IOSH
Humber Branch
Legal Update
Brian Pettifer
2 February 2011
Icy Conditions
• Slips and trips account for majority of accidents in the
workplace. In icy conditions the situation gets worse
• HSWA 1974 sections 2(2)(d) and 3 apply
• Workplace Regs 1992 Reg 12 provides duties to staff,
subcontractors and other third parties
• Occupiers Liability Act, 1957 - common duty of care to
visitors to premises to be given safe access to property. Take
reasonable steps to clear ice and snow from access ways.
Responsibility extended to trespassers by Occupier’s
Liability Act, 1984.
Icy Conditions
• Public Liability insurance - covers accidents occurring which
are in breach of the obligation - conditional upon reasonable
steps being taken to mitigate avoidable risks.
• “Winter risk Management” undertaken in professional manner
• Assessments –
 ensure right equipment & materials available
 operators are alerted to monitor the weather and take
appropriate action.
• Large areas (car parks, access roads) serviced by gritting
vehicles. Paths and stairs - manual spreaders and shovels.
• Attention to training and record keeping.
Icy Conditions
• HSE guidance on website (20 October 2010):
 tips on clearing snow and ice
 recommends clearance early in the day
 use of salt or sand and not water
 warns people not to shovel snow so as to block other
people’s paths or drains.
• Refreshingly pragmatic advice:
 should not put off cleaning paths because you’re afraid
someone might get injured
 people walking on snow and ice have responsibility to be
careful themselves
Disciplinary cases
• SHP Article (April 2010) reminds IOSH members that we
are required to comply with the Code of Conduct
 to set high standards for our members with regard to
both ethics and competence
 expected to act with honesty and integrity at all times,
both on and off duty
• Disciplinary committee deals with conduct below the
standards expected and likely to bring IOSH into disrepute.
Committee need to be satisfied an allegation of misconduct
is more likely than not to be true for it to be upheld.
Disciplinary cases
• Two cases:
 Breach of Point 11 of the Code of Practice “Members
shall not improperly use their membership or position
within the organisation of the Institution for commercial
or personal gain or use or attempt to use qualifications,
title and/or designations to which they are not entitled”.
 Allegation that he used a document purportedly
certifying that he was admitted as a Graduate Member of
the Institution where in fact he was an Affiliate Member.
 The Committee viewed this a serious matter and
expelled him.
Disciplinary cases
• Two cases:
 Breach of Point 18 of the Code of Conduct “Members
must act within the law and are required to notify the
Institution if they are convicted of any criminal offence. A
relevant conviction may lead to disciplinary proceedings
against that Member”
 Two allegations of misconduct presented against a
member - Firstly he was convicted of criminal offences
and secondly he did not inform the Institution of these
convictions.
 Allegations were upheld and found as a very serious
matter so he was expelled from membership
Accreditation of consultants
• Young Review confirms the creation of such a scheme,
HSE has issued more details:
 Occupational Safety Consultants Register to go live in
January 2010
 IOSH, CIEH et al supporting HSE to run scheme.
Intention is that scheme to be run by professional
bodies through not-for-profit company with HSE
support.
 Website set up for employers to find local advisors with
experience relevant to their sector
Accreditation of consultants
• Young Review confirms the creation of such a scheme,
HSE has issued more details:
 Membership of the scheme voluntary, open to
chartered members of IOSH, CIEH, REHIS or a fellow
of IIRSM.
 Those on the register will be bound by a code of
conduct to provide only “sensible and proportionate
advice”.
Common Sense Common Safety – Lord Young
• Issued by Lord Young of Graffham – 16 October 2010
• Government intends to adopt the whole report - expect
departmental initiatives and guidelines and parliamentary
legalisation
• 36 recommendations under 12 headings:
• Compensation Culture:
 Simplified claims procedure for personal injury claims
(similar to road traffic accidents under £10,000
recommended)
 Restrict operation of referral agencies, personal injury
lawyers and volume & type of advertising
Common Sense Common Safety – Lord Young
• Compensation Culture:
 Clarification that people not held liable for any
consequence due to well intentioned voluntary acts
• Low Hazard Workplaces:
 Simplification of risk assessments for low hazard
workplaces with HSE placing simpler interactive risk
assessments on its website.
 HSE to create periodic checklists to record such
businesses compliance with regulators.
 Exempting employers from risk assessments for
employers working from home and self- employed people
in low hazard businesses.
Common Sense Common Safety – Lord Young
• Raising Standards:
 Professionalise health and safety consultants with a
qualification requirement that all consultants should be
accredited to professional bodies.
 Web based directory accredited health and safety
consultants established
• Insurance:
 Insurance companies use only qualified consultants who
appear on web based directory
 Should draw up code of practice for health and safety for
businesses in the voluntary sector
Common Sense Common Safety – Lord Young
• Education:
 Simplify process that schools and similar organisations
undertake before taking pupils on trips.
 Shift from risk assessment system to risk-benefit
assessment - possibly review legislation to separate play
and leisure from workplace contexts.
• Local Authorities:
 Officials who ban events on health and safety grounds
should put their reasons in writing.
 Citizens should be able to go for unfair decisions to the
Ombudsman – decision given within 2 weeks.
