Unit A 3 Questions Ollie Flashcards
July 15/July 09/July 07 *****
A factory site includes a two storey warehouse
The security organisation, whose employees also regularly enter the warehouse, has reported signs of unlawful entry.
(a) Outline the relevant duties under occupiers’ liability legislation that may apply to this situation. (8)
b) Explain which sections of HSWA may have been breached. (6)
(c) Explain which of the MHSW regulations may have been contravened. (6)
(a) Under the Occupiers Liability Act 1984, The occupiers / controllers of premises have a duty to take such care as is reasonable in the circumstances to ensure the safety of employees, visitors, contractors and even trespassers by the use of signage and barriers etc. Exceptions include where the person can be shown to have accepted the level of risk. (Volenti non fit injuria)
(b) The employer has breached section 2.1 and 2.2 (duty to employees) to provide a safe place of work, access and egress and 3.1 (duty to those not in his employment (UNDERTAKING)). Directors of the company may be guilty of neglect under Section 36 & 37. The controller of the building has breached Section 4.2 by not ensuring the safety of the building.
(c) The employer has breached Reg 3 by NOT having carried out a suitable and sufficient risk assessment and Reg 5 by not having proper arrangements to cover the safety of the warehouse area. The employer has also breached Reg 10 by not providing employees with comprehensible and relevant information on the risks and protective measures.
Jan18-July 13 *******
A castle which is open to the public as a visitor attraction is surrounded by a dry moat. Access to the castle ticket office is gained via a bridge across the moat. While crossing the bridge a visitor to the castle tripped over a low parapet wall and fell a distance of 5 metres into the moat, sustaining serious injuries. The organisation that operates the castle was warned 2 years previously of the possibility of a fall from the bridge yet failed to take any action to prevent such incidents.
(a) With reference to possible breaches of the Health and Safety at Work Act 1974 and the Management of Health and Safety at Work Regulations 1999, outline the criminal law implications for the organisation and its managers. Your answer should refer to the specific requirements that may have been breached, the likely venue for the prosecution and the possible penalties should the organisation and / or managers be found guilty. (12)
(b) With reference to relevant civil legislation, outline the nature of the duty owed by the occupying organisation to their lawful visitors. (4)
(c) In its defence the organisation attempts to rely on a warning notice posted in the ticket office hall that reads, “The management accepts no liability for loss or injury howsoever caused”.
Explain why the organisation will be unable to use this statement in its defence. (4)
a) Possible breaches of HSWA S2? S3, S4?? S36,
HSWA S3(1)for failing to conduct their UNDERTAKING in such a way as to ensure, SFAIRP, that persons NOT in their employment were not exposed to risks to their H&S
HSWA 36, Other persons fault
MHSW R3(1)(a) for failing to make a suitable and sufficient assessment of the risks to the H&S of their employees arising from the work activity
MHSW R3(1)(b) for failing to make a suitable and sufficient assessment of the risks to the H&S of persons not in their employment arising from the work activity
MHSW R4 for failing to implement preventive and protective measures in accordance with the General Principles of Prevention set out in Schedule 1 to MHSWR
MHSW R5(1) for failing to make arrangements for the effective planning, organisation, control, monitoring and review of the preventive and protective measures
MHSWR r3 failure to assess risks to persons not in their employment r4, etc?
Magistrates Court Unlimited fines & 6months imprisonment
Crown Court Unlimited fines& 2 years imprisonment
(b) Occupier’s Liability Act 57 imposes a duty of care on the occupier in relation to lawful visitors. The occupier must “take reasonable care to see that the visitor will be reasonably safe in using the premises for the purposes for which he is invited or permitted by the occupier to be there”.
(c) The reason they cannot rely on this as a defence is because a notice excluding liability is NOT classed as a warning as specified in OLA 57. Under s.2(4) OLA 57 a warning will only serve to discharge the occupier’s duty with respect to the danger if it enables the person to whom the duty is owed to be reasonably safe. The warning must therefore be sufficiently clear about the danger and ways of avoiding the danger must be readily available. A notice saying that you will not be held liable doesn’t
July 14- Jan 11 ****
A manager in a manufacturing business calls out an engineer from their equipment supplier to repair and reset a piece of production equipment. After the repair there are difficulties in resetting the equipment. To help resolve this a manager removes a fixed guard from the equipment to allow easier visibility and quicker adjustment. The engineer employed by the equipment supplier is subsequently injured on a piece of moving machinery that should have been protected by the guard.
