IOSH EDINBURGH BRANCH
Minutes of 175th Edinburgh Branch Meeting
Craighouse Campus, Napier University, Edinburgh – Thursday 12 October 2006 - 130pm
Sederunt: M Bancroft S Heesom JR Brownlee A Finnie S Witnen J Burt P Graham I Alexander J G Turner W Baird R Lovering D Ross H McCrea D Miller R Hunter J Fenton V Stewart A Bell P Gallacher R Weir
A Curran A Reid A Milne B Gilbert T Graveson D Richardson S Scott C McGlade M Downer L Young M Johnston H Struthers N Goveia C Pendler R Bradford G MacGregor A Diment R Innes M Galloway S McCairney A Dick L Crichton P Brown B Anderson RSN Mambo C Wilmott S Rayment M Gorham J Hooker M Grimmer B Bertram R Edward D McGlade M Hancock P Murray D Cawkwell L Cameron S Hunter D Penman J Adamson K Wilson
• Accuracy: Proposer - Allan Dick; Seconder – Ross Innes.
Details given of the following all of which were also on the website:
4.1 Public Services: Marion Johnstone: reported on a successful networking meeting in Huddersfield with a guest speaker. The elected members’ booklet and training package awaited the revised HSE guidance on Directors’ responsibilities for health and safety which would look beyond the private sector organization.
4.2 Construction: Allan Dick reported he had a new email address and members should now contact him at allan@sounessandboyne.co.uk on construction issues.
• Liz Young reminded members of the demonstration of massage and aromatherapy tha took place at the AGM two years ago and that the tutors were looking for placements for their students. Christine.donnelly@napier.ac.uk
Laura Cameron
of McGrigors – Case Law Update
Derek Cawkwell introduced the speaker for the afternoon to the assembled member by making the comment by indicating that he felt somewhat redundant, as Laura had the distinction of return to speak to the group\not just once but this was in fact her third visit. He then reminded the members that Laura was a litigation Partner with McGrigors specializing in Health & Safety issues and she was a founding member of the Health & Safety Lawyers Association.
Laura then indicated that she was delighted to be back to address the members of Edinburgh Branch of IOSH as she enjoyed speaking to this audience despite them being perhaps the “hungriest” group for information whilst being so knowledgeable – this being in total contrast to the often “switched off” audience found amongst the Senior Managers she was often called to address.
Laura then indicated that her intention for the afternoon’s presentation was to cover specifically the following recent cases, which are so recnt they have not made it into the Law Books yet –
1. R v Barrow Borough Council and Gillian Beckingham
Background
Although this was a case brought under English Law heard at Preston Crown Court it is still pertinent to us here in Scotland for the precedent set.
Both the Council and Mrs Beckingham were prosecuted under a heading of Corporate Manslaughter and failure to comply with the Health & Safety at Work Act following an outbreak of legionnaire’s disease in August 2002 which caused the death of 7 people (6 women & 1 man) and made a further 180 become ill. Initial fears were that up to 150 may die as in the order of 500 people were treated for respiratory problems from possibly breathing in contaminated air.
Allegations
The HSE investigation found –
· An air conditioning unit was the source was the source of the outbreak and the air conditioning unit was at an Arts Centre under the control of the local Council.
· The Council had shown a failure to test and add appropriate chemicals to the system to prevent legionnaire’s disease.
· Mrs Beckingham who was the Council Architect responsible for the Arts Centre had cancelled the original maintenance contract and had not reinstated it and as a consequence bacteria had been sprayed into the air and into a passageway between buildings and on an alleyway leading to a bus stop. The bacteria had been so virulent that one woman had contracted the disease inside her own house which was on the passageway.
· Mrs Beckingham admitted that she had cancelled the original contract and had sorted out a new contract - however she had still missed essential water treatment tests despite the contractor reminding her of the need.
· The new contractor charged with maintaining the air conditioning units described the plant as the worst they had ever seen
· 3 months before the outbreak steam was reported pouring from the cooling towers
· A quote for corrective action was obtained by Mrs Beckingham but it was not followed up
Defence for Gillian Beckingham
· She stated that she did not omit water treatment tests
· She also stated that she had received no health and safety training;
· She believed that her job mainly concerned the design of local housing projects and as such she should not be held responsible for health and safety issues related to the arts centre.
History of proceedings
· February 2003 at Preston Crown Court the original charges were laid against the Council and against Gillian Beckingham as an individual
· March 2005, Barrow Borough Council pled guilty to failings under the Health & Safety at Work Act but not guilty of corporate manslaughter. The Judge directed the Jury to find the Council not guilty of Corporate Manslaughter.
· In April 2005 the Jury were dismissed as they failed to reach a verdict relating to Mrs Beckingham
· 11 July 2006 the re-trial commenced for the case against Mrs Beckingham and on 31 July 2006 the verdict was announced.
