Levels of statutory duty

We continue our courses in health, safety envirement to help you to prepare your NEBOSH.

Levels of statutory duty

There are three levels of statutory duty which form a hierarchy of duties. These levels are used extensively in health and safety statutory (criminal) law but have been defined by judges under common law. The three levels of duty are absolute, practicable and reasonably practicable.

Health and safety foundations

- Absolute duty

This is the highest level of duty and often occurs when the risk of injury is so high that injury is inevitable unless safety precautions are taken. It is a rare requirement regarding physical safeguards, although it was more common before 1992 when certain sections of the Factories Act 1961 were still in force. No assessment of risk is required but the duty is absolute and the employer has no choice but to undertake the duty. The verbs used in the Regulations are ‘must’ and ‘shall’.

An example of this is Regulation 11(1) of the Provision and Use of Work Equipment Regulations concerning contact with a rotating stock bar which projects beyond a headstock of a lathe. Although this duty is absolute, it may still be defended using, for example, the argument that ‘all reasonable precautions and all due diligence’ were taken. This particular defence is limited to certain health and safety regulations such as The Electricity at

Work Regulations and The Control of Substances Hazardous to Health.

Many of the health and safety management requirements contained in health and safety law place an absolute duty on the employer. The need for written safety policies and risk assessments when employee numbers rise above a basic threshold are examples of this.

-Practicable

This level of duty is more often used than the absolute duty as far as the provision of safeguards is concerned and, in many ways, has the same effect. A duty that ‘the employer ensure, so far as is practicable, that any control measure is maintained in an efficient state’ means that if the duty is technically possible or feasible then it must be done irrespective of any difficulty, inconvenience or cost.

Examples of this duty may be found in the Provision and Use of Work Equipment Regulations (Regulation 11(2) (a and b)) and the Control of Lead at Work Regulations

where Regulation 14 states, ‘Every employer who provides any control measure . . . shall ensure, so far as is practicable, that it is maintained in an efficient state . . . and in good repair’.

-Reasonably practicable

This is the most common level of duty in health and safety law and was defined by Judge Asquith in Edwards v. the National Coal Board (1949) as follows:

‘Reasonably practicable’ is a narrower term than ‘physically possible’, and seems to me to

imply that computation must be made by the owner in which the quantum of risk is placed

on one scale and the sacrifice involved in the measures necessary for averting the risk (whether in time, money or trouble) is placed in the other, and that, if it be shown that

there is a gross disproportion between them – the risk being insignificant in relation to the

sacrifice – the defendants discharge the onus on them.

In other words, if the risk of injury is very small compared to the cost, time and effort required to reduce the risk, then no action is necessary. It is important to note that money, time and trouble must ‘grossly outweigh’ not balance the risk. This duty requires judgement on the part of the employer (or his adviser) and clearly needs a risk assessment to be undertaken with conclusions noted. Continual monitoring is also required to ensure that risks do not increase. There are numerous examples of this level of duty, including the Manual Handling Operations Regulations and The Control of Substances Hazardous to Health.

The term ‘suitable and sufficient’ is used to define the scope and extent required for health and safety risk assessment and may be interpreted in a similar way to reasonably practicable. More information is given on this definition later.

Common law torts and duties

We continue our courses in health, safety envirement to help you to prepare your NEBOSH.

Common law torts and duties

Negligence

The only tort (civil wrong) of real significance in health and safety is negligence. Negligence is the lack of reasonable care or conduct which results in the injury (or financial loss) of or to another. Whether the act or omission was reasonable is usually decided as a result of a court action. There have been two important judgements that have defined the legal meaning of negligence. In 1856, negligence was judged to involve actions or omissionsand the need for reasonable and prudent behaviour.

In 1932, Lord Atkin said, You must take reasonable care to avoid acts or omissions which you reasonably foresee would be likely to injure your neighbour. Who then, in law is my neighbour? The answer

seems to be persons who are so closely and directly affected by my act that I ought reasonably to have them in contemplation as being so affected when I am directing my mind to the acts or omissions which are called in question.

