UK wellness and safety Torahs have been established over the last 200 old ages. Initial legislative acts associating to specific industries and patterns have over clip been replaced by more general statute law covering more general principals of wellness and safety. Throughout this historical development, the function of the tribunals has been important in clear uping general rules and statements of jurisprudence.
Common jurisprudence, and specifically civil liability has been constructed with the organic structure of instance jurisprudence put together over tonss of old ages. As people ‘s rules and attitudes change over ephemeral clip so does common jurisprudence. The judiciary must make up one’s mind on the philosophy of precedency when doing adjudication. These finding of facts so influence consecutive instances and how determinations are interpreted. One justice ‘s opinion will put a case in point for subsequent, similar instances. Likewise, when a justice is taking into consideration the plus points of a specific instance, they will look to old occasions in comparable state of affairss in order to bench grade, in which to do their opinion ( J Stranks, 1996, p. 1 & A ; 2 ) & A ; ( EDP Health, Safety & A ; Environmental Advisers, 1989 – 2006 ) .
A civil action involves persons. In this instance a claimant sues a suspect in order to acquire an result, which will be of benefit to the claimant. The result of a civil action tends to be in the signifier of a fiscal payout. The instances in a civil action are heard at County Court or High Court and unlike condemnable action the load of cogent evidence is based on the balance of chances. This is a lesser load of cogent evidence than Beyond Reasonable Doubt ( Legal-Explanations. com, 2006 ) . The most common actions that tend to be heard in civil tribunals are accident claims with amendss being awarded to an injured individual, although many accident claims ne’er really do it to tribunal. This is because companies will more frequently than non settle out of tribunal as it is more advantageous both on the “ company ‘s purse strings and their repute ” ( J Stranks, 1996, p. 11 ) .
Initially wellness and safety jurisprudence was developed from the belief that if employers have to pay recompense for hurts sustained in the workplace they would happen this sufficiency of a incentive to guarantee the betterment of wellness and safety did cut down accidents.
Originally wellness and safety statute law was enforced through the usage of condemnable jurisprudence against companies/factories who broke the statute law. Early in the nineteenth Century new industrial procedures and machinery presented new jeopardies and minor statute law was introduced in an effort to turn to some of the safety issues. In 1833 the Factory act was passed, a subdivision of which required four mill inspectors be appointed with powers to look into and prosecute disputes this step fell good abruptly of the committedness needed ( N Selwyn, 2000, p.4. ) .
Over clip the importance on countenances changed, this was due to two issues. First the enforcement of legal wellness and safety restraints on British industry meant mills became less competitory than their foreign opposite numbers. The limited capacity of the judicial system besides meant that tribunals were over laden detaining legal proceedings taking to farther restraints to industry. The 2nd and likely the more important ground for the alteration in prominence of countenances was that the wronged individual could, if he/she had suffered hurts at work, conveying a civil action against their employer for a breach of a statutory responsibility.
The instance of Groves v Lord Wimbourne 1898 was the first clip a successful prosecution was brought against an employer for breach of statutory responsibility which in this instance related to unfenced machinery that resulted in the workers fingers prolonging hurts. The absolute nature of the statutory responsibility contained in the statute law, fiscal damages became really attractive for injured workers, and this resulted in deviating the object of the jurisprudence from prosecution and bar towards a system of civil compensation. In Hutchison v London Eastern Rly Co 1942, Lord Justice Goddard stated “ The existent inducement for the observation by employers of their statutory responsibilities is non their liability to significant mulcts, but the possibility of heavy claims of amendss ” ( N Selwyn, 2000 p. 4 & A ; 5 ) .
The early Victorian piecemeal statute law set a form of narrow regulative criterions, which were formulated for certain groups of people, exposed to peculiar jeopardies in specific industries notably mining and mills. So much so that by the 1970s there were 30 legislative acts and 500 sets of ordinances.
