NEBOSH National General Certificate

1. NEBOSH National General Certificate Unit 1: Session 1 • Scope of the health and safety problem • Moral, economic and legal bases for good standards of health and safety • Sub-divisions and sources of law • Civil liability

2. The occupational health and safety problem • Total cost to UK society estimated to be between 14.5 and 18.1 billion/year (2.1% -2.6% GDP) • Loss to employers estimated to be 3.5 - 7.3 billion pounds/year (4% - 8% of gross company trading profits)

3. Injury and Ill-Health Information from RIDDOR indicates that each year: • approximately 250 workers are killed • there are approximately 27 500 major injuries • there are approximately 130 000 over 3 day injuries (believed to be as much as 50% underreported) A major government survey in 1995 showed that 2.25 million people were suffering ill health caused, or made worse, by work. The most common were: • musculoskeletal disorders 1.2 million • stress related 0.5 million • lower respiratory disease 202 000 • hearing problems 170 000

4. Arguments for good management of health and safety • Moral: ethical and responsible behaviour • Financial: the costs of injuries and ill-health • Legal: criminal and civil liability

5. Costs of injuries and ill-health • Direct costs: directly related to accident (e.g. personal injury claims, fines, plant damage) • Indirect: disruption to business, damage to reputation, investigation resources Note: some of these costs may be insured

9. Law Rules of human conduct, imposed upon and enforced among the members of a given state

10. Civil Law Regulates relationships between legal persons (individuals and corporations) Proceedings started by one of parties - may settle at any time Court may consider disputes arising out of property rights, employment, family, etc Court may compensate for wrongs Criminal Law Regulates conduct considered by state to be prejudicial to community Proceedings instituted by officers of crown Court decides on guilt or innocence Principal object is to punish the guilty Sub-divisions of Law

11. Civil Law • Law concerning private and civil affairs without direct involvement of the state • Relevant law may be a mixture of common law and statute law • Breaches usually remedied by compensation • Costs and damages normally covered by insurance Employers’ Liability (Compulsory Insurance) Act 1969 • Burden of proof: on a balance of probabilities

12. Criminal Law • Addresses public and moral wrong doing and made by parliament: written law of the land • Crime is a wrong doing which directly and seriously threatens the well being and security of society and which cannot be left to be redressed by compensation of an injured party • No absolute definition and may change over time, eg drugs • Generally anyone may begin a criminal prosecution but not health and safety offences - change is being considered • Prescribes punishment: eg, fines, imprisonment • Burden of proof: beyond reasonable doubt

13. Sources of Law: Common Law Evolution of legal principles over time by decisions of courts and judges - system of rules or precedents which bind future similar cases Some common law offences are crimes, (e.g. murder, criminal libel)

14. Sources of Law: Statute Law • Addresses public and moral wrong doing and made by parliament: written law of the land • Crime is a wrong doing which directly and seriously threatens the well being and security of society and which cannot be left to be redressed by compensation of an injured party • No absolute definition and may change over time, eg drugs • Supreme over all other sources of law • Prescribes punishment: eg, fines, imprisonment

15. European Dimension • UK bound by by EU legislative procedures on joining (then EEC) in 1972 • Veto by member states on proposed legislation changed to qualified majority voting on adoption of Single European Act 1986 • Significant progress made since SEA on new health and safety legislation

16. Single European Act 1986 • Article 100A: safety standards of plant and equipment (barriers to trade) - Directives implemented by Dept of Trade and Industry • Article 118A: minimum standards of health and safety in employment - Directives implemented by HSC/HSE

17. EU Law • Regulations: similar to statute law and binding on member states without further action (e.g. tachograph requirements) • Directives: prescribe a result to be achieved by a set date leaving member states to transpose into national law (e.g. ‘The Six Pack’)

18. The European Courts • European Court of Human Rights - interprets European Convention for Protection of Human Rights and Freedoms • European Court of Justice - gives rulings on interpretation of EU law at request of a member state or an individual

19. Common Law: Negligence • Negligence as a tort: a breach of a legal duty to take care that results in undesired damage by the defendant to the claimant (plaintiff ) • Three essential elements of proof on claimant: 1. Existence of a duty on defendant 2. A breach of the duty 3. Damage/injury

20. Duty of Care • Donoghue v Stevenson [1932] - established duty to take reasonable care to avoid acts or omissions which on test of reasonable foreseeability would be likely to injure a neighbour • neighbour - persons so closely and directly affected by acts that they ought reasonably to be held in mind as being affected when acts or omissions are called into question

21. Duty of Care: Extent • Wilson v Clyde Coal Co & English [1938] Non delegable duty to take care for safety of employees in particular provision of: • safe place of work • safe plant and equipment • safe systems of work • safe and competent fellow employees

22. Vicarious liability • Responsibility for actions of others when committed in course of employment, ie employer is responsible for torts of servants (employees) in course of employment authorised or not • Employer is not generally responsible for torts of an independent contractor except where authorised to commit and/or in respect of ‘extra-hazardous’ operations

23. Breach of Statutory Duty • A common law action based on statute to protect employees - usually linked with a claim in negligence (the double barrelled approach) • Claimant will succeed in an action for negligence if a breach of statute law is shown to have caused the injury • Act or Regulations may prohibit right of action in civil proceedings, eg HSWA 1974 and Management of Health and Safety at Work Regs 1999 - this may change

24. Negligence: Defences • Lack of duty • Lack of negligence: eg, employee ‘on a frolic of his own’ • Voluntary acceptance of the risk: rarely of relevance to health and safety cases • Contributory negligence: rarely a complete defence - compensation may be reduced in proportion to claimant’s fault

25. Civil Law Cases • Action must commence within three years of injury or when injured party becomes aware that injury has been caused by employer • Burden of proof: on a balance of probabilities • Hearings take place in County Court or High Court without a jury • The Woolf reforms (1999): designed to ensure claims are dealt with speedily and justly

26. The Civil Courts • The County Court: hears most civil actions • The High Court: hears complex cases and those where damages expected to be in excess of £50000 • Industrial Tribunals

27. Industrial Tribunals • Bodies established to take decisions in particular areas of law • Main involvement of Industrial Tribunals in health and safety system is to hear appeals against Improvement and Prohibition Notices served by inspectors • Refusal to work: employees protected by Employment Rights Act 1996 where there is serious, imminent and unavoidable danger