(a) Outline possible breaches of the Health and Safety at Work etc Act 1974. Your answer should include the company or individual who may have committed the breaches, the specific legal requirements (including Section numbers) that have been breached and in each case reasons for the possible breach. 16)
(b) The manufacturing business is subsequently prosecuted under Section 3 HSWA and attempts to defend itself by blaming the acts of the manager about which it knew nothing.
Explain, with reasons, whether this defence could be successful.
Make reference to case law where apporpriate. (4)
(a) Possible breaches HSWA (+ explanations in each case):
Manufacturing company - possible breach S2(1); duty to to ensure SFAIRP the H,S &W of their employees - removal of guard is a failure to ensure SFAIRP the safety of employees; possible breach S2(2) (a) - safe plant , SSW; Breach S2(2)(c) - instruction, information; possible breach S3 - in relation to supplier’s employee (engineer); possible breach S4 - persons in control of premises
Equipment supplier - possible breach S2(1) in relation to their employee (engineer); possible breach S2(2) (a) - safe plant , SSW; Breach S2(2)(c) - instruction, information (?)
Manufacturing manager - possible breach S7 & S8 Engineer - possible breach S7
Manager - possible breach S36 & S37
b) Case law:
R v British Steel (defence not allowed); R v Nelson etc (defence allowed); MHSWR regulation 21 (defence not allowed); R v HTM (defence may be allowed / duty qualified)
Jan14-Jan-12-July09-Jan08
(a) A machinery accident at work has resulted in a fatality.
(i) Identify the authorities that might be involved in investigating the accident or in initiating and/or conducting criminal prosecutions AND outline the involvement of each authority in these circumstances. (5)
(ii) Following an initial investigation into a fatal accident at work, an enforcing authority inspector wishes to make a further visit to the workplace where the accident occurred so that statements can be taken from witnesses and others, including the Managing Director. Prosecution under the Health and Safety at Work etc Act 1974 is being considered. The Managing Director, who was controlling work at the scene when the accident occurred, has refused permission for the inspector to make a further visit and to take statements. Outline the specific powers of inspectors that are relevant to this issue AND the possible courses of action that the inspector may pursue. (9)
(b) Outline the legal criteria that must be satisfied to obtain a conviction under the Corporate Manslaughter and Corporate Homicide Act 2007 (6)
In England & Wales HSE / LA - decide on whether to prosecute. CPS and the Police will also have an input in certain situations eg in complex legal cases - where manslaughter charges are being considered and / or where there are suspicious circumstances surrounding the fatality. An investigation into the death may also be conducted by the Coroner. Initial criminal proceedings may start with an appearance in the Magistrates Court where the enforcing authority can conduct proceedings (summary trial). However, in the circumstances described the Magistrates Court would be likely to refer the case to the Crown Court for committal proceedings / trial on indictment. It is usual for enforcing authorities to brief a solicitor / barrister to conduct cases in the Crown Court on their behalf - particularly where the prosecution is complex / involves serious charges
[In Scotland the proceedings are similar in many respects but any decision on prosecution is taken by the Procurator Fiscal who conduct proceedings in the Sheriff’ s Court. The police investigation would be referred to the Crown Office and proceedings taken by a senior legal officer in the Crown Office.]
(ii)S20 HSAWA Gives powers of inspectors include: right of entry; to be accompanied by a police officer (if likely to be obstructed by MD); right to be accompanied by relevant person(s) / specialists / experts; access to reasonable facilities; to take witness statements / under caution.
Possible course of action could be based on the above and / or to interview / take witness statements at an alternative venue; call MD into HSE office for interview / statement under caution; prosecution for obstructing an inspector. S33 HSAWA may be used
Comment: see scenario - it is powers in relation to refusal - a general review of powers of inspector is not required
(b) Legal criteria for conviction under the Corporate Manslaughter and Corporate Homicide Act 2007 =
- way in which the defendant’s activities are managed or organised - causes a person’s death - as a result of a gross breach of a relevant duty of care owed to deceased - involving conduct far below standard to be reasonably expected - significant contribution to failure by senior management
July17 & July 11
An employer engages a contractor to design, build and install a passenger lift for use by its employees and customers. Shortly after the lift was commissioned it failed in service injuring a number of customers who were using it at the time. Investigation revealed that the lift had not been properly designed to recognised standards and that the contractor was not competent to design or install such equipment.