In 1972 after being appointed to, “ reexamine the proviso made for the wellness and safety of individuals in the class of their employment ” , the Robens study found a great trade incorrect with the system so made a figure of far making proposals as a solution to these jobs. The first was to invent a system where wellness and safety was perceived as the concern of everyone, employer and employee and non merely the dedicated few. In the study it stated “ our present system places excessively much trust on State ordinance, and instead excessively small on personal duty and self-generating attempt ” . The second was to develop a individual comprehensive model of statute law that would cover all facets of the working environment, to be supplemented and supported by controls that would turn to specific jobs, which would necessitate to be assisted by codifications of pattern that were more flexible. Third the enforcement of the statute law would necessitate a more incorporate authorization which would hold overall duty for originating statute law, giving aid and advice, holding stronger enforcement powers and when necessary be able to depute its enforcement maps. This new attack was known as the “ Robens Philosophy ” in which a wide legislative model of general responsibilities would enforce a proactive attack to wellness and safety of the workplace, so advancing a safe system of work. This doctrine was mostly adopted into the Health and Safety at Work etc Act 1974. ( HSWA ) .
Lord Roben referred back to historical English common and instance jurisprudence to back up the legal model and to clear up cardinal phrases. It is indispensable that people are able to do a clear differentiation between similar phrases and hence left in no uncertainty about the precise significance of each phrases.
For illustration, in subdivision 2 ( 1 ) of HSWA it states that “ It shall be the responsibility of every employer to guarantee, so far as is moderately operable, the wellness, safety and public assistance at work of all employees ” . To happen accurate significance of the stage “ moderately operable ” you have to mention to instance jurisprudence Edwards v. National Coal Board ( 1949 ) , when a mineworker was killed while going down an unsupported route. Lord Asquith the justice decided a balance had to be struck between the hazard against the forfeit ( cost, clip and problem ) . He deemed in this instance that it was non an inconsequential hazard and the coal board should hold made the route safe. Therefore to transport out this responsibility, “ so far as is moderately operable ” means there should be a balance between clip, problem and cost of seting steps in topographic point to avoid the hazard. The instance besides concluded that size of the administration or its pecuniary wealth should non be considered when doing determination ( B Barrett and R Howells, 1997, p. 67 ) .
Another instance ( Marshall v. Gotham 1954 ) affecting a prostration of a mine roof merely five old ages subsequently changed how the term was interpreted when the justice ruled that if the “ safeguards were operable they should be under taken ” , hence altering the reading of the term to propose the cost, clip and problem are NOT to be taken into history in geting at a determination. This instance non merely changed how the term was interpreted it besides encouraged greater employer ego ordinance. The addition in hazard appraisals and method statements to guarantee a safe environment for all stakeholders can be seen as a byproduct of the reading as employers became more acute to avoid civil action.
Another phrases used in HSWA is “ Duty of Care ( Neighbour Principal ) ” The Donoghue v. Stevenson instance involved two friends, one lady bought a bottle of ginger beer and gave it to her friend. The bottle contained a dead snail which later made the friend ailment. The lady who bought the beer sued the shaper for a breach of contract. The justice decided that the beer industry had a “ responsibility of attention ” non merely to the lady who bought the beer but besides to her friend. In this sense, the justice stated that sensible attention must be taken to guarantee Acts of the Apostless or skips ( where there is sensible foresight ) would non likely injure any of the stakeholders, widening the responsibility of attention to the ‘neighbour ‘ ( J Stranks, 1996, p. 244 ) .
This was further developed by Lord Wright in Wilsons & A ; Clyde Coal Co Ltd V English ( 1937 ) Lord Wright provided a more specific definition of the employers responsibility in regard of the “ neighbour relationship ” , defined the duty in three parts, “ the proviso of a competent staff of work forces, equal stuff, and a proper system and effectual supervising ” ( B Barrett and R Howells, 1997, p. 209 & A ; 210 ) .
Some of the issues which ab initio appear consecutive frontward have led to troubles because the jurisprudence is an enabling Act and as such is non specific. For illustration, the phrases “ work ” and “ at work ” can hold many readings. The instance between Coult v Szuba ( 1982 ) showed how tribunals have struggled to construe the jurisprudence, frequently intending an adjudication can non be reached. The employee in this instance, although at work, was non prosecuted under the HSWA because he was still going to his work topographic point and could hold been prosecuted under Hignways Act 1972. This became an even gray country three old ages subsequently when two instances Nancollas V Insurance Officer and Ball v Insurance officer ( 1985 ) came to tribunal and the Judgess were unable to place “ whether the claiment was at the material clip moving in the class of his contractual duties to his employers ” .
