Maintain your guard 07 December 2011

Health and safety regulations continue to be breached, with sometimes tragic, as well as costly consequences. David Lewis reviews the legal landscape and some salutary cases

Latest HSE statistics (2009—2010) show that prosecutions were the lowest on record, with just 1,026 offences laid before the courts and 559 cases prosecuted. When issued, these figures were widely publicised, with coverage noting that in the early 1990's prosecution levels were three times as high. So the danger is that duty holders may consider the risk of enforcement by the HSE to be receding.

In reality, prosecution rates have been fairly consistent for the past five years. Furthermore, enforcement notices have risen to a five-year high, with 5,811 improvement notices, 47 deferred prohibition notices and 3,876 immediate prohibition notices issued last year alone.

The average fine now stands at £15,817, before prosecution and defence costs, and the hidden costs associated with proceedings. Businesses also now face the prospect of HSE charging 'intervention costs', to recover inspectors' time. Note also that offences under the Health and Safety at Work Act 1974 (the Act) are viewed by the courts as more serious than charges under PUWER (Provision and Use of Work Equipment Regulations 1998) and LOLER (Lifting Operations and Lifting Equipment Regulations 1998). Last year, breaches of the Act resulted in average fines of £26,649, while those for PUWER averaged at £10,912.

Further, it is often a report of a duty holder's failings in respect of regulatory requirements that leads to HSE intervention. However, prosecutions under the regulations are not always favoured by HSE – the evidence being used instead to support a wider charge under section 2 or 3 of the Act.

Case law
So what do recent cases tell us? Taking PUWER first, breaches of Regulation 11(1) are common, with absence of guarding being the main cause. That Regulation states: 'Every employer shall ensure that measures are taken which are effective to prevent access to any dangerous part of machinery or to any rotating stock-bar; or to stop the movement of any dangerous part of machinery or rotating stock-bar before any part of a person enters a danger zone'.

Lack of supervision was cited as a factor that allowed a worker to enter a grain silo to undertake maintenance, without first isolating the power to a screw auger. The auger activated and the worker's leg was amputated.

Elsewhere, a maintenance worker clearing an obstruction was crushed between a rolling carriage and the support structure at the end of the tracks. The company had recognised the risks from the electric power supply, and this was correctly isolated. However, the carriage itself was pneumatically powered, and this had not been considered. There was no system to prevent the carriage moving once the obstruction was removed.

Meanwhile, a fine of £20,000 was imposed for two breaches by a firm where safety devices were bypassed. Operators used spare keys to allow machinery to operate at full power despite the guard doors being open. This was allowed to happen even though an HSE inspection had uncovered the practice just four months earlier: hence the scale of fine in the absence of any injury.

Finally, an assembly line worker lost part of his finger when attempting to clear debris from the rotating wheel drive of a slicing machine. Here, a guard was provided, but no automatic power isolation switch when the guard was moved out of place.

Similarly, breaches of Regulation 5 – which states, 'Every employer shall ensure that work equipment is maintained in an efficient state, in efficient working order and in good repair' – are also prevalent. In one case, a control lever on a log-splitting machine had been forced, allowing the machine to work without a protective guard in place. When the feed chute became blocked, the operator reached through to clear the obstruction, resulting in amputation of his thumb and fingers. Elsewhere, a forklift truck overturned, killing the driver, due to incorrect modifications to the braking mechanism.

On occasions, the HSE may decide to pursue several breaches. In April this year, a steel firm was fined as a result of a worker's feet being crushed in a rolling mill. Fines under PUWER were imposed for failing to provide written instructions (Regulation 8(1) – £11,500); failing to guard against injury from burning (Regulation 13 – £9,000); and failing to ensure that re-connection of energy did not expose any person to risk (Regulation 19(3) – £10,500). Additionally, the firm was fined £9,000 under Regulation 3(1) (a) of the Management of Health and Safety at Work Regulations 1999, for failing to provide a suitable and sufficient risk assessment.

Prosecutions under LOLER are less frequent: in fact, there were fewer than 50 last year. However, two are worth mentioning. Both were breaches of Regulation 8(1), which states, 'Every employer shall ensure that every lifting operation involving lifting equipment is properly planned by a competent person; appropriately supervised; and carried out in a safe manner'.

In the first, a demolition worker was killed when a 31 ton concrete beam fell from a lorry. The beam had been craned onto the lorry, but the supporting chains were removed from the crane before the beam was strapped to the lorry, allowing the load to slip. The sub-contracted crane company was fined £30,000 and ordered to pay £10,000 costs for the Regulation 8(1) offence, but the main contractor was prosecuted under Sections 2 and 3 of the Act and fined £100,000 with costs totalling £20,000.

In the second case, incorrect equipment was used to remove a crane runway from a warehouse. The four ton girder was being carried by slings when it slipped and demolished an office.

One final point: it is easy to miss notifications of changes in legislation. The Notification of Conventional Tower Cranes Regulations 2010 became operative as of 6 April this year. Use of tower cranes on construction sites now needs to be notified to the HSE. This duty may fall on several parties, but if you supply, use, control or manage a crane, the duty falls on you. Do not be caught out assuming that another duty holder has informed the HSE. Guidance states that whoever is responsible for ensuring that the crane is thoroughly examined should ensure that the notification to the HSE is made. HSE leaflet INDG437 gives details of timings, information required and payment.

Legal requirements
PUWER requires the duty holder to ensure that equipment provided is suitable for its intended use, is properly maintained and inspected. Inspections should be undertaken by a competent person at regular intervals, and records kept. Risks created should be recognised and eliminated. Where this is not possible, these risks should be controlled. The duty holder is required to ensure that suitable training, instruction and information are given concerning each piece of equipment. Clearly, the level of such depends on complexity and the risks recognised.

LOLER builds upon PUWER in respect of selecting, marking and maintaining lifting equipment, which includes accessories and attachments (such as chains), but not equipment considered to be part of the load itself (such as pallets). LOLER also deals with the planning, organising and carrying out of lifting operations, defined as 'an operation concerned with the lifting or lowering of a load'. A load includes a person or people.

In all cases, it is imperative that proper records are maintained and that duty holders keep abreast of HSE warnings – for example the bulletin issued in February this year concerning maintenance of certain JLG lifting platforms.

David Lewis is Partner and Head of regulatory services at national law firm Weightmans LLP.
David.lewis@weightmans.com

David Lewis

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