(a) Outline the general types of health and safety related information that the employer should have obtained from the contractor (prior to their appointment) to ensure that the contractor was competent to safely design and install the lift. (10)
(b) As a result of the failure of the lift and the injuries caused, both the employer and the contractor were prosecuted. It was decided to prosecute the contractor under Section 6 of the HASAWA 1974.
Explain why this section is RELEVANT to this scenario AND describe the REQUIREMENTS of the Section that would be relevant to the design and installation of the lift. (10)
(a) COMPETANCE – information obtained from pre-selection audit/inspection of contractors; safety method statements/procedures/risk assessments; design-stage risk assessment processes/risk management processes; design quality control processes; H & S policy and management arrangements; other H & S performance measures (e.g. accident rates, inspection reports, EN, audit reports etc); experience in the type of work; reputation/recent client experience/references; individual design personnel/qualifications/experience; qualifications/skills of workers for other installation work; procedure for selecting sub-contractors; membership of relevant professional bodies/quality standards; communication/consultation arrangements; advice from expert third party if needed; standards to be followed in design; insurance cover provided it relates to public or product liability; resources affecting safety.
(b) RELEVENCSE - S6(1) places duties on persons who design, manufacture, (import) or supply articles for use at work; S6(3) places duties on persons who install any article for use at work in premises where it is to be used by persons at work. In this case the contractor is a designer, supplier and installer of a passenger lift (which is an article for use at work).
REQUIREMENTS
•Ensure SFAIRP that the article is designed to be safe and without risks to health at all times when it is being set up, used, cleaned or maintained by a person at work
•Carry out / arrange for any testing and examination required to meet the above duty
•Ensure that persons supplied with the article of work equipment are provided with adequate information re its use etc (as above), dismantling or disposal
•Provide, SFAIRP, revised / updated information as necessary (e.g. serious risk arising)
•Carry out / arrange for any research necessary to eliminate / minimise risk to health or safety SFAIRP
•Ensure SFAIRP that nothing in the way the work equipment is installed makes it unsafe or a risk to health during use (etc)
Jan 15-July 08- Jan06
Company A engaged the services of Contractor B to undertake repair work inside a storage tank. The production supervisor of Company A issued a permit-to-work for Contractor B’s employees to enter the tank to undertake the work. The work involved the use of flammable solvents and Contractor B’s employee was badly burned when some of the solvent was spilled from an open bucket and was ignited by an ordinary hand-lamp that had been provided for their use by Company A. With reference to possible breaches of HSWA 74 and the MHSWR 99, in this scenario, outline the company or individuals who may have committed breaches AND the specific legal requirements that may have been breached. Your answer should include relevant case law and an explanation of its relevance. (20)
Company A - Possible breaches of HSWA S3(1) regarding - a failure to conduct their (undertaking) to ensure SFAIRP the H&S of persons NOT in their employment ; S4 as occupier and controller of non-domestic premises - failure to adequately control risks; S2 in relation to the risk to its own employees, s2(1), s2(2)(c); Under MHSWR Reg 3 risk assessment; Reg 5 effective safety management arrangements; Reg 11 cooperation and coordination; Reg 12 instructions / information for workers in host employers undertakings.
Contractor B were under HSWA s2(1) and s2(2) (a)-(e) - duties to employees; HSWA S3(1) putting A’s employees at risk; Under MHSWR Reg 3 risk assessment; Reg 5 effective safety management arrangements; Reg 11 cooperation and coordination; Reg 10 Information to employees on hazards/controls; Reg 13 competence and training of employees.
Breaches by individuals in consideration of the duties of employees under HSWA s7 and MHSW Reg
14; with consideration of the permit issuer: HSWA s7, MHSW Reg 14 and HSWA s36.
Relevant case law: R v Associated Octel Co Ltd (1996) 4 All ER 846; R v Swan Hunter Shipbuilders Ltd and Another (1982) 1 All ER 264.
