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Common Law---------------------------Statute Law (Common law duty of care,…
Common Law---------------------------Statute Law
Common law has grown up over the centuries, created and amended but decisions (precedents) from cases heard in court. It is expressed in writing in the form of decisions of cases(case law).
Statute law is written law.
Common law is a source of both criminal and civil law
Common law is relevant to civil law in that it establishes a duty of care which, if not met, can lead to an injured person suing for negligence
The duty of care is reflected in criminal law in the statutory duties of HASAWA (safe place of work, safe plant and equipment, safe systems of work, reasonably competent person)
People are owed a common law duty of care by their 'neighbour' (Donoghue v Stevenson 1932).
Employees are owed a common law duty of care by their Employer (Wilson and Clyde Coal v English 1938)
Common law duty of care
Safe place of work
e.g. structure of building must be sound
Safe working environment
e.g. heating,lighting,ventillation
Safe access and egress
e.g. exits which are not blocked
Safe plant and equipment
e.g. machine guards
safe systems of work
e.g. method statements, permits-to-work
Competent fellow employees
e.g. through induction and training
Employer's duty to each employee
e.g. higher duty to person with disability
Employer's duty if employee working off site
e.g. home workers
Statute law is a source of both criminal and civil law
Statute law comprises primary legislation (Acts of parliament) and delegated legislation (Regulations)
Some statues (e.g. HASWA) are used entirely in criminal law. Others (e.g. Occupiers' Liability Act) are actionable only under civil law.
Role of the european union
Council of the european Commission issues Directives to harmonise laws of member states
Directives impose a duty on each member state to make legislation to conform to the Directive
In the UK, Directives are translated into Regulations, e.g. Working Time Regulations
Purpose and legal status of Health and Safety Regulations
Impose statutory duties
Can be prosecuted if breached
Usually made under HASWA (subordinate legislation)
Used to implement EU directives
Purpose and status of approved codes of practice (ACoPs)
Recognised interpretation of how to comply with legislation
Must either comply with or show equal or better standard
Quasi-legal
Can be used as evidence in court
Absolut and qualified duties
Absolute duty
Where the risk of injury is inevitable if precautions are not taken. This duty does not allow choice and takes no allowance of how much an employer can afford. The employer "shall"
So far as is practicable
The requirements must be carried out and are only limited by the current state of knowledge and invention, even though implementation may be difficult, inconvenient and/or costly.
So far as is reasonably practicable
An employer is entitled to balance the costs of remedy against the benefits in reduction of risk. If the benefit is minimal compared to the cost, the employer need not carry out the duty.
Main features of civil law
Regulates disputes between individuals
Claimant sues defendant with the aim of claiming compensation
Claimant has 3 years (from the date of knowledge) to commence a lawsuit (otherwise it becomes statute barred)
Standard of proof based on the balance of probability
Structure of civil courts
Supreme Court
Hears appeals on arguable points of law of the greatest public importance
Court of appeal
Hears cases referred from County Courts and High Court
High Court
Claims over £50k
County court
Claims up to £50k
Role of civil courts
Hear cases based on breach of common law duty of statutory duty
Resolve disputes between individuals
Establish liability
Award compensation to individuals
Civil law liabilities
Tort - a civil wrong committed by one party against another
Tort of negligence - the failure to provide a common law duty of care to a reasonable standard
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e.g. Failure to provide safe plant and equipment
Failure to provide safe access and egress
Test for tort of negligence
The injured party (claimant) must show that:
They were owed a duty of care
There was a breach of the duty of care
Injury,loss or damage resulted directly from the breach of duty of care
Defences for civil law claim of negligence
No duty was owed (i.e not neighbour or employee)
Did not breach the duty (everything reasonable was done)
The breach did not cause the injury or damage
The injury or damage was not foreseeable
The claimant voluntary accepted the risk (violent non fit injuria)
Legal proceedings not started within 3 years of accident (statute barred)
Contributory negligence - partial defence (reduction in compensation amount)
Documented information that an employer may need tom defend a civil claim by an employee
Accident investigation report
Witness statement
Risk assessments
Manufacturer's instructions
Maintenance records
Inspection records
Training records
PPE records
Disciplinary records
Duty of care (neighbour principle) - applies to employers and to individuals
Tort of breach of statutory duty
When a statutory duty is breached, the criminal law system is used to punish the offender.
