NEBOSH National General Certificate

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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

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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)

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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

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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

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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

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Law

• Rules of human conduct, imposed upon and
  enforced among the members of a given state

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Sub-divisions of Law

• 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

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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

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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

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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)

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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

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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

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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

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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)

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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

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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

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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

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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

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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

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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

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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 claimants fault

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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

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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

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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