The HSWA 2 ( 2 ) provides extended “ general responsibilities ” for all employers to adhere to in making a safe working environment. The foundation of many of these responsibilities can be found in instance jurisprudence and common jurisprudence. For illustration, the phrase “ foreseeable can be traced to Brydon 5 Stewart ( 1859 ) where a excavation house was found to be negligent in relation to an accident in an excavation unfastened lift. The phrase was farther clarified in 1953, Lamtimer V AEC where the employers were non found apt for hurts caused to an employee who slipped during unexpected implosion therapy. The employer had taken “ sensible safeguards ” and the hazard had non been foreseeable.
Section 2 ( 2 ) besides considers proviso of “ safe work systems ” and identifies that responsibilities under common jurisprudence are in add-on to those assumed by legislative act. This is demonstrated in Bux v Slough Metallic elements Ltd ( 1974 )
Where an employee was blinded after neglecting to have on the protective goggles provided. The employee stated that he had chosen non to have on the goggles because they kept steaming up. The tribunal concluded that the employers were apt for the blinding because they had non provided a safe work system ( the goggles were non “ tantrum for intent ) and they had breached their responsibility of “ effectual supervising ” ( I Fife and EA Machin, 1979, p. 84 & A ; 542 ) .
Tesco V Seabridge ( 1988 ) highlighted responsibility of attention in relation to “ care ” . Some of the prison guards keeping an electric fan were losing and an employee was later injured. Tesco argued that the responsibility of attention sat with the electrical contractors who fitted the fan, but the tribunal ruled that Tesco were apt as the responsibility of attention in relation to maintenance rested with Tesco and as such were in breach of responsibility.
The proviso of safety policies within the HSWA have besides been developed over a figure of old ages through instances like Armour V Skeen ( 1977 ) where employers were held apt because a deficiency of wellness and safety policy meant that no safe system of work was established, taking to the accident of a worker falling from a span.
In decision, the journey of UK Health and Safety Law is a far from additive way, but is alternatively a mix of legislative act, condemnable and civil jurisprudence, where case in points from instances many old ages earlier are used to inform present twenty-four hours determination devising.
Society and peoples values have changed well over clip, seting a much higher worth on human life. The doctrine of waiting for an accident to go on and so paying compensation has been overtaken by a greater focal point on bar and improved general wellness and safety – through the issue of betterment and prohibition notices by the inspectorate, besides in the more normative demands of the wellness and safety ordinances.
Historically civil jurisprudence had a focal point on compensation ; in modern times it has become an indispensable tool in clear uping footings used in the more general preventive statute law.
The greater engagement of the work force in wellness and safety at work through the assignment of safety representatives and the creative activity of safety commissions, is raising the consciousness of the employee to their duties for wellness and safety and the responsibility of attention that they are entitled.
UK health and safety laws have been established over the last 200 years. Initial statutes relating to specific industries and practices have over time been replaced by more general legislation covering more general principals of health and safety. Throughout this historical development, the role of the courts has been crucial in clarifying general principles and statements of law.
UK statute law is passed by parliament and provides legal definition, guidelines and boundaries of behaviour and practice.
Common law, and specifically civil liability has been constructed with the body of case law put together over scores of years. As people’s principles and attitudes change over passing time so does common law. The judiciary must decide on the doctrine of precedence when making adjudication. These verdicts then influence successive cases and how decisions are interpreted. One judge’s ruling will set a precedent for subsequent, similar cases. Likewise, when a judge is taking into consideration the plus points of a specific case, they will look to previous occasions in comparable situations in order to bench mark, in which to make their judgement (J Stranks, 1996, p. 1 & 2) & (EDP Health, Safety & Environmental Consultants, 1989 – 2006).
A civil action involves individuals. In this case a claimant sues a defendant in order to get an outcome, which will be of benefit to the claimant. The outcome of a civil action tends to be in the form of a financial payout. The cases in a civil action are heard at County Court or High Court and unlike criminal action the burden of proof is based on the balance of probabilities. This is a lesser burden of proof than Beyond Reasonable Doubt (Legal-Explanations. com, 2006). The most common actions that tend to be heard in civil courts are accident claims with damages being awarded to an injured person, although many accident claims never actually make it to court. This is because companies will more often than not settle out of court as it is more advantageous both on the “company’s purse strings and their reputation” (J Stranks, 1996, p. 11).
