Law for Health & Safety Practitioners
UK health and safety laws have been established over the last 200 years. Initial statutes relating to specific industries and practices have over time been replaced by more general legislation covering more general principals of health and safety. Throughout this historical development, the role of the courts has been crucial in clarifying general principles and statements of law.
UK statute law is passed by parliament and provides legal definition, guidelines and boundaries of behaviour and practice.
Common law, and specifically civil liability has been constructed with the body of case law put together over scores of years. As people’s principles and attitudes change over passing time so does common law. The judiciary must decide on the doctrine of precedence when making adjudication. These verdicts then influence successive cases and how decisions are interpreted. One judge's ruling will set a precedent for subsequent, similar cases. Likewise, when a judge is taking into consideration the plus points of a specific case, they will look to previous occasions in comparable situations in order to bench mark, in which to make their judgement (J Stranks, 1996, p. 1 & 2) & (EDP Health, Safety & Environmental Consultants, 1989 – 2006).
A civil action involves individuals. In this case a claimant sues a defendant in order to get an outcome, which will be of benefit to the claimant. The outcome of a civil action tends to be in the form of a financial payout. The cases in a civil action are heard at County Court or High Court and unlike criminal action the burden of proof is based on the balance of probabilities. This is a lesser burden of proof than Beyond Reasonable Doubt (Legal-Explanations. com, 2006). The most common actions that tend to be heard in civil courts are accident claims with damages being awarded to an injured person, although many accident claims never actually make it to court. This is because companies will more often than not settle out of court as it is more advantageous both on the “company’s purse strings and their reputation" (J Stranks, 1996, p. 11).
Initially health and safety law was developed from the belief that if employers have to pay recompense for injuries sustained in the workplace they would find this enough of a motivator to ensure the improvement of health and safety did reduce accidents.
Originally health and safety legislation was enforced through the use of criminal law against companies/factories who broke the legislation. Early in the 19th Century new industrial processes and machinery presented new hazards and minor legislation was introduced in an attempt to address some of the safety issues. In 1833 the Factory act was passed, a section of which required four factory inspectors be appointed with powers to investigate and prosecute contraventions this measure fell well short of the commitment needed (N Selwyn, 2000, p.4.).
Over time the importance on sanctions changed, this was due to two issues. Firstly the enforcement of legal health and safety constraints on British industry meant factories became less competitive than their foreign counterparts. The limited capacity of the judicial system also meant that courts were over loaded delaying legal proceedings leading to further restraints to industry. The second and probably the more significant reason for the change in prominence of sanctions was that the wronged person could, if he/she had suffered injuries at work, bring a civil action against their employer for a breach of a statutory duty.
The case of Groves v Lord Wimbourne 1898 was the first time a successful prosecution was brought against an employer for breach of statutory duty which in this case related to unfenced machinery that resulted in the workers fingers sustaining injuries. The absolute nature of the statutory duty contained in the legislation, financial redress became very attractive for injured workers, and this resulted in diverting the object of the law from prosecution and prevention towards a system of civil compensation. In Hutchison v London Eastern Rly Co 1942, Lord Justice Goddard stated “ The real incentive for the observance by employers of their statutory duties is not their liability to substantial fines, but the possibility of heavy claims of damages" (N Selwyn, 2000 p. 4 & 5).
The early Victorian piecemeal legislation set a pattern of narrow regulatory standards, which were formulated for certain groups of people, exposed to particular hazards in specific industries notably mining and factories. So much so that by the 1970s there were 30 statutes and 500 sets of regulations.
In 1972 after being appointed to, “review the provision made for the health and safety of persons in the course of their employment", the Robens report found a great deal wrong with the system so made a number of far reaching proposals as a solution to these problems. The first was to devise a system where health and safety was perceived as the concern of everyone, employer and employee and not just the dedicated few. In the report it stated “our present system places too much reliance on State regulation, and rather too little on personal responsibility and self-generating effort". The second was to develop a single comprehensive framework of legislation that would cover all aspects of the working environment, to be supplemented and supported by controls that would address specific problems, which would need to be assisted by codes of practice that were more flexible. Thirdly the enforcement of the legislation would require a more unified authority which would have overall responsibility for initiating legislation, giving assistance and advice, having stronger enforcement powers and when necessary be able to delegate its enforcement functions. This new approach was known as the “Robens Philosophy" in which a broad legislative framework of general duties would impose a proactive approach to health and safety of the workplace, so promoting a safe system of work. This philosophy was largely adopted into the Health and Safety at Work etc Act 1974. (HSWA).
Lord Roben referred back to historical English common and case law to support the legal framework and to clarify key phrases. It is essential that people are able to make a clear distinction between similar phrases and therefore left in no doubt about the precise meaning of each phrases.
