Prevention is better than criminal law. Landed Estate Trustees personally liable for criminal health and safety prosecutions

Any person who holds property, authority, or a position of trust or responsibility for the benefit of another is a trustee. Also a trustee can be a person who is allowed to do certain tasks but not able to gain income (Wikipedia). For this reason, many Landed Estates choose to appoint solicitors as trustees.

Landed Estate trustees may not be aware that they could be personally liable for a criminal prosecution should any employee, visitor or contracted service provider be injured or killed on the estate.

The Corporate Manslaughter and Corporate Homicide Act 2007 means that companies and organisations can be found guilty of corporate manslaughter or homicide (in Scotland) if its activities are managed or organised in such a way that

  1. Causes a person’s death, and
  2. Amounts to a gross breach of a relevant duty of care owed by the organisation to the deceased.

The introduction of the act makes an organisation liable if a fatality results from the way in which its activities are managed or organised.  Corporate manslaughter is an extremely serious offence, reserved for the very worst cases of corporate mismanagement leading to death.  Courts will look at management systems and practices across the organisation, and whether an adequate standard of care was applied to the fatal activity.

Juries will be required to consider the extent to which an organisation was in breach of health and safety requirements, and how serious those failings were. 

They will also be able to consider wider cultural issues within the organisation, such as attitudes or practices that tolerated health and safety breaches.

You cannot insure against a criminal prosecution

There are two types of law, criminal law that enforces a code of conduct and allows the state to punish and civil law which enables an individual who has suffered harm to seek compensation or an injunction to prevent harm (or further harm) from occurring.

You can insure against the costs of a civil law suit, such as negligence, but not against a criminal offence.

Health and Safety prevention

It is imperative that trustees ensure there is adequate health and safety in place not only for their direct employees and visitors but that their contractors also have robust policies in place, so hire from an approved list of contractors that have provided evidence that they comply and enforce all health and safety requirements.

Health and Safety at Work Act 1974 (HSWA) is the primary piece of legislation covering occupational health and safety in Great Britain.  Under the Act, employer’s duties include:

  1. Protect health, safety and welfare of employees;
  2. Provide and maintain safe systems of work;
  3. Ensure safety in the use, handling, storage and transportation of articles and substances;
  4. Provide information, supervision and training;
  5. Provide safe places/environment for work, with safe access and egress;
  6. Provide adequate welfare facilities and arrangements;
  7. If five or more people are employed at any one time for a single undertaking – produce written health and safety policy;
  8. Protect people not in their employment that may be affected by their operations;
  9. Consult safety representatives and establish a safety committee when requested by two or more safety representatives;
  10. Provide free of charge items required by statutory provisions.
  11. Employees’ duties include:
  • Take reasonable care for themselves and others who might be affected by their acts or omissions;
  • Cooperate with their employer or other person so far as is necessary to enable them to comply with their own statutory duties and requirements;
  • Not intentionally or recklessly interfere with or misuse anything provided in the interests of health, safety or welfare.

Since 1974 a ‘Six Pack’ of regulations have developed that enact a number of European Union Directives.  The regulations are:

  1. Management of Health and Safety at Work Regulations 1999 – MHSWR;
  2. Workplace (Health, Safety and Welfare) regulations 1992 WHSWR;
  3. Health and Safety (Display Screen Equipment) regulations 1992 – DSE;
  4. Personal Protective Equipment at Work regulations 1992 – PPE;
  5. Manual Handling Operations Regulations 1992 – MHOR;
  6. Provision and Use of Work Equipment regulations 1998 – PUWER.

So what impact does this have on modern landed estates?

Trustees must ensure that written risk assessments cover each aspect of the estate and any public access and that third party liability insurance is in place. And it is imperative that all estates must write and implement a robust health and safety report which is kept under constant review. This will not only limit the chances of injury or death but will minimise the risks of a criminal prosecution due to gross negligence.

 

 

 

Fire Safety (Regulatory Reform) Order 2005

It is 10 years since the Fire Risk Assessment became a legal requirement

Responsibilities

The person responsible for completing the Fire Risk Assessment is the owner or occupier of the premises.