It can be seen, therefore, that for negligence to be established, it must be reasonable and foreseeable that the injury could result from the act or omission. In practice, the Court may need to decide whether the injured party is the neighbour of the perpetrator. A collapsing

scaffold could easily injure a member of the public who could be considered a neighbour to the scaffold erector.

An employee who is suing his employer for negligence, needs to establish the following three criteria:

-           a duty was owed to him by his employer

-           there was a breach of that duty

-           the breach resulted in the injury, disease, damage and/or loss.

These tests should also be used by anyone affected by the employer’s undertaking (such as contractors and members of the public) who is suing the employer for negligence.

If the employer is unable to defend against the three criteria, two further partial defences are available. It could be argued that the employee was fully aware of the risks that were taken by not complying with safety instructions, (known as volenti non fit injuria or ‘the risk was willingly accepted’). This defence is unlikely to be totally successful because courts have ruled that employees have not accepted the risk voluntarily since economic necessity forces them to work.

The second possible defence is that of ‘contributory negligence’ where the employee is deemed to have contributed to the negligent act. This defence, if successful, can significantly reduce the level of compensation (up to 80% in some cases).

Duties of care

Several judgements have established that employers owe a duty of care to each of their employees. This duty cannot be assigned to others, even if a consultant is employed to advise on health and safety matters or if the employees are sub-contracted to work with another

employer. These duties may be sub-divided into four groups. Employers must:

-           provide a safe place of work

-           provide safe plant and equipment

-           provide a safe system of work

-           provide safe and competent fellow employees.

Employer duties under common law are often mirrored in statute law. This, in effect, makes them both common law and statutory duties.

The requirements of a safe workplace, including the maintenance of floors and the provision of walkways and safe stairways, for example, are also contained in the Workplace (Health, Safety and Welfare) Regulations.

The requirement to provide competent fellow employees includes the provision of adequate supervision, instruction and training. As mentioned earlier, employers are responsible for the actions of their employees (vicarious liability) provided that the action in question took place during the normal course of their employment.

Sources of law (England and Wales)

We continue our courses in health, safety envirement to help you to prepare your NEBOSH.

Sources of law (England and Wales)

There are two sources of law – common law and statute law.

Common law

Common law dates from the eleventh century when William I set up Royal Courts to apply a uniform (common) system of law across the whole of England. Prior to that time, there was a variation in law, or the interpretation of the same law, from one town or community to another. Common law is based on judgements made by courts (or strictly judges in courts). In general, courts are bound by earlier judgements on any particular point of law – this is known as ‘precedent’. Lower courts must follow the judgements of higher courts. Hence judgements made by the Law Lords in the House of Lords form the basis of most of the common law currently in use.

In health and safety, the legal definition of negligence, duty of care and terms such as ‘practicable’ and ‘as far as is reasonably practicable’ are all based on legal judgements and form part of the common law. Common law also provides the foundation for most civil claims made on health and safety issues.

Statute law

Statute law is law which has been laid down by Parliament as Acts of Parliament. In health and safety, an Act of Parliament, the Health and Safety at Work Act 1974, lays down a general legal framework. Specific health and safety duties are, however, covered by Regulations or Statutory Instruments – these are also examples of statute law. If there is a conflict between statute and common law, statute law takes precedence.

However, as with common law, judges interpret statute law usually when it is new or ambiguous. Although for health and safety, statute law is primarily the basis of criminal law, there is a tort of breach of statutory duty which can be used when a person is seeking damages following an accident or illness. Breaches of the Health and Safety at Work Act 1974 cannot be used for civil action but breaches of most of the Regulations produced by the Act may give rise to civil actions.

The relationship between the sub-divisions and sources of law

The two sub-divisions of law may use either of the two sources of law. For example, murder is a common law crime. In terms of health and safety, however, criminal law is only based on statute law, whereas civil law may be based on either common law or statute law. This relationship is shown in Figure 1.3. Figure 1.3 Sub-divisions and sources of law.

In summary, criminal law seeks to protect everyone in society whereas civil law seeks to recompense the individual citizen.

European Courts

We continue our courses in health, safety envirement to help you to prepare your NEBOSH.

European Courts

There are two European Courts – the European Court of Justice and the European Court of Human Rights.