Initially health and safety law was developed from the belief that if employers have to pay recompense for injuries sustained in the workplace they would find this enough of a motivator to ensure the improvement of health and safety did reduce accidents.
Originally health and safety legislation was enforced through the use of criminal law against companies/factories who broke the legislation. Early in the 19th Century new industrial processes and machinery presented new hazards and minor legislation was introduced in an attempt to address some of the safety issues. In 1833 the Factory act was passed, a section of which required four factory inspectors be appointed with powers to investigate and prosecute contraventions this measure fell well short of the commitment needed (N Selwyn, 2000, p.4.).
Over time the importance on sanctions changed, this was due to two issues. Firstly the enforcement of legal health and safety constraints on British industry meant factories became less competitive than their foreign counterparts. The limited capacity of the judicial system also meant that courts were over loaded delaying legal proceedings leading to further restraints to industry. The second and probably the more significant reason for the change in prominence of sanctions was that the wronged person could, if he/she had suffered injuries at work, bring a civil action against their employer for a breach of a statutory duty.
The case of Groves v Lord Wimbourne 1898 was the first time a successful prosecution was brought against an employer for breach of statutory duty which in this case related to unfenced machinery that resulted in the workers fingers sustaining injuries. The absolute nature of the statutory duty contained in the legislation, financial redress became very attractive for injured workers, and this resulted in diverting the object of the law from prosecution and prevention towards a system of civil compensation. In Hutchison v London Eastern Rly Co 1942, Lord Justice Goddard stated “ The real incentive for the observance by employers of their statutory duties is not their liability to substantial fines, but the possibility of heavy claims of damages” (N Selwyn, 2000 p. 4 & 5).
The early Victorian piecemeal legislation set a pattern of narrow regulatory standards, which were formulated for certain groups of people, exposed to particular hazards in specific industries notably mining and factories. So much so that by the 1970s there were 30 statutes and 500 sets of regulations.
In 1972 after being appointed to, “review the provision made for the health and safety of persons in the course of their employment”, the Robens report found a great deal wrong with the system so made a number of far reaching proposals as a solution to these problems. The first was to devise a system where health and safety was perceived as the concern of everyone, employer and employee and not just the dedicated few. In the report it stated “our present system places too much reliance on State regulation, and rather too little on personal responsibility and self-generating effort”. The second was to develop a single comprehensive framework of legislation that would cover all aspects of the working environment, to be supplemented and supported by controls that would address specific problems, which would need to be assisted by codes of practice that were more flexible. Thirdly the enforcement of the legislation would require a more unified authority which would have overall responsibility for initiating legislation, giving assistance and advice, having stronger enforcement powers and when necessary be able to delegate its enforcement functions. This new approach was known as the “Robens Philosophy” in which a broad legislative framework of general duties would impose a proactive approach to health and safety of the workplace, so promoting a safe system of work. This philosophy was largely adopted into the Health and Safety at Work etc Act 1974. (HSWA).
Lord Roben referred back to historical English common and case law to support the legal framework and to clarify key phrases. It is essential that people are able to make a clear distinction between similar phrases and therefore left in no doubt about the precise meaning of each phrases.
For example, in section 2 (1) of HSWA it states that “It shall be the duty of every employer to ensure, so far as is reasonably practicable, the health, safety and welfare at work of all employees”. To find accurate meaning of the phase “reasonably practicable” you have to refer to case law Edwards v. National Coal Board (1949), when a miner was killed while travelling down an unsupported road. Lord Asquith the judge decided a balance had to be struck between the risk against the sacrifice (cost, time and trouble). He deemed in this case that it was not an inconsequential risk and the coal board should have made the road safe. Therefore to carry out this duty, “so far as is reasonably practicable” means there should be a balance between time, trouble and cost of putting measures in place to avoid the risk. The case also concluded that size of the organisation or its monetary wealth should not be considered when making decision (B Barrett and R Howells, 1997, p. 67).
Another case (Marshall v. Gotham 1954) involving a collapse of a mine roof only five years later changed how the term was interpreted when the judge ruled that if the “precautions were practicable they should be under taken”, therefore changing the interpretation of the term to suggest the cost, time and trouble are NOT to be taken into account in arriving at a decision. This case not only changed how the term was interpreted it also encouraged greater employer self regulation. The increase in risk assessments and method statements to ensure a safe environment for all stakeholders can be seen as a by-product of the interpretation as employers became more keen to avoid civil action.