For example, in section 2 (1) of HSWA it states that “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 employees". To find accurate meaning of the phase “reasonably practicable" you have to refer to case law Edwards v. National Coal Board (1949), when a miner was killed while travelling down an unsupported road. Lord Asquith the judge decided a balance had to be struck between the risk against the sacrifice (cost, time and trouble). He deemed in this case that it was not an inconsequential risk and the coal board should have made the road safe. Therefore to carry out this duty, “so far as is reasonably practicable" means there should be a balance between time, trouble and cost of putting measures in place to avoid the risk. The case also concluded that size of the organisation or its monetary wealth should not be considered when making decision (B Barrett and R Howells, 1997, p. 67).
Another case (Marshall v. Gotham 1954) involving a collapse of a mine roof only five years later changed how the term was interpreted when the judge ruled that if the “precautions were practicable they should be under taken", therefore changing the interpretation of the term to suggest the cost, time and trouble are NOT to be taken into account in arriving at a decision. This case not only changed how the term was interpreted it also encouraged greater employer self regulation. The increase in risk assessments and method statements to ensure a safe environment for all stakeholders can be seen as a by-product of the interpretation as employers became more keen to avoid civil action.
Another phrases used in HSWA is “Duty of Care (Neighbour Principal)" The Donoghue v. Stevenson case involved two friends, one lady bought a bottle of ginger beer and gave it to her friend. The bottle contained a dead snail which subsequently made the friend ill. The lady who bought the beer sued the maker for a breach of contract. The judge decided that the beer manufacture had a “duty of care" not just to the lady who bought the beer but also to her friend. In this sense, the judge stated that reasonable care must be taken to ensure acts or omissions (where there is reasonable foresight) would not likely injure any of the stakeholders, extending the duty of care to the ‘neighbour’ (J Stranks, 1996, p. 244).
This was further developed by Lord Wright in Wilsons & Clyde Coal Co Ltd v English (1937) Lord Wright provided a more specific definition of the employers duty in respect of the “neighbour relationship", defined the responsibility in three parts, “the provision of a competent staff of men, adequate material, and a proper system and effective supervision" (B Barrett and R Howells, 1997, p. 209 & 210).
Some of the issues which initially appear straight forward have led to difficulties because the law is an enabling Act and as such is not specific. For example, the phrases “work" and “at work" can have many interpretations. The case between Coult v Szuba (1982) showed how courts have struggled to interpret the law, often meaning an adjudication cannot be reached. The employee in this case, although at work, was not prosecuted under the HSWA because he was still travelling to his work place and could have been prosecuted under Hignways Act 1972. This became an even greyer area three years later when two cases Nancollas v Insurance Officer and Ball v Insurance officer (1985) came to court and the judges were unable to identify “whether the claiment was at the material time acting in the course of his contractual obligations to his employers".
The HSWA 2 (2) provides extensive “general duties" for all employers to adhere to in creating a safe working environment. The foundation of many of these duties can be found in case law and common law. For example, the phrase “foreseeable can be traced to Brydon v Stewart (1859) where a mining firm was found to be negligent in relation to an accident in an mining open lift. The phrase was further clarified in 1953, Lamtimer v AEC where the employers were not found liable for injuries caused to an employee who slipped during unexpected flooding. The employer had taken “reasonable precautions" and the risk had not been foreseeable.
Section 2 (2) also considers provision of “safe work systems" and identifies that duties under common law are in addition to those assumed by statute. This is demonstrated in Bux v Slough Metals Ltd (1974)
Where an employee was blinded after failing to wear the protective goggles provided. The employee stated that he had chosen not to wear the goggles because they kept steaming up. The court concluded that the employers were liable for the blinding because they had not provided a safe work system (the goggles were not “fit for purpose) and they had breached their duty of “effective supervision" (I Fife and EA Machin, 1979, p. 84 & 542).
Tesco v Seabridge (1988) highlighted duty of care in relation to “maintenance". Some of the screws holding an electric fan were missing and an employee was subsequently injured. Tesco argued that the duty of care sat with the electrical contractors who fitted the fan, but the court ruled that Tesco were liable as the duty of care in relation to maintenance rested with Tesco and as such were in breach of duty.
The provision of safety policies within the HSWA have also been developed over a number of years through cases like Armour v Skeen (1977) where employers were held liable because a lack of health and safety policy meant that no safe system of work was established, leading to the accident of a worker falling from a bridge.
In conclusion, the journey of UK Health and Safety Law is a far from linear path, but is instead a mix of statute, criminal and civil law, where precedents from cases many years earlier are used to inform present day decision making.
Society and peoples values have changed considerably over time, putting a much higher worth on human life. The philosophy of waiting for an accident to happen and then paying compensation has been overtaken by a greater focus on prevention and improved general health and safety - through the issuing of improvement and prohibition notices by the inspectorate, also in the more prescriptive requirements of the health and safety regulations.
Historically civil law had a focus on compensation; in modern times it has become an essential tool in clarifying terms used in the more general preventative legislation.
The greater involvement of the workforce in health and safety at work through the appointment of safety representatives and the creation of safety committees, is raising the awareness of the employee to their responsibilities for health and safety and the duty of care that they are entitled.