The legal framework for health and safety

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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.

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