conduct by that employer or self-employed person of his undertaking.

(4) Every employer shall—

(a)ensure that the employer of any employees from an outside undertaking who are working in his undertaking is provided with sufficient information to enable that second-mentioned employer to identify any person nominated by that first mentioned employer in accordance with regulation 8(1)(b) to implement evacuation procedures as far as those employees are concerned; and

(b)take all reasonable steps to ensure that any employees from an outside undertaking who are working in his undertaking receive sufficient information to enable them to identify any person nominated by him in accordance with regulation 8(1)(b) to implement evacuation procedures as far as they are concerned.

(5) Paragraph (4) shall apply to a self-employed person who is working in an employer’s undertaking as it applies to employees from an outside undertaking who are working therein; and the reference in that paragraph to the employer of any employees from an outside undertaking who are working in an employer’s undertaking and the references in the said paragraph to employees from an outside undertaking who are working in an employer’s undertaking shall be construed accordingly.

legislation.gov.uk

How do I carry out a risk assessment?

There is no set way of undertaking a risk assessment but the simplest and most straightforward way is to consider following the five steps in our leaflet: Five steps to risk assessment PDF[1].

Identify the hazards

Decide who might be harmed and how

Evaluate the risks and decide on precaution

Record your findings and implement them

Review your assessment and update if necessary

Remember a risk assessment is only effective if you and your staff act on the findings. It is important you follow through with any actions required and review the assessment on a regular basis. 

Five steps to risk assessment

Five steps to risk assessment aims to help you assess health and safety risks.

A risk assessment is an important step in protecting your workers and your business, as well as complying with the law. It helps you focus on the risks that really matter in your workplace – the ones with the potential to cause harm. In many instances, straightforward measures can readily control risks, for example, ensuring spillages are cleaned up promptly so people do not slip or cupboard drawers kept closed to ensure people do not trip. For most, that means simple, cheap and effective measures to ensure your most valuable asset – your workforce – is protected.

The law does not expect you to eliminate all risk, but you are required to protect people as far as is ‘reasonably practicable’. This guide tells you how to achieve that with minimum fuss.

This is not the only way to do a risk assessment, there are other methods that work well, particularly for more complex risks and circumstances. However, we believe this method is the most straightforward for most organisations.

What is risk assessment?

A risk assessment is simply a careful examination of what, in your work, could cause harm to people, so that you can weigh up whether you have taken enough precautions or should do more to prevent harm. Workers and others have a right to be protected from harm caused by a failure to take reasonable control measures.

Accidents and ill health can ruin lives and affect your business if output is lost, machinery is damaged, insurance costs increase or you have to go to court. You are legally required to assess the risks in your workplace so you must put plans in place to control risks.

How to assess the risks in your workplace

Follow the five steps in our leaflet: Five steps to risk assessment PDF[1].

Identify the hazards[2]

Decide who might be harmed and how[3]

Evaluate the risks and decide on precaution[4]

Record your findings and implement them[5]

Review your assessment and update if necessary[6]

Don’t overcomplicate the process. In many organisations, the risks are well known and the necessary control measures are easy to apply. You probably already know whether, for example, you have employees who move heavy loads and so could harm their backs, or where people are most likely to slip or trip. If so, check that you have taken reasonable precautions to avoid injury.

If you run a small organisation and you are confident you understand what’s involved, you can do the assessment yourself. You don’t have to be a health and safety expert.

Download the Risk Assessment and Policy Template[7]. This template brings together your risk assessment, health and safety policy, and record of health and safety arrangements into one document to help you get started and save time. If you already have a health and safety policy, you may choose to simply complete the risk assessment part of the template. We also have a number of example risk assessments[8] to show you what a risk assessment might look like. Choose the example closest to your own business and use it as a guide for completing the template, adapting it to meet the needs of your own business.

