Health and Safety

Case Study

Health and Safety

Jones Construction Ltd (JCLtd) is a local construction company who are working as principal contractor in the construction of 40 six-, two-, three- and four-bedroom domestic properties. The site on which they are located has a separate access road that is used for the delivery of incoming-building materials that are unloaded from the vehicles by forklift trucks.

The employees of JCLtd are responsible for any such unloading of vehicles and for the transfer of any materials to points of storage on site, such as compound or places of use.

JCLtd have recently recruited six additional part-time employees to work allocated days and weekends. The new employees include five students and a former employee who had taken early retirement. Their duties include taking deliveries, checking deliveries for quality and quantity, unloading/loading and assisting with the transfer of materials to points of storage and around site.

On his second day at work, one of the new employees, a 17-year-old student, receives leg injuries when he is struck by a forklift truck while walking across the compound area. The forklift was being driven without authorisation by an employee of a sub-contractor who was in a hurry to get materials to his place of work.

The employee of the sub-contractors claims that the brakes on the truck were ineffective. The normal driver of the forklift truck, who was taking a scheduled break at the time of the accident, has refuted this claim and continues to drive the truck.

The injury was properly notified to the Health & Safety Executive (HSE) under the Reporting of Injuries, Diseases and Dangerous Occurrence Regulations 1995.

Two weeks later, the employees who had previously retired telephones the site manager to inform him that he has sustained an injury to his back while unloading bagged materials from a lorry.

1. The HSE safety inspector is due to visit the site in respect of the accident involving the forklift truck. Explain

§ The possible breaches of legislation that the inspector may refer to.

§ The legal options open to the inspector and the factors that may influence which options are decided upon.

2. Three days before the inspectors planned visit, you have been contacted by the site manager for advice. Prepare an action plan of any short and long terms measures that should be taken in order to demonstrate to the inspector a proactive response to the accident.

3. The company has received a letter from the retired employee’s solicitor (Document 1) in respect of a civil claim for damages. Outline any defences that may be used by JCLtd or its insurers, in disputing the claim.

Document 1

SMITH, PETER AND PARTNES

28 MAIN ROAD

WHERETOWN

HV35 3HN

12 December 2003

For the attention of the Company’s Legal Department

Dear Sir/Madam

Intention to instigate legal proceeding

We wish to inform you that we are acting on the behalf of Mr X, an employee of your company who sustained a debilitating back injury during the course of his employment with you on 14 November 2003.

It is our intention to pursue a claim for compensation by virtue of the following;

§ Negligence

§ Breach of statutory duty under the Management of Health and Safety at Work Regulations 1999 and the Manual Handling Operations Regulations 1992 in failing to provide a suitable and sufficient assessment of risks.

We look forward to your early response so that matters can be favourably resolved.

Yours faithfully

G. W. Smith, LLB (Solicitor)

Answer

Issues to consider are

§ Size of works and duration CDM – notify the HSE (duties on respective parties).

§ Access road – pedestrian traffic plan in place, risk assessments.

§ Use of forklifts – Provision and Use of Work Equipment Regulations, Lifting Operations and Lifting Equipment Regulations, Personal Protective Equipment (PPE) and Manual Handling Operations’ Regulations, Safe Systems of Work in Place, Risk Assessment and Competence of Driver.

§ Main contractor responsibilities to sub-contractors (Section 3 HSAWA duties) instruction, training, supervision, induction, tool box talks.

§ Young person risk assessment has to be specifically undertaken under the MHSAWR Regulations.

§ Mechanical defects and potential lack of maintenance over plant and equipment.

§ Delay in reporting back injury – time span, past medical record/absence record, contributory negligence factors, witnesses and previous training record.

Possible breaches of legislation are

§ Health and Safety at Work Act 1974: Sections 2 (own employees) 3 (sub-contractors).

§ Management of Health and Safety at Work Regulations 1999: Reg 3 Risk Assessment, Reg 4 Health and Safety Arrangements, Reg 10 Information to Employees, Reg 11 Lack of Co-operation and Coordination, Reg 15 Temporary Workers and Reg 19 Young Persons.

§ CDM Reg 9 Non-notification, Reg 16 Duties of Principal Contractors, Reg 19 Duties of Contractors. Schedule 3 Safe place of Work, Traffic Routes, Vehicles.

§ Likely breaches under Provision and Use of Work Equipment Regulations, Lifting Operations and Lifting Equipment Regulations, PPE Regulations and Manual Handling Operations Regulations.

Possible legal options open to the inspector are

§ HSAWA Section 22: a prohibition notice is issued when the inspector holds the opinion that the activities involve, or may involve, the risk of serious personal injury.

§ HSAWA Section 21: improvement notice is served on the person responsible for the breach of the law, however, if this is an employee meeting their employment obligations, then the notice is served on the employer.

Inspector is likely to refer to and be influenced by

§ Risk(s) presented.

§ Gravity of the alleged offences.

§ History of the business in terms of previous compliance.

§ Confidence in the management of the business.

§ Effectiveness of a particular action and likelihood of compliance.

Possible short-term measures could include

§ Conducting a thorough investigation into the cause of the accident. Isolation of the work area and suspension of work activities of loading/unloading. Removal of the forklift truck from service and thorough examination. Interviewing of relevant personnel.

§ Identification of any corrective action and the implementation of appropriate measures to prevent a reoccurrence. Risk assessment including young person risk assessment must be in place, ensure safe systems of work, address competence and training issues, and ensure adequate supervision is in place. Remorse over the accident.

Long-term measures are improved co-operations and communication between principal and sub-contractors.

§ Develop a more proactive approach to health and safety and the generation of a health and safety culture.

§ Exercise more effective control over work activities through effective planning, organisation, control, monitoring and review of preventative and protective measures (HSG 65).

§ Quality assurance.

§ Follow the hierarchy of controls with view to risk avoidance through to taking effective measures to avert any risks attached to workplace activities.

§ Demonstrate a top-down holistic prevention policy approach to health and safety.

Likely defences issues are

§ Delay in the placement of his complaint (2 week) no complaint was made when it was first known. (What date did this occur and who witnessed it?)

§ Never complained to anyone in authority in respect of the back complaint.

§ Never undertook any first aid or time off work due to the complaint in question.

§ Timely that this has now become apparent after the unrelated accident has occurred pending HSE inspection.

§ Previous medical history of back injury exists: past health surveillance reports, medical records.

§ Training record to prove that recent Manual Handling training had taken place.

§ Contributory negligence – operative used an incorrect lifting technique (witnessed by...).

§ Suitable and sufficient risk assessments were in place.

§ No breach of statutory duty is provided for, under the regulations quoted.

Surveying and Engineering: Principles and Practice