The European Court of Justice, based in Luxembourg, is the highest court in the European

Union (EU). It deals primarily with community law and its interpretation. It is normally concerned with breaches of community law by Member States and cases may be brought by other Member States or institutions. Its decisions are binding on all Member States. There is

currently no right of appeal.

The European Court of Human Rights, based in Strasbourg, is not directly related to the EU it covers most of the countries in Europe including the 25 EU member states. As its title suggests, it deals with human rights and fundamental freedoms. With the introduction

Health and safety foundations

of the Human Rights Act 1998 in October 2000, many of the human rights cases are heard in the UK.

The legal system in Scotland

We continue our courses in health, safety envirement to help you to prepare your NEBOSH.

The legal system in Scotland

Scotland has both criminal and civil courts but prosecutions are initiated by the procurator fiscal rather than the Health and Safety Executive. The lowest criminal court is called the District Court and deals with minor offences.

The Sheriff Court has a similar role to that of the Magistrates Court (for criminal cases) and the County Court (for civil cases), although it can deal with more serious cases involving a sheriff and jury.

The High Court of Judiciary, in which a judge and jury sit, has a similar role to the Crown Court and appeals are made to the Court of Criminal Appeal. The Outer House of the Court of Session deals with civil cases in a similar way to the English High Court. The Inner house of the Court of Session is the Appeal Court for civil cases.

For both appeal courts, the House of Lords is the final court of appeal.

There are Industrial Tribunals in Scotland with the same role as those in England.

The legal system in England and Wales in health, safety envirement

We continue our courses in health, safety envirement to help you to prepare your NEBOSH.

The legal system in England and Wales

The description which follows applies to England and Wales (and, with a few minor differences to Northern Ireland). Only the court functions concerning health and safety are mentioned. Figure below  shows the court hierarchy in schematic form.

Criminal law

Magistrates Courts Most criminal cases begin and end in the Magistrates Courts. Health and safety cases are brought before the court by enforcement officers (Health and Safety Executive or Local Authority Environmental Health Officers) and they are tried by a bench of three lay magistrates (known as Justices of the Peace) or a single district judge. The lay magistrates are members of the public, usually with little previous experience of the law, whereas a district judge is legally qualified.

Introduction to Health and Safety in Construction

The Magistrates Court has limited powers with a maximum fine of £5000 (for employees) to £20 000 for employers or for those who ignore prohibition notices. Magistrates are also able to imprison for up to six months for breaches of enforcement notices. The vast majority of

health and safety criminal cases are dealt with in the Magistrates Court.

Crown Court The Crown Court hears the more serious cases, which are passed to them from the Magistrates Court – normally because the sentences available to the magistrates are felt to be too lenient. Cases are heard by a judge and jury, although some cases are heard by a judge alone. The penalties available to the Crown Court are an unlimited fine and up to two years imprisonment for breaches of enforcement notices. The Crown Court also hears appeals from the Magistrates Court.

Appeals from the Crown Court are made to the Court of Appeal (Criminal Division) who may then give leave to appeal to the most senior court in the country – the House of Lords. The most senior judge at the Court of Appeal is the Lord Chief Justice.

Civil law

County Court

The lowest court in civil law is the County Court which only deals with minor cases (for compensation claims ofup to £50 000 if the High Court agrees). Cases are normally heard by a judge sitting alone. For personal injury claims of less than £5000, a small claims court is

also available.

High Court

Most health and safety civil cases are heard in the High Court (Queen’s Bench Division) before a judge only. It deals with compensation claims in excess of £50 000 and acts as an appeal court for the County Court. Appeals from the High Court are made to the Court

of Appeal (Civil Division). The House of Lords receives appeals from the Court of Appeal or, on matters of law interpretation, directly from the High Court. The most senior judge at the Court of Appeal is the Master of the Rolls.

The judges in the House of Lords are called Law Lords and are sometimes called upon to make judgements on points of law, which are then binding on lower courts. Such judgements form the basis of Common Law, which is covered later.

