ALARM SCOTLAND

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ALARM SCOTLAND Legal Issues Paul Brown,
Partner pbrown_at_biggartbaillie.co.uk 0141 228
8129 Elena Fry, Partner efry_at_biggartbaillie.co.uk
0141 228 8140
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• Sickness Absence
• Personal Injury
• Disability Discrimination

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PERSONAL INJURY

• Walker
• First Bite
• Reasonable Care

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SUTHERLAND v HATTON

• No inherent stress
• Confidential counselling
• Each case on own facts

BARBER v SOMERSET
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HARTMAN 2004

• Occupational Health Knowledge
• Counselling service not liability
• Occupational health counselling
• Comply with duty of care

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INTEL CORPORATION

• Provision of counselling not sufficient
• Facts of case
• Not reduce workload

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PROTECTION FROM HARASSMENT

• Vicarious liability
• Marjowski
• Strict liability
• Green v DB Services

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ALARM SCOTLAND Legal Issues Corporate
Homicide Elena Fry, Partner efry_at_biggartbaillie.co
.uk 0141 228 8140
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CORPORATE HOMICIDE

• Corporate Manslaughter and Corporate Homicide
  Bill

• To be become law October 2007?

• Why do we need this new offence?

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CORPORATE HOMICIDE

• Public/political perception of corporate killing

• Lack of accountability

• Difficulty in prosecuting for manslaughter and
  culpable homicide controlling mind

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The Offence

• Section 1-(1) an organisation to which this
  section applies is guilty of an offence if the
  way in which its activities are managed or
  organised
• (a) causes a persons death, and
• (b) amounts to a gross breach of a relevant duty
  of care owed by the organisation to the deceased

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PENALTIES

• Unlimited fine

• No imprisonment!

• Remedial orders

• Publicity order

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EXEMPTIONS

• Response to emergency circumstances by rescue
  authorities and NHS

• Military activities and associated training

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CORPORATE HOMICIDE
Local Authority Exemptions

• Decisions on matters of public policy

• Things done in exercise of an exclusively
  public function (unless it falls within Section
  2 (1) (a) or (b))

• Inspections carried out in the exercise of a
  statutory function (unless it falls within
  Section 2 (1) (a) or (b))

• Child Protection Functions (Children (Scotland)
  Act 1995)

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CORPORATE HOMICIDE
Local Authority - Peculiarities

• Children / school trips

• Road safety (fleets, school buses?)

• Food safety

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CORPORATE HOMICIDE
Jurisdiction

• Deaths within the UK

• UK Territorial Waters

• On a UK registered ship

• British controlled hovercraft

• Registered off-shore installation in terms of
  Petroleum Act 1998

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CORPORATE HOMICIDE
Any Questions?
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ALARM SCOTLAND Paul Brown, Partner pbrown_at_biggart
baillie.co.uk 0141 228 8129 Elena Fry,
Partner efry_at_biggartbaillie.co.uk 0141 228 8140
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GENERAL UPDATE

• Freedom of Information (Scotland) Act 2002

• Voluntary Pre-Action Protocol in personal
  injury cases

• Personal Injury Pilot Scheme Glasgow Sheriff
  Court

• 2 year Civil Justice Review commencing 2 April
  2007

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GENERAL UPDATE
Recovery of Documents Pre-litigation

• Pre-Action Protocol

• What should be produced?

• In contemplation of litigation

• FOISA

• Is there a claim in the background?

• Do you know what information has been
  produced?

• Court orders?

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GENERAL UPDATE
Pre-Action Protocol

• Started 1 January 2006

• Directed towards low value/simple cases but can
  apply to any claim

• Likely to be extended to

• disease claims

• medical negligence

• professional negligence claims

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GENERAL UPDATE

• Court Decisions
• David Morrison v BBC IHCOS 16 January 2007
• Pursuers expenses restricted for litigating
  too early
• Intel Incorporation UK Limited v Daw English
  COA 7 February 2007
• 2005/2006 10.5million working days lost due to
  stress, depression or anxiety
• moved the bar from Hatton
• If injury foreseeable, employer must take
  action
• Do not rely on counselling service
• Robb v Salamis HOL - 13 December 2006
• Regulations 4 and 20 of PUWER, suitability and
  stabilising/clamping work equipment
• Emphasises difficulty in defending accidents at
  work

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GENERAL UPDATE

• Data Capture/Court Awareness
• Day 1 accident
• 3 years later court action
• How do factual witnesses remember?

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GENERAL UPDATE
Data Capture/Court Awareness
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GENERAL UPDATE

• Data Capture/Court Awareness
• How do you solve the problem?
• Review accident reports/investigation reports
• Fill in the blanks!
• Keep documentation
• Training to hammer the message home?

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ALARM SCOTLAND Paul Brown, Partner pbrown_at_biggart
baillie.co.uk 0141 228 8129 Elena Fry,
Partner efry_at_biggartbaillie.co.uk 0141 228 8140
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