Health and Safety Bulletin - Information Update

Small businesses criticised for not controlling their fire risks

New twist may require HSE to explain what is 'reasonably practicable' when prosecuting cases

Rise in work-related deaths brings an end to the recent downward trend

2006/7 saw a 11% rise in work related deaths on the previous years figures. In total, 241 workers lost their lives while at work, the highest number of work-related fatalities since the recent peak of 2001/2 when deaths reached 295.

The construction industry fared particularly badly, with 77 deaths (up from 60 in the previous year).

HSE Chief Executive Geoffrey Podger placed the blame on both employers and employees, saying that "we are seeing a failure to follow established good procedures and practice, rather than the emergence of new risks”.

Small businesses criticised for not controlling their fire risks

A recent survey by Norwich Union reports that one in three businesses with up to 10 employees have not carried out a fire risk assessment, and the level of full compliance with the Fire Safety Order 2005 is even lower.

The research also showed that awareness of the Fire Safety Order, which introduced a new risk-based fire prevention regime, had hardly changed since its introduction last year. Of those businesses questioned, only 62% were aware of the new requirements, compared with 57% in a similar survey last year.

Businesses with over 50 employees are most aware of the new requirements, with 90% claiming that they had completed a fire risk assessment. 74% of mid-sized businesses also claimed that their firms had completed a fire risk assessment.

New twist may require HSE to explain what is 'reasonably practicable' when prosecuting cases

The latest twist in an ongoing Court of Appeal case on the legal meaning of foreseeability and negligent actions of employees, may require the HSE (and also local government enforcers) to define exactly what reasonably practicable steps should have been taken by the defendants in health and safety prosecutions.

The case in question, R v Hatton Traffic Management Ltd. – Court of Appeal 2 June 2006, follows the HSE prosecution of Newcastle firm Hatton Traffic Management (HTM) Ltd.

HTM had provided traffic management services and equipment to contractors carrying out road works. Two of its employees were killed when equipment they were moving came into contact with high voltage overhead cables. HTM were accused of breaching section 2(1) of the Health & Safety at Work Act 1974.

At the original trial at Teesside Crown Court, the company argued that it could not have foreseen what was going to happen, and that the accident was caused by the employees acting contrary to warning signs on the equipment.

HSE had said foreseeability was irrelevant, and that employers are still required to take steps against risks that are unforeseeable, quoting MHSW Reg. 21 that "any act or default of an employee will not afford an employer a defence”. Judge Fox had ruled that foreseeability of employee actions may be relevant, as employers can reasonably expect employees to act responsibly in accordance with their training.

Following the HSE’s appeal against this particular part of the ruling, the Court of Appeal sent the case back to the original Crown Court. Judge Fox then ruled that HSE had not set out in sufficient detail the reasonably practicable steps that the defendant should have taken to prevent the incident, and the court hearing on this has been rescheduled for January 2008.

Concerns have been raised in some quarters that this case may have huge implications for the HSE and for the entire approach to risk management, in that it effectively reverses the burden of proof by requiring the prosecution to set out what reasonably practicable steps a defendant should have taken (rather than the defence). In reality, however, the effect of the decision may be limited as generally the HSE will have sufficient evidence to establish pre-accident failures on the part of Defendants.

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