Other courts – Employment Tribunals

These were established in 1964 and primarily deal with employment and conditions of service issues, such as unfair dismissal. However, they also deal with appeals over health and safety enforcement notices, disputes between recognized safety representatives and their employers and cases of unfair dismissal involving health and safety issues. There are usually three members who sit on a Tribunal. These members are appointed and are often not legally qualified. Appeals from the Tribunal may be made to the Employment Appeal Tribunal or, in the case of enforcement notices, to the High Court. Appeals from Tribunals can only deal

with the clarification of points of law.

If you are in chennai, kerala or other place in india , in Dubai , London or manchester you will find Nebosh courses without prices just to help you in your NEBOSH diploma , Nebosh IGC , NEBOSH construction exams 

if you need any question or other courses let us know by drop your comment below.

The legal framework for health and safety

We continue our courses in health, safety envirement to help you to prepare your NEBOSH.

The legal framework for health and safety

Sub-divisions of law there are two sub-divisions of the law that apply to health and safety issues: criminal law and civil law.

Criminal law

Criminal law consists of rules of behaviour laid down by the government or the state and, normally, enacted by Parliament through Acts of Parliament. These rules or Acts are imposed on the people for the protection of the people. Criminal law is enforced by several different Government Agencies who may prosecute individuals for contravening criminal laws. It is important to note that, except for very rare cases, only these Agencies are able to decide whether to prosecute an individual or not.

An individual who breaks criminal law is deemed to have committed an offence or crime and, if he is prosecuted, the court will determine whether he is guilty or not. If he is found guilty, the court could sentence him to a fine or imprisonment. Due to this possible loss of liberty, the level of proof required by a criminal court is very high and is known as proof ‘beyond reasonable doubt’, which is as near certainty as possible. While the prime object of a criminal court is the allocation of punishment, the court can award compensation to the victim or injured party. One example of criminal law is the Road Traffic Acts which are enforced by the police.

However, the police are not the only criminal law enforcement agency. The Health and Safety at Work Act is another example of criminal law and this is enforced either by the Health and Safety Executive or Local Authority Environmental Health Officers. Other

agencies which enforce criminal law include the Fire Authority, the Environment Agency, Trading Standards and Customs and Excise.

There is one important difference between procedures for criminal cases in general and criminal cases involving health and safety. The prosecution in a criminal case has to prove the guilt of the accused beyond reasonable doubt. While this obligation is not totally removed in health and safety cases, section 40 of the Health and Safety at Work Act 1974 transferred, where there is a duty to do something ‘so far as is reasonably practicable’ or ‘so far as is practicable’ or ‘use the best practicable means’, the onus of proof to the accused to show that there was no better way to discharge his duty under the Act. However, when this burden of proof is placed on the accused, they need only satisfy the court on the balance of probabilities that what they are trying to prove has been done.

Health and safety foundations

Civil law

Civil law concerns disputes between individuals or individuals and companies. An individual sues another individual or company to address a civil wrong or tort (or delict in Scotland). The individual who brings the complaint to court is known as the plaintiff (pursuer in Scotland) and the individual or company who is being sued is known as the defendant (defender in Scotland).

The civil court is concerned with liability and the extent of that liability rather than guilt or non-guilt. Therefore, the level of proof required is based on the ‘balance of probability’, which is a lower level of certainty than that of ‘beyond reasonable doubt’ required by the

Criminal court. If a defendant is found to be liable, the court would normally order him to pay compensation and possibly costs to the plaintiff. However, the lower the balance of probability, the lower the level of compensation awarded. In extreme cases, where the balance of probability is just over 50%, the plaintiff may ‘win’ his case but lose financially because costs may not be awarded and the level of compensation low. The level of compensation may also be reduced through the defence of contributory negligence, which is discussed later under ‘Common Torts and Duties’. For cases involving health and safety, civil disputes

usually follow accidents or illnesses and concern negligence or a breach of statutory duty. The vast majority of cases are settled ‘out of court’. While actions are often between individuals, where the defendant is an employee who was acting in the course of his employment during the alleged incident, the defence of the action is transferred

to his employer – this is known as vicarious liability. The civil action then becomes one between the individual and an employer.

If you are in chennai, kerala or other place in india , in Dubai , London or manchester you will find Nebosh courses without prices just to help you in your NEBOSH diploma , Nebosh IGC , NEBOSH construction exams 

if you need any question or other courses let us know by drop your comment below.