Penalties
· Barrow Borough Council fined £125,000 plus £90,000 of costs (NB: Costs are not awarded under Scottish Law cases)
· Gillian Beckingham was acquitted on the Manslaughter case but was fined £15,000 for being found guilty on her H&S failings
· The Judge adding that if she had been “a lady of great wealth” it would have been much more, but indicated that due to her position in the Council Organisation she did have a responsibility for the safety of members of the public.
· During the trial there was a need to have the Police removed from the courthouse as they were cat-calling at some of the evidence as it was presented.
Conclusions to R v Barrow Borough Council and Gillian Beckingham
At the end of the case – Mrs Beckingham said she was glad it was all over, whilst the HSE issued the following statement:
“You should check your management arrangements and your control measures regularly and you should oversee the work that contractors do on your behalf. There is no room for assumptions that systems are working as they should and no room for ignoring personal roles and responsibilities at any level of management”.
2. R v HTM Limited
Background
The details have been gained from a case in May 2006, but this was just a preliminary ruling where the full trial is to follow at a later date.
Due to the case being heard in England where there is a requirement for full disclosure at the preliminary hearing (unlike here in Scotland where there is no requirement for full disclosure) the defence were indicating they would be challenging foreseeability in defining reasonably practicable, in that 2 employees injured during their course of employment and whilst training and instructions had been provided their actions were unforeseeable and could not have been imagined.
Appropriate legislation
· Section 2 (1): HSWA 1974 – Duty to provide health & safety so far as is reasonably practicable
· Section 40: HSWA 1974 – Duty placed on the accused to prove they had taken reasonably practicable precautions including that which is foreseeable.
o The Scottish case of Lockhart –v- Kevin Oliphant – which was very pertinent to the speaker as she was involved with the case as a Trainee Solicitor – where contractors had tendered to install lamp-posts utilising supplied plans showing the services (gas, electric, water, telephone).
o On the day of the accident the lamp-posts were to be lifted from being alongside pre-dug holes by use of an hydraulic tractor driven by the father, whilst the son guided it into the hole. However one as one was lifted it touched an overhead exposed cable.
o The defence stated it had done everything reasonably practicable in providing the plans etc and they were not guilty as the plans of the services did not show the overhead cables and initially they were found not guilty, but on appeal to the High Court they were found guilty as the Judge stated the overhead cables were available for all to see by driving down the road such that it was a foreseeable risk.
· Regulation 21: Management of Health and Safety at Work Regulations 1999 – Can’t rely on the defence of it being the fault of the employee
Argument for HTM Limited
· Evidence of foreseeability was not irrelevant for a reasonably practicable defence
· Regulation 21 did not preclude the defendant company from relying on an act or default of their employees and this was shown by this being upheld in the first place by a judge however this was appealed by the Crown
Appeal
· The Appeal was dismissed.
· The phrase “reasonably practicable” qualified the word “ensure” in S2 of HSWA 1974;
· Evidence of likelihood of the incident could be adduced;
· Leave to Appeal to the House of Lords refused
· The actual Trial is however still to be heard
3. HMA v SP Power Systems
Background
· Mr Ronald an employee of SP Power Systems was killed on 16th December 2003 whilst checking high voltage power lines from a trolley suspended from the overhead cables which had “earth drains” fitted to them.
· All of the trolley occupants had been wearing safety harnesses, so when the trolley became entangled with an earth drain cable and caused one of the occupants to fall out of they were easily pulled back into the trolley.
· On returning to the trolley the comment was made “Don’t touch anything” as there was a risk of electrocution, but the deceased died in attempting to re-affix the dislodged earth drain.
The Court Case
· The case was tried at Airdrie Sheriff’s Court on 30th August 2006 when a Guilty plea was lodged by S P Power Systems under section 2 of the Health & Safety at Work Act in that they had –
o Not followed defined earthing procedures adequately
o The Supervisor failed to properly instruct Foreman and he failed to stop work;
· The Company were found guilty of failure to meet the duties under S2 of HSWA and were fined £400,000. The HSE stated the Company had “excellent” systems, but unfortunately they were not being put into action.
o The speaker illustrated this with reference to the Risk Assessments found in all to many Companies, where they were “beautifully prepared and presented” but the detail did not get down to the shop floor where it is supposed to be put into practice
· Two employees (The foreman and the Supervisor) were found guilty under S7 of HSWA and were fined £1,600 and admonished by the Court.
· The employees dismissed – It is believed that the Organisation were looking to make an example of those employees who were not following safety standards.
Corporate Manslaughter – The legislation has been put back to Westminster for a common approach across England Scotland and Wales, despite the current legislation being capable fo covering all of the issues but it is not utilized to the full.
Reasonably Practicable – this is perhaps one to watch.
Big penalties will still be handed down despite having the systems in place if it is not filtered down to the “coal face”.
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Max Bancroft, MRSC, CMIOSH Branch Secretary |
Richard Lovering, CFIOSH |