July 16 Jan 10
The case of R v Swan Hunter Shipbuilders and Another [1982] arose from a serious fire during a ship repair at SwanHunter’s shipyard. Swan Hunter was convicted in the Court of Appeal.
(a) Identify the specific provisions of HSWA under which Swan Hunter were prosecuted and in each case outline the reasons why the company was convicted. (6) (b) MHSWR 99 was not in force at the time of this case. Had these regulations been in force identify the requirements of the regulations under which SH could have been prosecuted specifically in connection with the fire incident AND outline reasons in EACH case. Requirements in MHSWR relating to competent H&S assistance and emergency arrangements should be excluded. (8)
(c) MHSWR 99 is supported by an Approved Code of Practice and guidance. In criminal proceedings outline the legal status of:
(i) an ACoP (3) (ii) guidance (3)
(a)Clearly SH had a duty to ensure SFAIRP the H&S of its own employees by the provision of information. The CoA held that if, to ensure a SSW for SH’s own employees, it was necessary to provide the contractors / contractors’ employees with information about any particular dangers within its knowledge, then SH was under a duty to provide such information, SFAIRP. SH also had a duty to those not in its employment. Consequently SH were prosecuted under: HSWA S2(2)(a) for failing to provide a system of work that was, SFAIRP, safe and without risks to health HSWA S2(2)(c) for failing to provide such information as was necessary to ensure, SFAIRP, the H&S at work of their employees HSWA S3(1)for failing to conduct their undertaking in such a way as to ensure, SFAIRP, that persons not in their employment were not exposed to risks to their H&S
(b) Had MHSWR99 been in force SH may have been prosecuted under:
•MHSW R3(1)(a) for failing to make a suitable and sufficient assessment of the risks to the H&S of their employees arising from the work activity
•MHSW R3(1)(b) for failing to make a suitable and sufficient assessment of the risks to the H&S of persons NOT in their employment arising from the work activity
•MHSW R4 for failing to implement preventive and protective measures in accordance with the General Principles of Prevention set out in Schedule 1 to MHSWR
•MHSW R5(1) for failing to make arrangements for the effective planning, organisation, control, monitoring and review of the preventive and protective measures
•MHSW R11(1) (where two or more employers share a workplace whether on a temporary or permanent basis) (a) for failing to co-operate with the other employers concerned to enable them to comply with the relevant statutory provisions; (b) for failing to take all reasonable steps to co-ordinate measures taken by SH with those being taken by other employers; (c) by failing to take all reasonable steps to inform the other employers concerned of the risks to their employees’ H&S
•MHSW R12(1) for failing to ensure that the employer of any employees from an outside undertaking working at SH was provided with information on: (a) the risks to those employees’ H&S arising out of SH’s undertaking; (b) the measures taken by SH under the relevant statutory provisions in relation to those employees
•c) (i) An ACoP is said to have a “quasi-legal” status - it is less authoritative than law but more authoritative than guidance. An ACoP presents an approved means of complying with relevant statutory provisions and evidence of a failure to follow the provisions of an ACoP is admissible in Court as indicating a breach of the relevant statutory provisions. However, failure to follow the provisions of an ACoP is not in itself grounds for a prosecution as long as the duty holder can demonstrate compliance by “other equally effective means”. (ii) Guidance simply sets out good practice and presents one way (among others) of complying with legal duties. Guidance has no legal authority and cannot be presented in the Courts as evidence of non-compliance.
July 16 -Jan 12
The senior managers at your workplace participate in formal annual reviews of health and safety performance as part of the health and safety management system.
Outline the types of information that should form the inputs to this review process. (10)
- Evaluation of compliance with legal and organisational requirements
- Any developments in legal requirements or best practice within the industry
- Communications from enforcing authorities and insurers
- Whether health and safety objectives have been met
- Whether actions from previous reviews have been completed.