The risk assessment should be completed by a competent person and be suitable and sufficient. That means that it needs to have considered all of the hazards including those relating to third parties and to have identified the appropriate control measures.

Within a farm or estate context that usually means prioritising, for example areas where people congregate, where hot works or chemicals are stored – including workshops, fan houses, chemical stores or staff welfare facilities.

It is important to understand the responsibilities of others such as commercial tenants where they occupy buildings or parking and loading areas within the yard. Each tenant has a responsibility to conduct a Fire Risk Assessment of the area that they occupy.

As the landlord you should note that obligation within the tenancy agreement and ensure that the tenant supplies you with a copy of their Fire Risk Assessment.

Where there are multiple tenants in one yard or where they share access to the site and particularly where they are immediately adjacent to one another you as the landlord should be coordinating the emergency plan for the site. Whilst this plan is important to be able to produce evidence of compliance it is also essential in order to enable for you to provide information to the fire service and to get the fire fought as quickly and effectively as possible.

The Fire Risk Assessment should form the basis for developing any emergency plans that may be required to inform employees and third parties of what to do in the event of a fire.

It is likely that the completion of a Fire Risk Assessment is a requirement of your insurance policy detailed somewhere in the small print. Failure to have and to maintain a suitable and sufficient Fire Risk Assessment can render your policy null and void.

 Download the FRAS Five key steps, fill in the check list and assess your fire risk and plan fire safety

https://www.gov.uk/government/uploads/system/uploads/attachment_data/file/14899/fsra-5-step-checklist.pdf

 Capture FRAS 5 steps and checklist 

OCD December 2015

Safety Revolution Ltd ©

 

 

 

 

 

Tip of the Week

Tip of the Week: Fertiliser Storage

Firstly, you must ensure that you store all fertilisers safely.

Special requirements apply for the storage of ammonium nitrate (AN) fertiliser. As an oxidising agent, it can help other materials to burn and in certain circumstances it can explode and give off toxic fumes.

  • Storage buildings should be constructed of non-combustible material and should not contain other combustible materials.
  • Where this is not reasonably practicable, store AN fertilisers as far away as possible from combustible materials and never within 2m of them.
  • If you are storing  over 25 tonnes of dangerous substances or 150 tonnes or more of AN (where the nitrogen content exceeds 15.75% by weight), you must notify your local Fire & Rescue Service.

Further details of notification requirements can be found here.

Tip of the Week

Tip of the Week: Working on or passing near to fragile roofing material

You will need to provide protection when anyone passes by or works nearer than 2 m to fragile materials, eg during access along valley gutters in a fragile roof, when an otherwise non-fragile roof contains fragile roof lights, or during access to working areas on a fragile roof.

You should:

  • wherever possible, make sure that all fragile materials (eg 2 m or closer to the people at risk) are securely covered; or
  • provide full edge protection (top rail, intermediate guard rail or equivalent and toe board) around or along the fragile material to prevent access to it. Make sure you take precautions when installing such protection, eg use appropriate netting.

If it is not reasonably practicable to provide such protection:

  • use safety nets or harnesses but make sure workers are trained and competent in their installation and use. If the building structure is unsuited to netting or harnesses (eg too low), a well-built and suitably sized bale stack close to the underside of the fragile roof being worked on will reduce the risk of injury if someone does fall through the roof.
Tip of the Week

Tip of the Week: Staying Safe When Using an ATV

The first thing to remember when operating an ATV is that anyone riding one should ALWAYS wear a helmet. Many ATV fatalities have been caused by head injuries but wearing a helmet could have prevented most of these.

Another key point to remember is that the long seat on an ATV allows operators to shift their body weight backwards and forwards for different slope conditions. It is not for carrying passengers.

Further tips for staying safe when using an ATV include:

  • Carrying out safety checks and maintenance in accordance with the manufacturer’s recommendations, e.g. regularly check tyre pressures, brakes and throttle
  • Securing loads on racks and making sure they are not over loaded and evenly balanced
  • Always reading and following the owner’s manual
  • Sticking to planned routes, where possible, and walking new routes if necessary to check for hidden obstructions, hollows or other hazards
  • Taking extra care with trailed or mounted equipment and understand how they affect stability
  • Making sure all those who will be operating the ATV receive adequate training