Shoosmiths partner and regulatory specialist Ron Reid recently took part in a health and safety legal update webinar. Here, he answers post-webinar questions received from over 1,200 viewers.
Are no-win, no-fee claims going to be impossible now that referral fees are banned?
No, they can still be undertaken. Whether or not anybody is going to undertake them, with the uncertainty that surrounds the ability to get back the cost of doing so, is perhaps another question.
Is the change in strict liability going to lead to lengthier and more expensive litigation?
It's a tricky one. I think there will probably be some test cases on the legislation removing strict liability. For example, the Association of Personal Injury Lawyers feel this removal may be a breach of the EU directive, in which case challenges may be made. If it stays as intended and removes strict liability - meaning that negligence has to be proved - then of course, longer trials may take place.
Are accident investigation reports covered by legal privilege?
When an accident occurs, and you undertake an accident investigation report, it is now increasingly likely that the authorities are going to ask to see that document. This will determine their response. For example, do they need to attend the site immediately? What helps them make that decision is what is in that report. Legal privilege, will not come into effect in relation to that document (the accident investigation report), unless it was only bought into existence for the purposes of litigation; for example, you knew there would be a claim and instigated the retention of a lawyer who required that report. If the main purpose of the investigation report was to investigate the cause with a view to improving procedures or preventing reoccurrence then it will not be privileged
It is important to realise that unless the purpose of the accident investigation report is to defend litigation, you will have a problem hanging onto any legal privilege. And, as they say, it can then be used in evidence against you.
Within what timeframes must specified injuries be reported?
Under RIDDOR, for most types of incident, including:
- accidents resulting in the death of any person
- accidents resulting in 'specified injuries' to workers (defined in the regulations)
- non-fatal accidents requiring hospital treatment to non-workers
- dangerous occurrences
the responsible person must notify the enforcing authority without delay, in accordance with the reporting procedure (this is most easily done online). Alternatively, for fatal accidents or accidents resulting in specified injuries to workers, reporting must be done by phone - 0845 300 9923. For these a report must be received within 10 days of the incident.
For accidents resulting in more than seven days of incapacitation, the period for notifying the enforcing authority is within 15 days of the incident, using the appropriate online form.
How likely is it people will challenge the FFI decision?
It is possible, although you should be very careful when going through this process. There have been a number of successful challenges. Challenging is worthwhile, although you need to be on sure footing and it might be quite expensive should you need to bring in the help of lawyers. However, just paying the invoice as the easy option ought not to be done either, because it may be the first of several and payment will amount to an admission that there has been a material breach of health and safety regulation should a prosecution follow.
Does the safety representative have a right to accompany the FFI inspector?
Yes, if they are appointed under the 1997 regulations, and it is certainly good practice. However, they shouldn't necessarily be the person who is speaking on behalf of the organisation/owner of the site. Of course, the safety representative has every right to speak to the inspector. Often, the inspectors will want to speak to them anyway.
This relationship with the inspector is extremely important, whether or not there is a material breach. Ultimately it is the inspector's decision if FFI is triggered, he has the final say.
Is the removal of the CDM-C role and ACoP a backwards step?
It is difficult to say at the moment, as we have yet to see it. It depends on what they are intending to replace it with.
Is there going to be a review of the EU source directive for CDM?
No, but occasionally one thing may lead to another. It is possible that the CDM regulations will change, and then someone will challenge the fact that the new regulations are not in accordance with the EU directive.
How rare are joint inspections these days?
Not as rare as you might think. There is often crossover with the HSE and local authorities, and of course within COMAH, when the HSE will work closely with the environment agency.
Is the Löfstedt review simply not red-tape to remove supposed red-tape?
No, I don't think it is red-tape. It is merely an attempt to remove all the red-tape within the industry.
I think we have to give some credit here. The report has had a surprising amount of traction. Many people thought that the industry would not be able to make his recommendations, and certainly not within the time limits, but they have. They have made remarkable progress.
Most of the ACoPs have been looked at, most of the guidance has been reviewed. The challenge lies in spotting those changes. Unfortunately, people seem to only look at the guidance when they need to rather than proactively.
How straightforward is it changing an ACoP?
At the very core, it depends on the regulations. What the HSE are trying to do - and in line with Löfstedt's review - is to simplify them.
I think the recent changes to the legionella ACoPs show this simplification, but for such a complex subject, there is not a huge amount that can be trimmed down. Again, it is very important that people get to grips with the subject and understand the guidance.
How long will entries be held for on the HSE prosecution and enforcement databases?
On 4 December 2013, the HSE approved changes to the periods of retention of records of prior prosecution and enforcement. It is not yet known when it will take effect
The proposals are that for individual - as opposed to corporate offenders - the HSE will reduce, from five years to 12 months, the period for which records of non-custodial convictions are held. Custodial sentences, which are currently held for five years, will be removed at two, four and seven years, depending on the length of the sentence. Enforcement notices imposed on individuals will continue to be held for five years.
The HSE has also decided to reduce the retention periods for organisation to 10 years for enforcement notices and prosecutions.
See for yourself
To view the webinar, please visit http://vimeo.com/81597917