A person suffering damage as a result of the breach may also bring a civil action in tort (the tort of breach of statutory duty)
Tests for breach of statutory duty
The claimant must show that:
The claimant was of a class of person the statute was intended to protect
The type of injury was one the state was intended to protect
The defendant was in breach of the statute
This breach caused the injury
Defences for breach of statutory duty
The injured party was not within the class of persons protected by the statute
The injury was not of the type that the statute was designed to prevent
There was no breach of statutory duty
The breach did not cause the loss
Double-barrelled action
When someone takes civil action to gain compensation for personal injury, they may be able to use two types of tort to bring the claim: tort of negligence and tort of statutory duty.
Vicarious liability
An employer is liable for the torts (wrongs) of it's employees if they are committed during the course of the employees' employment. An employer may be subject to vicarious liability if the employee is negligent or causes injury to a third party.
Compensation
Damages are intended to put the claimant in the position they were in before injury
General damages include a figure for pain, suffering and loss of amenity
Special damages include loss of earnings, medical costs and specialist care
Main features of criminal law
State versus Individual
Standard proof is beyond reasonable doubt
Punishment, e.g. fine, imprisonment
Can't insure against fines
Structure of criminal courts
Supreme Court
Hears appeals on arguable points of law of the greatest public importance
Court of appeal
Hears appeals on sentences
High Court
Hears appeals on points of law
Crown Court
Deals with serious (indictable) offences
Magistrates' Court
Deals with minor (summary) offences
Role of criminal court
Hear cases on breaches of health and safety legislation
Determine guilt
Impose fines on individuals and organisations
Impose prison sentences on individuals
Corporate Manslaughter & Corporate Homicide Act 2007
An Organisation may be convicted if the way in which it's activities were managed or organised caused a person's death and amounted to a gross breach of a relevant duty of care owed to the deceased.
The organisation's conduct must have fallen far below what could have been reasonably been expected, for example serious health and safety breaches by the organisation.
A substantial failure within the organisation must have been at senior level
Senior level means people who make significant decisions about the organisation or substantial parts of it, for e.g. executive directors
Penalties: Unlimited fine, remedial order, publicity order
Defences
An Individual must prove that they took all reasonable care and an employer must prove they took all reasonable foreseeable precautions and that both exercised all due diligence in doing so.
The employer must prove that it was not practicable or reasonably practicable (as the case may be) to do more than what was done or that there was no better practicable way than was in fact used.
Government organisations with the power to prosecute
Health and safety executive (HSE)
Regulatory body responsible for promoting the cause of better health and safety at work
Provides information such as guidance notes, codes of practice and statistics
Campaigns, e.g. vehicle load safety
Offers advice and assistance to employers on how to comply with statutory duties
Carries out health and safety inspections
Carries out accident investigations
Takes enforcement action e.g. improvement or prohibition notices
Local authority
Similar remit to HSE. Enforce the law in lower risk workplaces such as offices and shops.
Fire authority
Office of rail and road
Fee for intervention
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HSE cost recovery scheme for carrying out it's regulatory duties.
Duty holders in material breach of the law are charged £129 per hour
Powers of inspectors
To enter premises at any reasonable time (with a police officer if necessary)
To undertake examinations and inspections as necessary
To take measurements, photographs and recordings
To order premises and equipment to be left undisturbed
To take / render harmless articles and substances
To inspect or take copies of documentation
To require a person to answer questions and sign a declaration of truth
To take enforcement action
Improvement notice
Issued for a breach of statutory duty. For example, no risk assessments
An improvement notice must:
State that the enforcing officer is of the opinion that there is or has been a contravention
Specify the provisions, in their opinion, which are contravened
Give particulars of the reasons for their opinion
Specify a period of time within which the person is required to remedy the contravention. The improvement must be complied with in the stated time.
The responsibility to confirm compliance rests with the employer
Notices are not 'lifted'; the act of being in compliance satisfies the notice
The notice must provide sufficient time for the employer to appeal i.e. more than 21 days
Prohibition notice
Issued where there is a risk of serious personal injury For example unguarded machinery
A prohibition notice must:
State that the enforcing officer is of the opinion that there is a risk of serious personal injury
Specify the matters which created the risk
Direct that the activities must not be carried out unless the matters are remedied
Appeals against notices
Appeal to an employment tribunal within 21 days
An improvement notice is suspended, pending appeal
A prohibition notice is not suspended
Role of employment tribunals
Hear appeals against improvement notices
Hear appeals against prohibition notices
Hear appeals on behalf of trade union safety representatives
Hear appeals on unfair dismissal on grounds of health and safety
Penalties for breaches of statutory duties
Magistrates' court - Unlimited fine and/or up to 6 months' imprisonment
Crown Court - unlimited fine and / or up to 2 years imprisonment
Failure to comply with a notice
Up to 2 years imprisonment
To be provided with amenities to carry out work