Common Sense Common Safety – Lord Young
• Health and Safety Legislation:
 Current health and safety regulations consolidated into a
single set of accessible regulations.
 HSE should produce a Code of Practice focused on small
and medium businesses engaged in lower risk activities.
• RIDDOR:
 The period within which a return is required to be sent to
a centralised body should be extended to seven days.
• Working with Larger Companies:
 A consultation undertaken with a view to improving the
system, including the Primary Authority Scheme, with an
enhanced role for the HSE, for larger multi-site retail
businesses.
Common Sense Common Safety – Lord Young
• Combining Food Safety with H&S Inspections:
 Proposed to combine food safety with health and safety
inspectors in local authorities.
 Young would make mandatory local authority participation
in the Food Standards Agency’s Food Hygiene Rating
Scheme (0 to 5 ratings for businesses serving or selling
food to the public)
• Police and Fire Services:
 Police officers and firefighters should not be at risk of
investigation and prosecution under health and safety
legislation when engaged in the course of their duties if
they have put themselves at risk as a result of committing
a heroic act.
Common Sense Common Safety – Lord Young
• Adventure training:
 The Adventure Activities Licensing Authority set up in
1995 should be abolished - licensing replaced by a code
of practice to be monitored by the HSE.
• Annex M:
 Timetable for implementation
• Annex D:
 Health and Safety Hysteria in the Press – false and
exaggerated stories
• Expected by-product is that the atmosphere within which
health and safety advisors carry out their duties and their
reputation as a whole will improve.
Occupier’s Liability – forseeability of trespass
Paul Mann v Northern Electric Distribution Ltd - Court of
Appeal (2010)
• Child aged 15 trespassing at electricity substation whilst
retrieving a ball came into contact with a bus bar carrying
66,000 volts causing him severe burns and subsequent
amputation of a leg. Defendant alleged to be in breach of
Electricity Supply Regulations 1988 requiring substations to
be surrounded by fence or wall at least 2.4 metres high. In
fact wall was over 4 metres high with rotating anti- climbing
device. Claimant managed to overcome these formidable
obstacles with remarkable athleticism and ingenuity.
Occupier’s Liability – forseeability of trespass
Paul Mann v Northern Electric Distribution Ltd - Court of
Appeal (2010)
• Judge at first instance dismissed the claim on basis that it
was not foreseeable that a trespasser would have been so
determined or inventive in gaining access. In consequence it
was not reasonably practicable for the defendant to take
steps to prevent it.
• On appeal the Court of Appeal upheld the decision
Suitability of PPE
Steven Threlfall v Hull City Council – Court of Appeal
(Civil Division) 20th October 2010
• Applicant (T) was a local authority employee - he appealed
against the dismissal of his appeal against a decision that he
had failed to establish a breach of regulation 4 of the
Personal Protective Equipment at Work Regulations 1992
(PPE 1992) by the respondent local authority.
• T was a street scene operative. On 8th May 2006 he
sustained a serious cut to his left hand while clearing debris
from the garden of a council property. He brought an action
alleging that his injury was due to negligence or breach of
statutory duty of the Council in failing to provide him with
suitable protective gloves.
Suitability of PPE
Steven Threlfall v Hull City Council – Court of Appeal
(Civil Division) 20th October 2010
• T’s claim and first appeal failed on a point which arose in
respect of the construction of PPE 1992.
• T’s case was that the general purpose gloves provided by
the Council which he was wearing when picking up one of
the black bags were not ‘cut resistant’ allowing something
sharp within the bag to penetrate the glove cutting a tendon
to one of his fingers.
Suitability of PPE
Steven Threlfall v Hull City Council – Court of Appeal
(Civil Division) 20th October 2010
• Reg 4 (1) PPE 1992 states “every employer shall ensure that
suitable PPE is provided to his employees who may be
exposed to a risk to their health and safety while at work
except where and to the extent that such risk has been
adequately controlled by other means which are equally or
more effective.”
• Reg 6 (1) states: “ Before choosing any PPE which by virtue
of regulation 4 he is required to ensure is provided, an
employer …… shall ensure that an assessment is made to
determine whether the PPE he intends will be provided is
suitable”
Suitability of PPE
Steven Threlfall v Hull City Council – Court of Appeal
(Civil Division) 20th October 2010
• Regs 4 and 6 are linked - both should be used to guide an
employer in the provision of suitable PPE
• Lady Justice Smith in her judgement described the risk
assessment as ‘manifestly defective’. If the risk assessment
had been carried out properly the employer would have
recognised the specific risk for cut injuries and could then
have considered the suitability of the gloves to be provided.
“Effectiveness is at the heart of suitability” said the judge
Suitability of PPE
Steven Threlfall v Hull City Council – Court of Appeal
(Civil Division) 20th October 2010
• The question to be asked is “Does this proposed item of PPE
prevent or adequately control the identified risk of injury?”
• The standard issue gloves which T was given did not
effectively prevent or adequately control the risk. They were
not designed to prevent laceration.
• Practicability was not a defence as the same manufacturer
could have provided suitable gloves.
• T won the appeal.
Any Questions?