Health and safety update

From 6 April this year, subject to parliamentary approval, the Reporting of Injuries, Diseases and Dangerous Occurrences Regulations 1995 (RIDDOR) for over three-day injures will change. After parliamentary endorsement, the trigger point for RIDDOR will increase from injuries resulting in incapacitation for more than three days to injuries causing incapacitation over seven days. This does not include the day on which the accident occurred.

Incapacitation is not limited to a worker just being absent from work but also includes being unable to undertake work that they would have reasonably been expected to do as part of their normal duties.

Although injuries causing less than seven days' incapacitation will no longer have to be reported to the HSE, employers must keep a record of all injuries that cause incapacity for more than three days. A record kept in an accident report book will suffice.

These changes were recommended by Lord Young is his report Common Sense, Common Safety. Lord Young considered that an extension to seven days would reduce the cost burden to businesses when dealing with reportable injuries.

Although employers will still be legally obliged to record over three-day injuries, the removal of the reporting requirement for three-day injuries could lead to poor safety practices and poor safety records going unnoticed where there is no public scrutiny or accountability of a company's safety record. The changes to the reporting duties may lead to even lower compliance with reporting requirements, and make it difficult for regulators to spot trends. The Health and Safety Executive (HSE) is going to review the changes in three years' time.

The Association of Personal Injury Lawyers (APIL) has raised interesting points about the changes to the RIDDOR reporting duties. APIL comments that the decision to amend the reporting of injuries from three to seven days is flawed, particularly when coupled with the proposals set out in the HSE 'Consultation for Extending Cost Recovery' (CD235).

The CD235 consultation closed on 14 October 2011.

CD235 sets out the HSE proposal to replace the Health and Safety (Fees) Regulations 2010 by extending the range of activities for which HSE recovers costs.

HSE's proposal is to recover costs from organisations subject to HSE authority from the start of their intervention, where there has been a material breach of health and safety regulations, to the point where their intervention has addressed and corrected any material issues and thereafter ceased.

CD235 indicates that the hourly recovery rate of £133 will be utilised by the HSE in respect of cost. The HSE has provided examples of the likely cost of their intervention. The costs range from no costs where inspection leads to no action, to, where inspection takes place and leads to investigation and enforcement, potentially several thousands of pounds, and, in extreme cases, tens of thousands of pounds.

HSE in its consultation stated that compliance with the three-day reporting duty was 'estimated at around 50 per cent' of injuries being reported. The proposed changes to extend HSE's costs recovery may lead to an even lower RIDDOR reporting rate given that businesses may be concerned about charges they may incur from a HSE intervention. The result may be that the already low reporting rates become even lower.

Personal injury lawyers are concerned that HSE's extension of cost recovery will be at the expense of injured employees whose accidents will not be documented and reported.

Further erosion on the importance of health and safety regulations was fostered by the prime minister. On 5 January, at a PM Direct event in Maidenhead, David Cameron addressed a group of small business leaders. He said that the 'excessive health and safety culture' was 'the albatross around the neck of British businesses'. He went on to comment that he doesn't 'think there's any one single way you can cut back the health and safety monster'.

Cameron is critical of the culture of health and safety in the workplace as a whole. Responding to Cameron's comments, Richard Jones, head of policy and public affairs at the Institution of Occupational Safety and Health, said that 'labelling workplace health and safety as a monster is appalling and unhelpful, as the reason our legislative system exists is to prevent death, injury or illness at work, protecting livelihoods in the process'. A point it appears Cameron is ignorant to.

Reasonable approach

Two recent cases highlight how proper understanding and implementation of health and safety legislation both protects employees and leads to certainty for employers if they correctly follow and utilise relevant regulations.

In Harris v Waitrose Ltd (2011, unreported), the appellant, an employee (Mr Harris), appealed against a decision to dismiss his claim for damages for personal injury against his employer.

Mr Harris had been employed by Waitrose as an assistant warehouseman. He was unloading a cage from a lift when the wheels of the cage struck a lip that had formed between the slightly misaligned lift floor and warehouse floor. As a result he jarred his back.

