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This presentation covers the nine core obligations as an employer, recent court cases, real-life case studies, advice on dealing with HSA investigations and prosecutions, and duties and liabilities as an occupier. It also discusses specific case studies in catering services, accommodation services, and healthcare/counselling services.
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Presentation to Crosscare - Health and Safety Law- Occupier’s Liability A&L Goodbody 11 March 2013
Running Order • Nine core obligations as “Employer” • Recent Court cases • Real life case studies from Crosscare’s main Sectors • Advice on how to deal with HSA investigations and prosecutions • Duties and liabilities as an occupier
Your legal obligations as “Employer” • Safety Statement • Hazard Identification and Risk Assessment • Training • Maintaining a safe workplace - www.hsa.ie • Safety representative
Your legal obligations as “Employer” • Consultation/Employee responsibilities • Physical and mental health risks • Working time • Record keeping • Some practical tips
Recent Health & Safety Caselaw • HSA v Wicklow County Council • HSA is an active prosecutor • DPP v PJ Carey Contractors • Defence for the good and conscientious employer
Recent Health & Safety Caselaw • DPP v SIAC and Ferrovial • Expert evidence indicating exactly what failures are alleged should be before the court • Prosecution cannot simply rely on the fact of a death of a death or injury to obtain a conviction • Warcaba v Industrial Temps, Dublin Airport Authority and Ryanair • Standards set in training should be followed in practice
Catering Services • Slips, trips and falls • Kitchen safety – knives, burns, scalds • Fire Safety • Electrical faults/cooking • Effective fire alarms • Cleaning products
Catering Case Study – Trip Case • Inspection of restaurant identified trip hazards • Improvement Notice served • Follow up inspection 7 months later • Cable trailing across a step • Cluttered storage room • Successful prosecution • Fine of Stg£1,000 • Plus costs of prosecution
Catering Case Study – Slip Case • Kitchen worker suffered a fractured skull and is unlikely to work again • Kitchen floor was very slippery and safety mats were wholly ineffective • Successful prosecution • Stg£36,000 in fines and costs • Improvement Notice served requiring complete replacement of the floor
Catering Case Study – Scald Case • Catering Assistant suffered burns on her back and on her feet • Emptying a deep fat fryer and plastic bucket melted • Investigation found • No safe system of work in place • Poor level of training and supervision • Successful Prosecution • Fine of Stg£16,000 • Costs of Stg£9,500
Accommodation Services • Manual Handling • Ongoing High Court case • Hotel maid claims heavy workload caused injury • Biological hazards and sharps, e.g. syringes • Fire Safety
Healthcare/Counselling Services • Acute situations • Care for vulnerable patients • Key Risks • Assault and verbal abuse • Disorder and abuse from members of the public trying to access services • Physical attack – individuals under the influence of alcohol or drugs, or those with mental illness
Healthcare Case Study • Elderly patient suffered serious injuries after fall from first floor balcony of private room and died 2 days later • The Court found that the hospital: • failed to assess risk of patients falling from balconies • failed to take adequate measures to control this risk • Successful prosecution • Fine of Stg£100,000 • Plus costs of prosecution (almost £30,000)
HSA – Inspections and Investigations • Powers of Inspection • Investigations • Statutory Notices
HSA Prosecutions • How can Health & Safety law really bite? • Criminal Prosecutions • Penalties • Onus of Proof is on the employer • Personal Criminal Liability for Directors
HSA Investigations and Prosecutions Do: • Check HSA inspector’s authorisation • Call your solicitors • Keep a record of documents examined • Consider exercising right to silence
HSA Investigations and Prosecutions Do: • Consider separate legal representation? • Stop the infringement • Be aware that the Gardaí will usually investigate any serious accident also
HSA Investigations and Prosecution Don’ts: • Do not obstruct HSA inspectors • Do not volunteer information or have informal “chats” • Do not hide or destroy documents • Do not sign anything without legal advice
Occupier’s Liability • How does the liability of the owners and occupiers of buildings differ from the general rules on negligence? • This is distinct from the duties of Crosscare as an employer under Health & Safety law.
Types of Third Party Entrants • Visitors • “Recreational Users” • Trespassers • Criminal Entrants
1. Visitors • Who is a visitor? • What duty is owed to a visitor? • How may an occupier exclude or limit this exposure? • Notices • Must be “reasonable in all the circumstances” • Minimum level of duty • How does this affect Crosscare?
2. “Recreational Users” • Who is a “recreational user”? • What duty is owed to a “recreational user”? • How does this differ from the duty owed to a visitor? • What are “recreational activities”? • How does this affect Crosscare?
3. Trespassers • Who is a trespasser? • Is any duty owed to a trespasser? • Deterrent measures • Retributive measures • Why should any duty be owed to trespassers? • How does this differ from the duty owed to a “recreational user”?
3. Trespassers Contd. • Courts show some leniency: • Frequent trespassers • Child trespassers • Definition of “reckless disregard” • Nuisance near roads • Can I use force in the case of trespassers? • How does this affect Crosscare?
4. Criminal Entrants • No need for definition of criminal entrant! • Is any duty owed to criminal entrants? • Why so? • How is this duty to be balanced against the right to self-defence and defence of Crosscare property?
Practical Application To Crosscare Premises • Disgruntled clients • Unauthorised car parkers • How should Crosscare interact with the Gardaí? • How should Crosscare deal with the press?