Another phrases used in HSWA is “Duty of Care (Neighbour Principal)” The Donoghue v. Stevenson case involved two friends, one lady bought a bottle of ginger beer and gave it to her friend. The bottle contained a dead snail which subsequently made the friend ill. The lady who bought the beer sued the maker for a breach of contract. The judge decided that the beer manufacture had a “duty of care” not just to the lady who bought the beer but also to her friend. In this sense, the judge stated that reasonable care must be taken to ensure acts or omissions (where there is reasonable foresight) would not likely injure any of the stakeholders, extending the duty of care to the ‘neighbour’ (J Stranks, 1996, p. 244).
This was further developed by Lord Wright in Wilsons & Clyde Coal Co Ltd v English (1937) Lord Wright provided a more specific definition of the employers duty in respect of the “neighbour relationship”, defined the responsibility in three parts, “the provision of a competent staff of men, adequate material, and a proper system and effective supervision” (B Barrett and R Howells, 1997, p. 209 & 210).
Some of the issues which initially appear straight forward have led to difficulties because the law is an enabling Act and as such is not specific. For example, the phrases “work” and “at work” can have many interpretations. The case between Coult v Szuba (1982) showed how courts have struggled to interpret the law, often meaning an adjudication cannot be reached. The employee in this case, although at work, was not prosecuted under the HSWA because he was still travelling to his work place and could have been prosecuted under Hignways Act 1972. This became an even greyer area three years later when two cases Nancollas v Insurance Officer and Ball v Insurance officer (1985) came to court and the judges were unable to identify “whether the claiment was at the material time acting in the course of his contractual obligations to his employers”.
The HSWA 2 (2) provides extensive “general duties” for all employers to adhere to in creating a safe working environment. The foundation of many of these duties can be found in case law and common law. For example, the phrase “foreseeable can be traced to Brydon v Stewart (1859) where a mining firm was found to be negligent in relation to an accident in an mining open lift. The phrase was further clarified in 1953, Lamtimer v AEC where the employers were not found liable for injuries caused to an employee who slipped during unexpected flooding. The employer had taken “reasonable precautions” and the risk had not been foreseeable.
Section 2 (2) also considers provision of “safe work systems” and identifies that duties under common law are in addition to those assumed by statute. This is demonstrated in Bux v Slough Metals Ltd (1974)
Where an employee was blinded after failing to wear the protective goggles provided. The employee stated that he had chosen not to wear the goggles because they kept steaming up. The court concluded that the employers were liable for the blinding because they had not provided a safe work system (the goggles were not “fit for purpose) and they had breached their duty of “effective supervision” (I Fife and EA Machin, 1979, p. 84 & 542).
Tesco v Seabridge (1988) highlighted duty of care in relation to “maintenance”. Some of the screws holding an electric fan were missing and an employee was subsequently injured. Tesco argued that the duty of care sat with the electrical contractors who fitted the fan, but the court ruled that Tesco were liable as the duty of care in relation to maintenance rested with Tesco and as such were in breach of duty.
The provision of safety policies within the HSWA have also been developed over a number of years through cases like Armour v Skeen (1977) where employers were held liable because a lack of health and safety policy meant that no safe system of work was established, leading to the accident of a worker falling from a bridge.
In conclusion, the journey of UK Health and Safety Law is a far from linear path, but is instead a mix of statute, criminal and civil law, where precedents from cases many years earlier are used to inform present day decision making.
Society and peoples values have changed considerably over time, putting a much higher worth on human life. The philosophy of waiting for an accident to happen and then paying compensation has been overtaken by a greater focus on prevention and improved general health and safety – through the issuing of improvement and prohibition notices by the inspectorate, also in the more prescriptive requirements of the health and safety regulations.
Historically civil law had a focus on compensation; in modern times it has become an essential tool in clarifying terms used in the more general preventative legislation.
The greater involvement of the workforce in health and safety at work through the appointment of safety representatives and the creation of safety committees, is raising the awareness of the employee to their responsibilities for health and safety and the duty of care that they are entitled.