RAIL SAFETY SUMMIT
2015
The Rail Safety Summit  2015
SEAN ELSON
Partner, Pinsent Masons LLP
The Rail Safety Summit  2015
LEGAL H&S
DEVELOPMENTS
2015
Watch This Space
Sean Elson
Partner
Pinsent Masons LLP
The Rail Safety Summit  2015
FOR TODAY
• Removal of fine limits in magistrates courts
• Sentencing guideline proposals
• Revision of CDM
The Rail Safety Summit  2015
Sentencing
The Rail Safety Summit  2015
developments
SENTENCING DEVELOPMENTS
• Limits on fines in the magistrates’ court ends
• S.85 Legal Aid, Sentencing & Punishment of Offenders Act 2012
• Offences committed post 12 March 2015
• Magistrates’ no longer restricted to £20K for each offence
• Consider what this means:
– Magistrates could imposed multi-million pound fines – how likely is this?
– Will have significant impact on tactics and strategy – will benefits accrue for
large companies in trying to keep less serious cases in the magistrates’ court?
The Rail Safety Summit  2015
SENTENCING – A DEVELOPING THEME
• There is no good news (for dutyholders) in relation to sentencing
developments!
• Now an additional liability to pay increased court costs
• Proposals to introduce sentencing guidelines – if adopted will result
in a game changing level of fines for large and very large companies
The Rail Safety Summit  2015
OVERVIEW
• The Sentencing Council published its consultation on introducing
sentencing guidelines for all health and safety offences and
corporate manslaughter on 13 November 2014
• Consultation ended 18 February 2015 – guidelines likely
• The proposals for fines are far in excess of current levels
• Key issues will be level of culpability and seriousness of risk harmed
The Rail Safety Summit  2015
DEFINING CULPABILITY
• Level of culpability extremely important
The Rail Safety Summit  2015
Very High
Deliberate breach or
flagrant disregard of the
law
High
Fell far short of the
appropriate standard
Medium
Fell short of standard in
a manner that falls
between descriptions in
high and low culpability
Low
Did not fall far short of
appropriate standard
ISSUES RELEVANT TO CULPABILITY
• High
– Failing to put in place measures recognised as standards in the
industry
– Ignoring concerns raised by employees or others
– Failing to make changes after prior incidents
– Allowing breaches to subsist over a long period of time
• Low
– Significant efforts were made to address risk but inadequate on
this occasion
– No prior event or warning indicating a risk
The Rail Safety Summit  2015
WHAT MAY THE PROPOSALS MEAN?
• Fines for large (over £50m turnover)/very large companies could be
substantially higher (NB: Fines in relation to rail related cases have been
relatively high anyway)
• The extent to which processes were in place as opposed to an isolated
lapse may become a litigation battleground
• Establishing whether culpability was “low” will be very important in
setting fines
• Even more important to show existing procedures are in place and are
effective/what do others in the industry do?
• Very large companies may fall outside the ranges in the Guidelines and
“all bets are off”
The Rail Safety Summit  2015
CONSTRUCTION (DESIGN &
MANAGEMENT) REGULATIONS 2015
The Rail Safety Summit  2015
KEY CHANGES
Principal Designer
role introduced
Change in
notification
criteria
Removal of
strict
“competence”
requirements
The Rail Safety Summit  2015
Increased client
responsibility
CDM 2015 new
L Series
Guidance from
HSE
CDM Co-ordinator role
abolished
6 month
transition
period from
CDM 2007
NOTIFYING PROJECTS – SIGNIFICANT CHANGE
• Requirement to “notify” a construction project to the HSE will change
• Criteria
– Work scheduled to last longer than 30 working days and have more than 20
workers working simultaneously at any point in the project; or
– Exceed 500 person days
• But – notification is now an end in itself – it is no longer a trigger for
additional duties such as a construction phase H&S plan or
appointment of a co-ordinator/principal contractor
The Rail Safety Summit  2015
TRIGGERS & NOTIFICATION – CHANGE
OF MINDSET
• A construction phase H&S plan is now required on all construction
projects – no matter how small
• Where there is more than one contractor then a principal designer
and principal contractor must be appointed – in writing
The Rail Safety Summit  2015
MORE THAN ONE CONTRACTOR - THE
CLIENT’S LEGAL DUTIES
• Appoint the principal designer
• Appoint the principal contractor
• Must take reasonable steps to ensure that the principal
designer and principal contractor comply with their duties
• Provide the health & safety file to the person acquiring a structure if
they dispose of their interest
The Rail Safety Summit  2015
CLIENT DUTY TAKEAWAY
• A CDM client must take “reasonable steps” to ensure that PD and
PC comply with their duties (e.g. for the PC - throughout the
construction phase)
• CDM 2007 Regulation 9 – take “reasonable steps” to ensure that the
arrangements made for managing the project….by persons with a
duty…..are suitable to ensure etc.
A wider responsibility – what is the HSE guidance?
The Rail Safety Summit  2015
PRINCIPAL DESIGNER DUTIES: MORE
THAN A CDMC ?
• Must plan, manage and monitor the pre-construction phase and co-ordinate H&S
matters
• Plan work stages and estimate the time required to complete them
• Take account of the general principles of prevention (construction, maintenance &
intended use)
• Ensure other designers comply with their duties
• Ensure co-operation between parties
• Must assist the client in the provision of pre-construction information and provide to
others
• Must prepare the H&S file and ensure that it is reviewed and updated
The Rail Safety Summit  2015
PRINCIPAL DESIGNER – DURATION OF
APPOINTMENT
• Client duty is to appoint a PD with control over the pre-construction
phase
• PD need not remain throughout the life of the construction phase –
though may do so (CDM 2007 - both CDMC and PC at all times
until end of the construction phase)
• HSE draft guidance recognises this
• If appointment ends the H&S file must be passed to PC who then
review & update (Regulation 12(8) & page 36 draft guidance)
The Rail Safety Summit  2015
PRE-CONSTRUCTION PHASE REDEFINED
• A key change
• Pre-construction phase now defined as:
“..any period of time during which design or preparatory work is carried
out for a project and may continue during the construction phase”
• In other words – the PD role could extend up to practical completion
to the extent that changes may be made to the design or use of
materials (this was the HSE intention and is not an unintended
consequence)
The Rail Safety Summit  2015
PD ISSUES
• Who will be competent?
• Not just CDMC with a different hat
• Will clients seek to impose role on PC or designers – consider
contractual terms
• PI cover!
• How will this engage over the coming months?
The Rail Safety Summit  2015
PRACTICAL ISSUES
• Interactions (including PD)
• Appointments and PD on small works
• How will clients respond?
• What will this all look like?
• Construction Phase Plan for all construction works
The Rail Safety Summit  2015
CONCLUSIONS
• Not much change for PC’s managing construction phase
• Intended to enhance the Client role but will the reality reflect this
• The PD role will take some time to shake out
• Additional guidance might bring greater clarity – but does it need to
be an ACoP?
The Rail Safety Summit  2015
RAIL SAFETY SUMMIT
2015
The Rail Safety Summit  2015