SHE Matters - In brief

Safety, Health and Environment Matters

By:
  • Noy Trounson

On a lighter note, two pieces of legislation have been proposed which do not have any very clear effect.

Deregulation Act 2015

S.1 of the Deregulation Act limits the duty of self-employed persons under s.3 of the Health & Safety at Work etc Act 1974 (the general duty which employers and self-employed persons owe to the employees of other employers, and indeed the public at large). S.1 now provides for this duty to be limited to self-employed persons conducting 'prescribed' undertakings.

The undertakings in question are set out in the Health & Safety at Work etc Act 1974 (General Duties of Self-employed Persons) (Prescribed Undertakings) Regulations 2015.

In addition to prescribing a list of higher risk activities (agriculture, including forestry, work with asbestos, construction, gas, genetically modified organisms and railways) the Regulations contain a catch-all provision prescribing any undertaking "if it involves the carrying out of an activity … which may pose a risk to the health and safety of another person (other than the person carrying it out or their employees)".

It could be argued that this effectively nullifies the deregulatory effect of the modification of s3 HSWA. This is because the main likelihood of a prosecution based on s.3 will arise in the event of an incident which causes death or injury to a third party. In such a case it is just possible, to say the least, that a court, in deciding whether or not the catch-all provision applies, might be influenced by the fact that the risk in question has actually materialised.

It should also of course be pointed out that most businesses are subject to S.3 HSWA in any event, because the person carrying on the undertaking is an employer.

Social Action, Responsibility & Heroism Act 2015

The Social Action, Responsibility & Heroism Act 2015 is another allegedly deregulatory measure, which applies to all proceedings in the event where the court, in considering a claim that a person was negligent or in breach of statutory duty, is determining the steps that the person was required to take to meet a standard of care.

The court is now specifically required by statute to consider whether the alleged negligence or breach of statutory duty occurred when the person was acting for the benefit of society or any of its members.

The court must similarly have regard to whether the person, in carrying out the relevant action, demonstrated a predominantly responsible approach towards protecting the safety or other interests of others.

The court must also have regard to whether the alleged negligence or breach of statutory duty occurred when the person was acting heroically by intervening in an emergency to assist an individual in danger.

The implication, though it is not clearly spelled out, is that the court should be reluctant to make a finding of liability against a person in those circumstances.

It is however somewhat difficult to envisage a court making a finding of breach of duty in any of the above scenarios, when acting under the existing law, unless the scenario also contained other facts which would clearly compel the court to make a finding of liability.

Furthermore, the Act will do little to prevent a claim being brought, which will inevitably have a nuisance value.

The statute may be seen on the legislation.gov.uk website with a note that it has no current outstanding effect.

That is a purely technical note, which merely means that the Act does not make any changes to existing legislation. However it can be argued that in this case the true meaning is rather wider than that intended.

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