- Any Changes in organisation or processes
- Audit, inspection results and implementation
- Output and Effectiveness of consultation and internal communications
- Incident data, recommendations and action plans from investigations
- Absences and sickness records and their analysis
- Complaints from neighbours, customers and the
Jan 20- July-18-July 15- July 09
(a) Outline the legal criteria that must be satisfied to obtain a conviction under the Corporate Manslaughter and Corporate Homicide Act 2007 (CMCHA). (6)
(b) Identify the bodies responsible for investigating and prosecuting offences under CMCHA. (2)
(c) Outline the penalties that may be imposed following conviction under CMCHA. (2)
(a) Conviction if: way in which the defendant’s activities are managed or organised has caused a person’s death; gross breach of a relevant duty of care owed to deceased; conduct far below standard to be reasonably expected; significant contribution to failure by senior management
(b) Police / HSE / LA investigate; prosecution by CPS in E&W & PF in Scotland
(c) Unlimited fine and / or remedial action; also “publicity order” / “name & shame”
July12- July 07
With respect to an Improvement Notice served under Section 21 of The Health and Safety at Work etc Act 1974:
(a) If the party on whom it was served wishes to appeal, identify:
(i) the statutory timescale (1)
(ii) the individual body that would hear a first appeal against the notice (1) (iii) the possible outcomes of the appeal. (2)
(b) If the outcome of the appeal is subject to a further appeal identify the judicial body that will hear the further appeal. (1)
(c) If the requirements of the notice are ignored, outline the penalties which are available on conviction for failing to comply with the notice. (5)
(a) (i) 21 days (ii) Employment Tribunal (iii) ET may: confirm IN; amend IN; extend time period; withdraw IN
(b) Further appeal: Queen’s Bench Division of the High Court (England & Wales) (High Court Justiciary SCO)
(c) Magistrates Court: max £Unlimited fine and / or 6 months; Crown: £unlimited fine and / or 2 years
With respect to an Improvement Notice served under Section 21 of The Health and Safety at Work etc Act 1974:
(a) If the party on whom it was served wishes to appeal, identify:
(i) the statutory timescale (1)
(ii) the individual body that would hear a first appeal against the notice (1) (iii) the possible outcomes of the appeal. (2)
(b) If the outcome of the appeal is subject to a further appeal identify the judicial body that will hear the further appeal. (1)
(c) If the requirements of the notice are ignored, outline the penalties which are available on conviction for failing to comply with the notice. (5)
(a)(i) 21 days (ii) Employment Tribunal (iii) ET may: confirm IN; amend IN; extend time period; withdraw IN
(b) Further appeal: Queen’s Bench Division of the High Court (England & Wales)
(c) Magistrates Court: max £Unlimited fine and / or 12 months; Crown: £unlimited fine and / or 2 years
July10-Jan 08
(a) Describe the statutory duties set down in Section 6 HSWA in so far as they affect substances for use at work. Your answer should contain a description of the duty holders and the duties concerned. (10)
(b) (i) Outline the key legal duties that an employer has towards employees under HSWA and the Sex Discrimination Act 1975 in respect of the use of a substance that may cause harm to an unborn child. A discussion of the practical control measures is not required. (6)
(ii) State the legal action that an employee may take if they feel that they have been subject to unfair sex discrimination. State the outcomes that may result including the routes of appeal. (4)
(a) S6 duties on manufacturers, importers, suppliers: to ensure SFAIRP, that substances are SAWRTH when being used, handled, stored, transported; to carry out necessary tests to ensure the above; to provide those supplied with relevant information on H&S hazards and requirements for safe use, handling, storage, transport, disposal etc (see MSDS); to provide revised information as necessary
(b) (i) HSWA S2(1) general duty to ensure SFAIRP their H,S & W; S2(2) specific duties + details; SDA - employer may not discriminate against / treat unfavourably an employee on grounds of gender unless there is a justifiable reason eg to comply with HSWA or the relevant statutory provisions and there is no RP alternative
(ii) Employee can complain to ET. If complaint upheld may result in compensation / re-instatement; appeal to EAT and Court of Appeal (Civil)
Jan 09-July 06
HSWA presents a number of opportunities for individuals to be prosecuted for breaches of duties under the Act. Assuming that the individuals are employed within a large company, outline the circumstances under which they may be prosecuted for such breaches. (10)
HSWA S7 - employees - failure to take reasonable care of themselves and other s who may be affected by their acts / omissions at work; failure to co-operate with employer
HSWA S8 - any person - interference / misuse of anything provided for a H&S purpose;
HSWA S36 - offence due to act / default of another person - eg supervisor / manager instructs employee to use unguarded machine
HSWA S37 - offence committed with consent / connivance or attributable to neglect of Director, Manager, Secretary etc HSWA
S33(1) - impersonating / obstructing an inspector?