Mr Harris alleged that there was a breach by Waitrose of regulation 4 of the Provision and Use of Work Equipment Regulations 1998 by failing to ensure that work equipment was so constructed or adapted as to be suitable for the purpose for which it is used or provided. Mr Harris alleged that even if there was only a very small foreseeable risk of injury that would be sufficient to give rise to a breach of regulation 4.

The judge dismissed Mr Harris' appeal, finding that he had deliberately ignored Waitrose's safety procedures that had been prescribed for when the lift was out of alignment. The judge held that the fact that there might be a small risk of harm was not necessarily decisive as to whether or not there was a breach of regulation 4. There may be some circumstances where risk could not be entirely eradicated and employers should then take appropriate measures to minimise the risk.

This case illustrates how, rather than being an 'albatross' around the neck of employers and businesses, the regulations expect employers and businesses to be reasonable in their approach to the safety of their employees and others. Once the employer can demonstrate that they took appropriate and reasonable steps to adhere to the regulations, they are afforded protection by those regulations and should have nothing to fear.

In Hadlow v Peterborough City Council [2011] EWCA Civ 1329, Peterborough City Council (PCC) appealed against a decision awarding Mrs Hadlow, a teacher, damages for personal injury on the basis that the accident was not reasonably foreseeable.

Mrs Hadlow had been working in a secure facility for women operated by PCC. She was due to teach a class of three in a locked classroom. PCC's policy specified that staff members should not be alone with more than two women on account of the women's dangerous behaviour. Mrs Hadlow usually had a teaching assistant who accompanied her when giving the class. The teaching assistant was running late. Mrs Hadlow informed the relevant co-ordinator and requested that a member of staff sit in with her until the teaching assistant arrived, which he agreed.

Two escorts brought the women into the classroom and left. Mrs Hadlow, whose attention was on the women, did not realise that the escorts both left until the door was locked. She was seated and as she noticed she quickly tried to get to the door to ask an escort to stay and she tripped on her chair sustaining injury. PCC submitted that the accident was not reasonably foreseeable.

The judge held that PCC's failure to provide Mrs Hadlow with another staff member was negligent. Mrs Hadlow was following the policy and there was a direct causal connection between her being left alone with the women and her injury. The fact that it was not a conventional causal connection was irrelevant. Although Mrs Hadlow's accident had not happened in the most likely manner, it had arisen as a result of her taking action to remove risk and remedy PCC's breach of duty in leaving her alone.

The known source of danger had been the women, it was not necessary to postulate foreseeability of the particular circumstances of the accident. The risk of physical injury was foreseeable. Mrs Hadlow being injured when left alone with three women against policy could be sufficiently envisaged and was caused by the local authority's breach of duty. The case of Robb v Salamis (M&I) Ltd [2006] UKHL 56 applied and PCC's appeal was dismissed.

Although the outcome of the case may be surprising, the case demonstrates how, had the PCC followed its own procedures to minimise the risk of injury, the accident would not have occurred and PCC would not have had a claim brought against it.

This case highlights why it is necessary to not only put procedures in place, but also adhere to them in order to gain protection from prosecution and protect individuals for preventable injuries.

Painting the wrong picture

The regulations are currently being painted not as instruments vital in protecting individuals from preventable injury but as a mythological monster that needs to be slain. The current rhetoric used by the government in respect of health and safety is instilling fear and mistrust of the very regulations that we should be proud of since they afford protection to all parties.

The Health and Safety Executive's statistics for 2009/10 show that over a ten-year period from 1999/2000 there was a 22 per cent fall in fatal or serious injuries and a 33 per cent reduction in injuries resulting in workers having more than three days off work, and a 30 per cent reduction in work days lost. Rather than eroding the reputation of health and safety, the message that should be conveyed is that there are positive outcomes produced by the maintenance of stringent health and safety legislation. Rather than health and safety being treated as monster, the public and businesses need to be reminded that it is a hero that protects people from injury and death.