If you work in a larger organisation, you could ask a health and safety adviser to help you. If you are not confident, get help from someone who is competent. In all cases, you should make sure that you involve your staff or their representatives in the process. They will have useful information about how the work is done that will make your assessment of the risk more thorough and effective. But remember, you are responsible for seeing that the assessment is carried out properly.

When thinking about your risk assessment, remember:

a hazard is anything that may cause harm, such as chemicals, electricity, working from ladders, an open drawer, etc; and

the risk is the chance, high or low, that somebody could be harmed by these and other hazards, together with an indication of how serious the harm could be.

APPENDIX C:

Health and Safety at Work etc.Act 1974

2General duties of employers to their employees

(1)It shall be the duty of every employer to ensure, so far as is reasonably practicable, the health, safety and welfare at work of all his employees.

(2)Without prejudice to the generality of an employer's duty under the preceding subsection, the matters to which that duty extends include in particular—

(a)the provision and maintenance of plant and systems of work that are, so far as is reasonably practicable, safe and without risks to health ;

(b)arrangements for ensuring, so far as is reasonably practicable, safety and absence of risks to health in connection with the use, handling, storage and transport of articles and substances ;

(c)the provision of such information, instruction, training and supervision as is necessary to ensure, so far as is reasonably practicable, the health and safety at work of his employees;

(d)so far as is reasonably practicable as regards any place of work under the employer's control, the maintenance of it in a condition that is safe and without risks to health and the provision and maintenance of means of access to and egress from it that are safe and without such risks;

(e)the provision and maintenance of a working environment for his employees that is, so far as is reasonably practicable, safe, without risks to health, and adequate as regards facilities and arrangements for their welfare at work.

(3)Except in such cases as may be prescribed, it shall be the duty of every employer to prepare and as often as may be appropriate revise a written statement of his general policy with respect to the health and safety at work of his employees and the organisation and arrangements for the time being in force for carrying out that policy, and to bring the statement and any revision of it to the notice of all of his employees.

(4)Regulations made by the Secretary of State may provide for the appointment in prescribed cases by recognised trade unions (within the meaning of the regulations) of safety representatives from amongst the employees, and those representatives shall represent the employees in consultations with the employers under subsection (6) below and shall have such other functions as may be prescribed.

(5)Regulations made by the Secretary of State may provide for the election in prescribed cases by employees of safety representatives from amongst the employees, and those representatives shall represent the employees in consultations with the employers under subsection (6) below and may have such other functions as may be prescribed.

(6)It shall be the duty of every employer to consult any such representatives with a view to the making and maintenance of arrangements which will enable him and his employees to cooperate effectively in promoting and developing measures to ensure the health and safety at work of the employees, and in checking the effectiveness of such measures.

(7)In such cases as may be prescribed it shall be the duty of every employer, if requested to do so by the safety representatives mentioned in subsections (4) and (5) above, to establish, in accordance with regulations made by the Secretary of State, a safety committee having the function of keeping under review the measures taken to ensure the health and safety at work of his employees and such other functions as may be prescribed.

3General duties of employers and self-employed to persons other than their employees

(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.

(2)It shall be the duty of every self-employed person to conduct his undertaking in such a way as to ensure, so far as is reasonably practicable, that he and other persons (not being his employees) who may be affected thereby are not thereby exposed to risks to their health or safety.

(3)In such cases as may be prescribed, it shall be the duty of every employer and every self-employed person, in the prescribed circumstances and in the prescribed manner, to give to persons (not being his employees) who may be affected by the way in which he conducts his undertaking the prescribed information about such aspects of the way in which he conducts his undertaking as might affect their health or safety.

7General duties of employees at work

It shall be the duty of every employee while at work—

(a)to take reasonable care for the health and safety of himself and of other persons who may be affected by his acts or omissions at work; and

(b)as regards any duty or requirement imposed on his employer or any other person by or under any of the relevant statutory provisions, to co-operate with him so far as is necessary to enable that duty or requirement to be performed or complied with

legislation.gov.uk